Barr v. American Association of Political Consultants (2020)

The short version

The Supreme Court invalidated a 2015 exception to the Telephone Consumer Protection Act (TCPA) that allowed robocalls to cell phones made to collect debts owed to or guaranteed by the federal government. The Court then severed that exception from the rest of the law. The result: the TCPA's general restriction on robocalls to cell phones stayed in place, and the government-debt exception was removed.

Background

The TCPA, at 47 U.S.C. § 227(b)(1)(A)(iii), generally prohibits calls to cell phones made with an autodialer or an artificial or prerecorded voice unless the call is made for emergency purposes or with the called party's prior express consent. In 2015, however, Congress added an exception for calls "made solely to collect a debt owed to or guaranteed by the United States."

The American Association of Political Consultants and three other organizations involved in political activity sued. They argued that the restriction, combined with the government-debt exception, favored one kind of speech (debt collection on behalf of the government) over others, including political speech, in violation of the First Amendment.

The district court held that the law was content based but survived strict scrutiny. The Fourth Circuit disagreed, held that the law failed strict scrutiny, and severed the government-debt exception. The government petitioned the Supreme Court to review the decision.

What the Court decided

The Court affirmed the Fourth Circuit. In a case with no majority opinion, the Court's decision reflects the views of several opinions:

• The exception was unconstitutional. Justice Kavanaugh, joined by Chief Justice Roberts and Justices Thomas and Alito, concluded that the government-debt exception made the robocall restriction a content-based restriction on speech that could not survive strict scrutiny. Justice Sotomayor reached the same result under intermediate scrutiny. Justice Gorsuch, joined in part by Justice Thomas, would have gone further and held the robocall restriction itself could not be enforced.
• The exception was severed. Justice Kavanaugh, joined by Chief Justice Roberts and Justice Alito, concluded that the exception could be cut from the statute, relying on the Communications Act's severability clause and the general presumption of severability. Justice Sotomayor agreed. Justice Breyer, joined by Justices Ginsburg and Kagan, would have upheld the exception but agreed that, given the majority's view, it was severable. That made seven justices in favor of severance.

Why it matters

• The robocall restriction survived. Businesses challenging the robocall restriction had argued that if the government-debt exception was invalid, the entire cell phone robocall restriction should fall. The Court disagreed and thus the core TCPA robocall restriction survives.
• Government-debt collectors lost their carve-out. Calls to collect federal government debts are now treated like other calls under § 227(b).
• Liability for past calls. In a footnote, Justice Kavanaugh's opinion said that the decision "does not negate the liability of parties who made robocalls covered by the robocall restriction." Anyone relying on this footnote for robocalls made while the exception was in place should consult a lawyer about how courts in their jurisdiction have applied it.