Earlier this week, the Supreme Court issued its long-awaited decision in Barr v. American Association of Political Consultants, a First Amendment challenge to the Telephone Consumer Protection Act (TCPA). The bottom line:  The TCPA as we know it lives on (at least for now).

The plaintiffs who challenged the statute contended that because the TCPA’s bar on unsolicited autodialed calls or texts contained an exception for communications aimed at collecting U.S. government debt, that differing treatment amounted to is an impermissible content-based restriction on speech.  The Court splintered on two issues: (1) whether this exception was a First Amendment violation, and (2) if so, what’s the remedy?  A group of six Justices concluded that the TCPA contravened the First Amendment, and a differently composed group of seven Justices agreed that the proper remedy was to sever the government-debt exception rather than invalidate the autodialing restriction across the board.

Background

The TCPA forbids unsolicited non-emergency calls or texts to cell phones made using an automatic telephone dialing system. But in 2015, Congress amended the TCPA to authorize autodialed calls or texts seeking to collect a debt owed to or guaranteed by the federal government. The plaintiffs, organizations that wish to place autodialed calls or texts for political purposes, sued the government, alleging that this provision violates the First Amendment because it discriminates against political and other speech. The district court rejected that argument. The Fourth Circuit reversed, holding that the provision permitting debt-related autodialed calls and texts is unconstitutional and should be severed from the remainder of the statute. Both the government and the plaintiffs sought Supreme Court review; the government sought to preserve the government debt-collection exception, and the plaintiffs, believing that severance gave them no relief because they were still subject to the statute’s strictures, sought to have the autodialer provisions declared invalid in their entirety.

The Supreme Court’s decision

The Supreme Court affirmed both aspects of the Fourth Circuit’s ruling—the First Amendment and severability holdings—in a plurality decision that was joined in part by a number of separate opinions that concurred in part and dissented in part. Here was the line-up:

  • On the First Amendment issue, Justice Kavanaugh wrote the plurality opinion holding that the government debt-collection exception to the TCPA was unconstitutional. Chief Justice Roberts and Justices Thomas and Alito joined this aspect of the plurality. Justices Sotomayor’s and Gorsuch’s separate partial concurring opinions both agreed with this result, for different reasons. And Justice Breyer’s separate opinion, which Justices Ginsburg and Kagan joined, dissented from this holding. Thus, the First Amendment holding was 6-3.
  • On the remedy issue, Justice Kavanaugh’s plurality opinion concluded that the government debt-collection exception should be severed. Chief Justice Roberts and Justice Alito joined this portion of the plurality. Justices Breyer and Sotomayor’s separate opinions each agreed with this result, with Justices Ginsburg and Kagan joining Justice Breyer’s opinion. Justice Gorsuch dissented from this holding, joined by Justice Thomas. Thus, the severability holding was 7-2.

First Amendment issue

In defending the TCPA, the government had argued strenuously that the government-debt exception did not cause the statute to be a content-based restriction on speech. For example, the government contended that the law was content-neutral because the exception applied based on the identity of the speaker or the speaker’s economic activity, rather than the content of the speech. The Justices unanimously rejected those arguments, agreeing that the TCPA was content-based, triggering some form of heightened scrutiny. But the Justices divided on whether to apply strict scrutiny—which the government conceded that the TCPA could not survive—or a lower level of intermediate scrutiny. And the Justices who reasoned that only intermediate scrutiny applied disagreed on whether the TCPA survived that scrutiny.

Five Justices concluded that strict scrutiny applied because, in their view, prior precedent dictates that strict scrutiny apply to any content-based restriction on speech. Specifically, Justice Kavanaugh’s plurality opinion (joined in this part by Chief Justice Roberts and Justices Thomas and Alito) and Justice Gorsuch’s partial concurrence agreed on this point. Justices Sotomayor, Breyer, Ginsburg, and Kagan would have applied intermediate scrutiny instead. According to Justice Breyer’s opinion, content-based restrictions that pertain solely to commercial speech and have “next to nothing to do with the free marketplace of ideas or the transmission of the people’s thoughts and will to the government” should be subject to only intermediate scrutiny.  He raised the possibility that the majority’s approach would threaten the constitutionality of “the regulation of securities sales, drug labeling, food labeling, false advertising, workplace safety warnings, automobile airbag instructions, consumer electronic labels, tax forms, debt collection, and so on,” which all “necessarily involve content-based speech distinctions.”

The four Justices who would apply intermediate scrutiny then disagreed about whether the TCPA’s government-debt exception survived that scrutiny. Justice Sotomayor concluded that it did not, explaining that even if the government has a sufficiently compelling need to collect government debt, the content-based distinction was not narrowly tailored to that goal. For example, she explained, the exception could have been limited to recipients who consented to be called or to calls made by government-employed debt collectors. And the statute continued to bar other types of “important” autodialed calls, “such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.” Justice Breyer, joined by Justices Ginsburg and Kagan, reasoned that the government-debt exception was sufficiently tailored because the “speech-related harm” on “the marketplace of ideas” is “modest” and only calls made “solely” to collect on government debt were exempted.

Severability analysis

Having found a First Amendment violation, the question of remedy presented the Court with a choice—whether to “level up” by eliminating the government-debt exception, requiring everyone to comply with the TCPA’s autodialing restrictions, or “level down” by invalidating the restriction on speech (here, the autodialing restriction).

Seven Justices—all but Justices Gorsuch and Thomas—agreed that the appropriate remedy here was to sever the government-debt exception. They noted that the Communications Act has an express severability clause covering the chapter in which the TCPA appears. And even without a severability provision, these seven concluded that default severability principles would lead to the same result because the TCPA could “function[] independently” without the government-debt exception (and did so until that exception was added in a 2015 amendment). Moreover, the plurality added, eliminating the exception “does not raise any other constitutional problems” that might impel the Court to abrogate the speech restriction across the board rather than simply sever the exception, as the Court had done in some equal-protection cases.

Justice Gorsuch (joined by Justice Thomas) objected that the majority’s severability analysis left the plaintiffs with no relief at all—they had proven that the TCPA violated the First Amendment, and the result was that their speech was still forbidden. In fact, Justice Gorsuch contended, the remedy “harms strangers to this suit” by unexpectedly outlawing all unsolicited autodialed calls and texts to collect on government debt. Justice Gorsuch also disagreed with the majority’s analogy to equal-protection principles.  In his view, although the Equal Protection Clause is concerned only with equality, and thus is indifferent to leveling up or leveling down, the First Amendment is concerned with limiting restrictions on speech, and thus presumptively requires leveling down any speech restrictions.

Implications

The result in this case was expected after the oral arguments in early May, but nonetheless is disappointing to TCPA defendants. For now, the TCPA’s restrictions on autodialing remain intact. But the Court will likely find it necessary to examine the statute again.   There is a mature circuit split over the meaning of the TCPA’s autodialer language—that is, the statute’s definition of the term “automatic telephone dialing system.”  That issue is ripe for Supreme Court review and could be soon granted. (For example, the pending petition for certiorari in Facebook, Inc. v. Duguid presents this issue.)

In addition, the debate over whether strict or intermediate scrutiny applies to the TCPA signals that the majority’s approach may open the door to First Amendment challenges to other content-based discrimination with respect to certain types of speech. Readers should stay tuned for further developments in this area.

 

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