Barr v. Am. Ass'n of Political Consultants - 140 S. Ct. 2335 (2020)

Rule:

The robocall restriction of 47 U.S.C.S. § 227(b) with the government-debt exception is content-based. Under the U.S. Supreme Court’s precedents, a law that is content based is subject to strict scrutiny.

Facts:

In response to consumer complaints, Congress passed the Telephone Consumer Protection Act of 1991 (TCPA) to prohibit, inter alia, almost all robocalls to cell phones. In 2015, Congress amended the robocall restriction, carving out a new government-debt exception that allowed robocalls made solely to collect a debt owed to or guaranteed by the United States. The American Association of Political Consultants and three other organizations that participated in the political system filed a declaratory judgment action, claiming that §227(b)(1)(A)(iii) violated the First Amendment. The District Court determined that the robocall restriction with the government-debt exception was content-based but that it survived strict scrutiny because of the Government's compelling interest in collecting debt. The Fourth Circuit vacated the judgment, agreeing that the robocall restriction with the government-debt exception was a content-based speech restriction, but holding that the law could not withstand strict scrutiny. The court invalidated the government-debt exception and applied traditional severability principles to sever it from the robocall restriction.

Issue:

Did the government-debt exception to the robocall restriction violate the First Amendment?

Answer:

Yes.

Conclusion:

The Court held that the government-debt exception to the TCPA's robocall restriction, 47 U.S.C.S. § 227(b)(1)(A)(iii), was a content-based restriction, which did not withstand the applicable strict scrutiny under the First Amendment because the government's stated justification of collecting government debt did not justify the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising. The U.S. Supreme Court cured the constitutional violation by invalidating the government-debt exception to the TCPA and by severing this provision from the remainder of the statute and leaving the remainder of the TCPA intact.