The U.S. Supreme Court today struck down the 2015 government debt calls exception from the Telephone Consumer Protection Act (TCPA), which makes calling cell phones for research purposes legally hazardous, as a content-based restriction on speech. Dashing the hopes of many TCPA watchers built up during oral arguments, the decision in Barr v. AAPC left the TCPA overall intact.

“With the Supreme Court declining to strike down the rest of the TCPA’s troublesome restrictions on phone calls and texts from legitimate actors,” commented Howard Fienberg, VP Advocacy of the Insights Association, “it is still up to the Federal Communications Commission (FCC) to issue long-overdue reform of their TCPA regulations. The marketing research and data analytics industry has been waiting for such reform since March 2018, when our association and others prevailed against the FCC’s 2015 rules in a DC Circuit Court case. Also still in the wings is an FCC response to a related Insights Association / AAPOR petition seeking a legal differentiation between marketing and research in the TCPA.” 

Background: the TCPA government debt call exemption

The exemption for federal government debt collection calls was snuck into a budget deal in fall 2015. Section 301 of the bill amended TCPA to exempt a call that “is made solely to collect a debt owed to or guaranteed by the United States.” An FCC ruling in 2016 implementing that carveout clarified that TCPA restrictions do not apply to calls “made by or on behalf of the federal government in the conduct of official government business, except when a call made by a contractor does not comply with the government’s instructions. The TCPA continues to apply to non-governmental activities including… political campaign events conducted by federal officeholders.” A report and order from the FCC later in 2016 sharply limited the government call exemption for government debt collection calls. 

The plaintiffs, led by the American Association of Political Consultants (AAPC), had argued back in 2016 that the TCPA’s exception for government debt collection calls was an unconstitutional “content-based” restriction, and an “underinclusive” ban that has no “neutral justification.” Given that, the groups argued that the whole TCPA statute should be overturned as unconstitutional.

While the district court in the case agreed that the exception was a content-based speech regulation, but that the law should survive regardless because of the federal government's “compelling interest in collecting debt.” The appeals court similarly ruled that it was a speech restriction, but said that the law could not withstand strict scrutiny and was therefore unconstitutional, but that the exemption was severable.

Where the different justices landed on the case

  • Justices Brett Kavanaugh, Clarence Thomas and Samuel Alito, and Chief Justice John Roberts concluded that the exemption was a First Amendment violation.
  • The “robocall restriction, with the government-debt exception, is content based because it favors speech made for the purpose of collecting government debt over political and other speech,” the justices said.
  • While tipping their hat to the Justice Department's argument that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” the justices responded that the TCPA exemption “does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers.” The exemption “cannot satisfy strict scrutiny” and the federal government “has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech.”
  • Kavanaugh, Roberts and Alito determined that the exemption was “severable” from the rest of the TCPA because it is part of the Communications Act “which has contained an express severability clause since 1934.” Even if not, the justices insisted that the exemption would still be severable from the rest of the law. “The remainder of the law is capable of functioning independently and would be fully operative as a law. Severing this relatively narrow exception to the broad robocall restriction fully cures the First Amendment unequal treatment problem and does not raise any other constitutional problems.”
  • Justice Linda Sotomayor “concluded that the government-debt exception fails under intermediate scrutiny and is severable from the rest of the Act.”
  • Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan said that they “would have upheld the government-debt exception, but given the contrary majority view, agreed that the provision is severable from the rest of the statute.”
  • Justice Neil Gorsuch “concluded that content-based restrictions on speech are subject to strict scrutiny, that the Telephone Consumer Protection Act’s rule against cellphone robocalls is a content-based restriction, and that this rule fails strict scrutiny and therefore cannot be constitutionally enforced.”

The majority decision

Justice Kavanaugh wrote the majority opinion. He hailed public distaste for “robocalls” (a term, as usual, undefined) and how helpful TCPA has been as part of Congress’ role in “fighting back” against them for the past thirty years.

Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. … Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. … As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.

Under the TCPA exemption, Kavanaugh wrote, “the legality of a robocall turns on whether it is ‘made solely to collect a debt owed to or guar- anteed by the United States.’ A robocall that says, ‘Please pay your government debt” is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”

The justice insisted that the decision “fits comfortably within existing First Amendment precedent” and was “not intended to expand existing First Amendment doctrine or to otherwise affect traditional or ordinary economic regulation of commercial activity.” Kavanaugh noted that while “collecting government debt is no doubt a worthy goal,” the federal government had conceded that it hadn’t “sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.”

The plaintiffs had argued that the 2015 government debt carveout from the TCPA “undermines the credibility” of the federal government's “asserted interest” in using the TCPA to protect consumer privacy. Arguing that Congress no longer had "a genuine interest in consumer privacy,” they argued that the "underlying” TCPA restriction on calls to cell phones “is no longer justified... and is therefore now unconstitutional.”

The majority decision rejected that argument, since “the government-debt exception is only a slice of the overall robocall landscape. This is not a case where a restriction on speech is littered with exceptions that substantially negate the restriction. On the contrary, even after 2015, Congress has retained a very broad restriction on robocalls. …The continuing robocall restriction proscribes tens of millions of would-be robocalls that would otherwise occur every day. Congress’s continuing broad prohibition of robocalls amply demonstrates Congress’s continuing interest in consumer privacy.

Kavanugh asserted that Congress can care about government debt collection and consumer privacy protection at the same time, without one negating the other, so there was no justification to strike down the whole statute.

The majority decision then cited extensive prior SCOTUS decisions that “steered the Court to a presumption of severability. Applying the presumption, the Court invalidates and severs unconstitutional provisions from the remainder of the law rather than razing whole statutes or Acts of Congress. Put in common parlance, the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress). Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.

In a biting footnote on severability, Kavanaugh pointed out that the Supreme Court should perhaps more rightly have focused on whether or not to strike down the whole budget act instead of the TCPA, since the offending exemption originated there: “That is the kind of free-wheeling policy question that the Court’s presumption of severability avoids.”

Further, since the TCPA amended the Communications Act of 1934 contains a severability clause, the majority determined that the TCPA didn’t need a severability clause of its own.

“When the constitutional violation is unequal treatment, as it is here, a court theoretically can cure that unequal treatment either by extending the benefits or burdens to the exempted class, or by nullifying the benefits or burdens for all,” Kavanugh continued. In this case, policymakers “would prefer to cure the unequal treatment by extending” the restrictions to nearly all calls, while the plaintiffs would prefer to nullify the restrictions entirely, “thereby allowing all robocalls to cell phones.” However, Kavanaugh wrote, the TCPA exemption for government debt calls “is a relatively narrow exception to the broad robocall restriction, and severing the government-debt exception does not raise any other constitutional problems,” despite the plaintiffs arguing that a court shouldn't cure “a First Amendment violation by outlawing more speech.”

Most importantly, Kavanaugh emphasized, invalidating the whole TCPA “would end up harming a different and far larger set of strangers to this suit—the tens of millions of consumers who would be bombarded every day with nonstop robocalls notwithstanding Congress’s clear prohibition of those robocalls.”