This week, a divided Supreme Court issued a plurality opinion in Barr v. American Association of PoliticalConsultants, Inc. (Political Consultants) striking down and severing a 2015 amendment to the TCPA, which exempts government debt collection calls (government debt exemption) from the statutes general prohibition on calls to cell phones (cell phone ban). The effect of this ruling was to affirm the Fourth Circuits decision and leave the cell phone ban intact.

A majority of justices agreed that the government debt exemption violated the First Amendment but disagreed as to everything else: whether strict or intermediate scrutiny governed the First Amendment analysis, whether the government debt exemption failed that analysis and whether the severability and equal protection principles applied by the plurality constitute an appropriate remedy. In focusing on their disagreements, the Justices largely ignored the issue of political speech and the generous First Amendment protection usually afforded it.

The plurality opinion was drafted by Justice Kavanaugh, joined in full by Justices Robert and Alito and in part by Justice Thomas. Kavanaugh began by offering this choice observation: Americans passionately disagree about many things. But they are largely united in their disdain for robocalls. (Kavanaugh Slip Op. at 1). The pluralitys perception of public opinion appears to have been the main driver of its decision and the analysis used to reach its destination (upholding the TCPA) was relatively straightforward.

First, Kavanaugh found that the government debt exemption was a content-based restriction on speech subject to strict scrutiny and that the government conceded that the exemption could not survive strict scrutiny. In doing so, Kavanaugh rejected the AAPCs argument that Congresss act of passing the government debt exemption in 2015, which permits what many consumers view as the most annoying and intrusive type of calls (debt collection), revealed that Congress did not have (or at least no longer had) a genuine concern for consumer privacy. Instead, the AAPC contended, Congress was only concerned with collecting debt owed to the federal government. But, wrote Kavanaugh, As is not infrequently the case with either/or questions, the answer to this either/or question is both. Congress is interested both in collecting government debt and protecting consumer privacy. (Kavanaugh Slip Op. at 11). Second, Kavanaugh determined that severance was appropriate under both general severability and equal treatment principles, which allow unconstitutional laws to be cured by either extending the benefits or burdens to the exempted class, sometimes referred to as leveling up or down. (Kavanaugh Slip Op. at 17-20).

Justices Sotomayor, Breyer, Ginsburg and Kagan concurred in the judgment of the plurality with respect to severability, but wrote separately to emphasize their belief that strict scrutiny did not apply. Sotomayor found that the government debt exemption failed strict scrutiny, while Beyer, Ginsburg, and Kagan found it did not and expressed concern that the plurality was using the First Amendment in a way that could threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas enacted as a result of that public discourse. (Breyer Slip. Op. at 4).

Justice Gorsuch agreed with the pluralitys finding that the government debt exemption was subject to strict scrutiny and violated the First Amendment but disagreed as to why. Of all of the Justices, Gorsuch was most sympathetic to the AAPCs argument that the governments consumer privacy rationale was suspect: [If] the government thinks consumer privacy interests are insufficient to overcome its interest in collecting debts, its hard to see how the government might invoke consumer privacy interests to justify banning political speech. (Gorsuch Slip Op. at 3). Gorsuch and Thomas were also most concerned with protecting speech and affording the AAPC a real remedy. Instead of severing the government debt exemption, which has the perverse effect of expanding the TCPAs restrictions on speech, Gorsuch and Thomas would have leveled up expanded the benefits afforded government debt collection speech to political speech by awarding the AAPC a novel remedy: an injunction prohibiting the TCPAs application to political speech. (Id. at 5).

Takeaways and stray observations:

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A Fractured Supreme Court Strikes Down and Severs the TCPAs Government Debt Exemption, Leaving the Rest of the Statute Intact - JD Supra