July 6, 2020

US Supreme Court leaves TCPA’s general robocall prohibition intact

On July 6, 2020, the US Supreme Court held that the Telephone Consumer Protection Act’s government-debt exception to the law’s general prohibition on robocalls to cellphones was a content-based speech restriction that violates the First Amendment.  In Barr v. American Association of Political Consultants, Inc., a group of political and nonprofit organizations challenged the TCPA on the basis that its robocall prohibition violates the First Amendment because it unconstitutionally favors government debt-collection speech over other types of speech.  Specifically, the political organizations wanted to make political robocalls to consumer cellphones, which are prohibited by the TCPA.  In arguing that the entire TCPA robocall prohibition violates the First Amendment, the political organizations pointed to a 2015 TCPA amendment that carved out an exception from the robocall prohibition for robocalls that are made to collect debts owed to, or guaranteed by, the federal government.  But rather than argue that the government debt collection robocall exception should be invalidated and severed from the remainder of the TCPA, the political organizations insisted that the TCPA’s entire robocall prohibition should be invalidated.

The US District Court for the Eastern District of North Carolina agreed with the plaintiffs, concluding that the 2015 TCPA amendment impermissibly favored one type of speech over another based on its content—government debt-collection robocalls were permitted by the amendment, whereas other robocalls were not—and therefore evaluated the amendment with strict scrutiny.  The District Court concluded that the 2015 amendment survived strict scrutiny because the government has a compelling interest in collecting debts.  On appeal, the Fourth Circuit agreed that the 2015 amendment constituted a content-based restriction, but concluded that the provision could not withstand strict scrutiny and violated the First Amendment.  The Court of Appeals applied a traditional severability analysis to determine that the government-debt exception could be invalidated and severed from the remainder of the TCPA.

The government petitioned the US Supreme Court for a writ of certiorari to defend the law, including the 2015 amendment.  The plaintiffs supported the certiorari petition but argued that the Court of Appeals should have invalidated the entire robocall restriction.  The Court agreed with the Fourth Circuit that the government-debt exception was an unconstitutional content-based exception to the TCPA, but rejected the plaintiffs’ argument that Congress’ 2015 exception undermined the validity of the TCPA’s restriction on other non-consensual robocall speech.  Instead, the Court applied the express severability clause of the Communications Act of 1934, to which the TCPA was appended in 1991, noting  that in even the absence of the severability clause, the government-debt exception would be severable from the body of the TCPA based on the presumption of severability generally applied by the courts.  The Court affirmed the Fourth Circuit’s judgment invalidating and severing the government-debt exception, but leaving the TCPA’s general prohibition on robocalls to cellphones intact.

US Supreme Court opinion