Opinion analysis: Fractured court rules in favor of political consultants in First Amendment challenge to federal robocall law but keeps robocall ban in place

On Monday, in a fractured set of opinions, the Supreme Court ruled in favor of an association of political consultants challenging the Telephone Consumer Protection Act of 1991. That statute bans robocalls to cellphones. In 2015 Congress added an exception to permit robocalls collecting government-backed debts. In Barr v. American Association of Political Consultants, the court decided that the 2015 exception violates the First Amendment’s speech clause. The consultants won the constitutional argument, but they did not achieve the practical result they sought. Instead of striking down the robocall ban altogether, the court invalidated only the exception. After the court’s ruling, political robocalls are still illegal, but so are robocalls to collect government-backed debts — showing, perhaps, that dislike of robocalls spans ideological differences.

In 1991, Congress passed the TCPA, which prohibits automated calls—that is, calls made by an automatic telephone dialing system or that use an artificial or prerecorded voice—to cellphones. Twenty-four years later, in 2015, Congress amended the act to add an exception for calls made to collect a debt owed to or guaranteed by the federal government.

A group of political and nonprofit organizations brought suit, arguing that the law violates the First Amendment’s speech clause. They wanted to make political robocalls, including in the run-up to the 2020 elections, but were prohibited from doing so by the TCPA. The consultants argued that the law is “content based” — a First Amendment term signifying that a law applies differently, or at all, depending on the content of the expression. They pointed to the act’s government-backed-debt exception, arguing that callers can make robocalls about some topics (government-backed loans) but not about others. The law, they said, unconstitutionally favors government-debt-collection speech over other speech, including political fundraising and messaging. Because the TCPA is content based, they contended, the most stringent form of First Amendment review — called “strict scrutiny” — should apply, and under that standard the law could not survive. The consultants asked that the entire 1991 robocall ban be struck down.

The U.S. Court of Appeals for the 4th Circuit concluded that the 2015 exception was content based and unconstitutional, but did not give the consultants the relief they sought.  Instead, it removed, or severed, the 2015 exception from the statute, leaving in place the rest of the TCPA’s cellphone robocall ban. The Supreme Court agreed to review that ruling last winter, and on Monday the justices affirmed the 4th Circuit’s decision.

Justice Brett Kavanaugh announced the judgment of the court and issued a plurality opinion that Chief Justice John Roberts and Justice Samuel Alito joined fully and Justice Clarence Thomas joined with respect to the First Amendment analysis but not the remedy.

Kavanaugh began by noting that “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.”  “Above all else,” he reaffirmed, “the First Amendment means that government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” He noted that although content based laws are subject to strict scrutiny, content neutral laws are subject to a lower level of scrutiny. Citing a key Supreme Court opinion from 2015, Reed v. Town of Gilbert, Kavanaugh stated that law is content based if “a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys,” including if it “singles out specific subject matter for differential treatment.”

The TCPA’s robocall restriction, with the 2015 exception, is content based under that standard. “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.”  The plurality rejected the government’s argument that the law depended not on content, but on whether a caller was engaged in a particular economic activity (collecting government debt). Kavanaugh also rejected the notion that if this statute is content based, so too are laws regulating debt collection. No such slippery slope exists, he maintained. “Our decision is not intended to expand existing First Amendment doctrine or to otherwise affect traditional or ordinary economic regulation of commercial activity.”

The government conceded that the TCPA’s government-debt exception could not satisfy strict scrutiny, and the plurality agreed. But Kavanaugh rejected the consultants’ contention that the 2015 exception “betray[ed] a newfound lack of genuine congressional concern for consumer privacy” and rendered the underlying robocall ban unjustified. In Kavanaugh’s view, Congress’ continuing general ban on robocalls even after 2015 — which “proscribes tens of millions of would-be robocalls that would otherwise occur every day,” — “amply demonstrates Congress’s continuing interest in consumer privacy.”

The plurality then addressed the proper remedy for the constitutional violation: either invalidation of the entire robocall ban, as the consultants wanted, or severance and invalidation of the 2015 exception. The court, the plurality explained, generally follows express severability (or nonseverability) clauses that Congress includes in laws and, in the absence of such laws, applies a strong presumption that an unconstitutional provision is severable as long as the remainder of the law is capable of functioning independently. This is a sound approach, Kavanaugh reasoned, because it ensures that “the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress).”

Because the Communications Act, which the TCPA amended, contains a severability clause, and the TCPA is able to function independently, as it did for 24 years before the exception was added, the plurality concluded that the 2015 exception had to be severed.

Kavanaugh went on to address a “final severability wrinkle”: whether, because “the constitutional violation is unequal treatment,” the court is required to level up, by “extending the benefits or burdens to the exempted class,” or level down, “by nullifying the benefits or burdens for all.” “To be sure, some equal-treatment cases can raise complex questions about whether it is appropriate to extend benefits or burdens, rather than nullifying the benefits or burdens,” he wrote, but the court need not tackle all of those issues in this case. Under traditional severability principles, the exception should be invalidated. And because “[a] generally applicable robocall restriction would be permissible under the First Amendment,” extending the ban raises no First Amendment problem. “As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.”

Justice Sonia Sotomayor filed an opinion concurring in the judgment. In her view, “strict scrutiny should not apply to all content-based distinctions,” as the partial dissent by Justice Stephen Breyer argued. But she concluded that the government-debt exception still fails less stringent, intermediate scrutiny because it is not “narrowly tailored to serve a significant governmental interest.” Even under intermediate scrutiny, she concluded, the government had not sufficiently explained how a debt-collection robocall about a government-backed debt “is any less intrusive or could be any less harassing than a debt-collection robocall about a privately backed debt.” Sotomayor agreed with the plurality that the exception was severable and that only that portion of the robocall ban should be invalidated.

Breyer, joined by Justices Ruther Bader Ginsburg and Elena Kagan, disagreed that the TCPA violated the First Amendment, but concurred in the judgment with respect to severability, agreeing that the overall robocall ban should survive.

Breyer argued that the plurality opinion is based upon an overly simplistic understanding of content neutrality that is “divorced from First Amendment values.” “This case primarily involves commercial regulation,” Breyer maintained, and shouldn’t face “‘strict scrutiny’ based on ‘content-discrimination,’” with its strong presumption of unconstitutionality.

Breyer articulated a scholarly, democracy-based approach to the First Amendment. “For our government to remain a democratic republic,” he explains, “the people must be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences.” He continued:

From a democratic perspective, however, it is equally important that courts not use the First Amendment in a way that would threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas enacted as result of that public discourse. … Otherwise, our democratic system would fail, not through the inability of the people to speak or to transmit their views to government, but because of an elected government’s inability to translate those views into action.

In Breyer’s view, “[t]o reflexively treat all content-based distinctions as subject to strict scrutiny regardless of context or practical effect” is an overly blunt approach “untethered from the First Amendment’s objectives.” Debt collection has “next to nothing to do with the free marketplace of ideas” and “everything to do … with government response to the public will through ordinary commercial regulation.” The government-debt exception should therefore face a form of intermediate, not strict, scrutiny, and under that standard, it is constitutional.

Breyer focused on the implications of content neutrality analysis for ordinary economic regulation. The plurality, he noted, claims that its approach will not affect that kind of regulation. “But how is that so?” he asked. “Much of human life involves activity that takes place through speech. And much regulatory activity turns upon speech content.” Breyer noted, for example, the regulation of securities sales, drug labeling and tax forms, among others. To treat “all content-based distinctions on speech as presumptively unconstitutional,” he maintained, “is unworkable and would obstruct the ordinary workings of democratic governance.” It is also inconsistent with First Amendment jurisprudence, which has long looked to context; the categorical approach taken by the plurality, he argued, is “both wrong and reflects an oversimplification and over-reading of our precedent.”

Finally, Justice Neil Gorsuch filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas joined as to remedy. Like the plurality, Gorsuch concluded that the TCPA’s rule against cellphone robocalls is a content-based restriction that fails strict scrutiny. Gorsuch importantly diverged from the plurality as to remedy. He would hold that the consultants are entitled to an injunction preventing the TCPA from being enforced against them. The plaintiffs, he contended, did not challenge the government-debt exception and might not even have a legal right to do so. The judgment “does nothing” to address the plaintiffs’ injury: After Monday’s ruling, the law bars them from “using robocalls to promote political causes just as stoutly as it did before.” “What is the point of fighting this long battle, through many years and all the way to the Supreme Court, if the prize for winning is no relief at all?” Nor did Gorsuch find equal protection doctrine helpful to the question of remedy. “That doctrine promises equality of treatment, whatever that treatment may be. The First Amendment isn’t so neutral. It pushes, always, in one direction: against governmental restrictions on speech.” “Yet, somehow, in the name of vindicating the First Amendment,” the plurality’s ruling means “more speech will be banned.”

Altogether, six members of the court (Roberts, Thomas, Alito, Sotomayor, Gorsuch and Kavanaugh) joined to hold the robocall ban unconstitutional. And seven (Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan and Kavanaugh) concluded that only the 2015 exception, not the broader ban, should be invalidated.

The case was closely watched because it could have had a significant impact on political advertising in the run-up to the 2020 election. The court’s ruling avoided that outcome. Monday’s fractured opinions reveal, however, that the justices disagree fundamentally about broader First Amendment principles, including the constitutional rules surrounding content neutrality and economic regulation, as well as constitutional remedies. We will have to wait for another case (at least) to see how those disagreements develop. In the meantime, at least we won’t be getting any more robocalls.