Case No. 19-631 | 4th Cir.
May 6, 2020
Preview by Austin Martin, Senior Online Editor
In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) which, in part, bans calls to cellphones made by automated telephone machines or artificial or prerecorded voices. 47 U.S.C. § 227(b)(1)(A)(iii) (2018). In 2015, Congress created an exception to this rule for cellphone calls “made solely to collect a debt owed to or guaranteed by the United States.” Id. Respondents are a group of political consultants who wish to use automated cellphone calls as a cost-effective means of conducting political polls, soliciting donations, encouraging voter turnout, and other political activities. The TCPA, however, stands in their way.
Respondents now challenge the TCPA and its government-debt exception as an unconstitutional “content-based” restriction on the First Amendment right to freedom of speech. If the Court agrees on that issue, it must also decide whether severing the exception is the proper remedy.
Respondents argue that the government-debt exception makes the TCPA’s automated call restriction content-based because the restriction’s applicability turns on the subject matter of the phone call. They argue that “[i]f a caller discusses only the collection of a government backed-debt, then he is not subject to any liability; but, if the subject-matter of the conversation changes to a different topic,” the call becomes prohibited. Brief for Respondents at 13-14, Barr v. Am. Ass’n of Political Consultants, No. 19-631 (U.S. filed Mar. 25, 2020). Content-based restrictions on speech receive strict scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Respondents argue that the TCPA and government-debt exception fail this test because protecting the public from unwanted communication is not a compelling interest and the law is overly broad.
The Government contends that neither the TCPA’s automated call restriction nor the government-debt exception discriminate on content, but rather conduct surrounding a particular economic activity: owing and collecting upon a government-backed debt. Thus, the Government argues that only intermediate scrutiny should apply to both. The Government asserts that the TCPA’s automated call restriction serves a significant government interest by protecting individual privacy and is narrowly tailored to only prohibit calls by automated machines. Reply Brief for Petitioners at 11, Barr v. Am. Ass’n of Political Consultants, No. 19-631 (U.S. filed Apr. 24, 2020). The government-debt exception, it is argued, serves a significant interest in assisting quick collection of government-backed debt, and debt-collection calls “do not implicate the same privacy concerns as most other automated calls.” Id. at 8. Respondents reject the Governments arguments here largely for a lack of narrow tailoring. See Brief for Respondents at 32-33.
Should the Court find the government-debt exception unconstitutional, the Government argues that severing the exception is the preferred remedy because Congress specifically indicated that any provision held invalid shall not affect the rest of the TCPA. See 47 U.S.C. 608 (2018). Respondents argue that to invalidate only the government-debt exception without invalidating the entire TCPA “penaliz[es] more speech.” Brief for Respondents at 33 (emphasis in original). They contend that severance alone does not remedy the TCPA’s unconstitutionality because it is the automated call restriction that must fail, not just the exception to the restriction, in order to protect speech. See Id. at 44-45.
Respondents have a lot on the line in this decision, as a decision in their favor could heavily impact campaign strategy in the upcoming election season. The COVID-19 pandemic is already forcing campaigns to rethink their outreach strategies as volunteers and voters are far more difficult to mobilize under stay-at-home orders. As much as consumers dislike “robocalls,” the Court may find them worthy of First Amendment protection, nonetheless.