Barr v. American Association of Political Consultants, Inc.
591 U. S. ____ (2020) (2020)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
When a statutory provision unconstitutionally favors some speakers over others, the proper judicial remedy is typically to sever and invalidate the offending exception rather than striking down the entire underlying statute.
Facts:
- In 1991, Congress passed the Telephone Consumer Protection Act (TCPA), which prohibited most automated or prerecorded voice calls ('robocalls') to cellular telephones.
- The original TCPA contained exceptions for calls made for emergency purposes or with the prior express consent of the called party.
- In 2015, Congress amended the TCPA by enacting the Bipartisan Budget Act, which created a new exception allowing robocalls made 'solely to collect a debt owed to or guaranteed by the United States.'
- This amendment permitted robocalls for collecting government-backed debt, such as federal student loans and mortgages, but continued to prohibit them for other purposes.
- The American Association of Political Consultants, Inc., and other political and civic organizations wanted to use robocall technology to make calls concerning political advocacy and fundraising.
- The TCPA, as amended in 2015, barred these organizations from making political robocalls while simultaneously permitting robocalls for the purpose of collecting government debt.
Procedural Posture:
- The American Association of Political Consultants, Inc., and other organizations filed suit against the U.S. Attorney General and the FCC in the U.S. District Court for the Eastern District of North Carolina.
- The plaintiffs sought to enjoin enforcement of the TCPA's robocall ban, arguing it was an unconstitutional content-based speech restriction because of the 2015 government-debt exception.
- The District Court granted summary judgment for the government, holding that although the law was content-based, it survived strict scrutiny.
- The plaintiffs (appellants) appealed to the U.S. Court of Appeals for the Fourth Circuit, where the government was the appellee.
- The Fourth Circuit reversed, finding the government-debt exception was a content-based restriction that failed strict scrutiny.
- The appellate court held that the proper remedy was to sever the unconstitutional government-debt exception, leaving the remainder of the TCPA's robocall ban intact.
- The U.S. Supreme Court granted certiorari.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the 2015 government-debt exception to the Telephone Consumer Protection Act's general ban on robocalls to cell phones, which favors debt-collection speech over political and other forms of speech, violate the First Amendment's free speech clause?
Opinions:
Majority - Kavanaugh
Yes. The 2015 government-debt exception to the TCPA is a content-based restriction on speech that violates the First Amendment. The Court held that because the law favored speech for collecting government debt over other types of speech, such as political speech, it was a content-based regulation subject to strict scrutiny, a standard the government conceded it could not meet. The proper remedy for this constitutional violation is to sever the unconstitutional 2015 exception from the rest of the statute, leaving the original, broader 1991 robocall ban in place. This conclusion is supported by the Communications Act's express severability clause and, alternatively, by the Court's strong presumption in favor of severability. The Court's preference is for a 'surgical' remedy that fixes the constitutional flaw without destroying an entire legislative scheme that has been in operation for decades.
Concurring - Sotomayor
Yes. The government-debt exception is unconstitutional, but it fails even under intermediate scrutiny, not just strict scrutiny. The exception is not narrowly tailored because it is significantly underinclusive, permitting many of the intrusive calls the TCPA was designed to prohibit, while the government had less restrictive means to pursue its interest in debt collection. Justice Sotomayor agrees with the majority that severing the unconstitutional exception is the correct remedy.
Dissenting - Breyer
No. The government-debt exception does not violate the First Amendment. The plurality's reflexive application of strict scrutiny to all content-based distinctions is inappropriate for what is essentially an economic regulation. Under intermediate scrutiny, the exception is constitutional because it serves the important government interest of protecting the public fisc and is narrowly tailored to that interest. While disagreeing on the constitutional violation, Justice Breyer would agree with the majority's severability analysis if the provision were found to be unconstitutional.
Dissenting - Gorsuch
Yes. The TCPA's cellphone robocall provision is an unconstitutional content-based restriction. However, the majority’s remedy of severance is improper. Severing the government-debt exception provides no relief to the plaintiffs, who are still prohibited from making their political robocalls, and it unfairly harms third-party debt collectors who relied on the 2015 law. The correct remedy would have been a traditional injunction preventing the enforcement of the robocall ban against the plaintiffs, which would vindicate their rights without rewriting the statute and disrupting the entire industry.
Analysis:
This case solidifies the Supreme Court's modern approach to severability, establishing a strong default rule that courts should surgically remove an unconstitutional statutory exception rather than invalidate the entire law. This approach is framed as a form of judicial restraint that respects congressional intent and prevents litigants from using a minor flaw to topple a major legislative framework. The fractured opinions, however, reveal deep divisions on the Court regarding the proper level of scrutiny for content-based commercial speech regulations and the appropriate scope of judicial power to remedy unconstitutional statutes, particularly when the remedy benefits no one involved in the case.
