First Amendment News 262: Court holds automated-robocall government debt exception violates First Amendment — though it's complicated!

The case is Barr v. American Association of Political Consultants, Inc. It is the 56th First Amendment free expression case decided by the Roberts Court since 2005. The irony of the case is that, on the one hand, the Court struck down one portion of a federal law while, on the other hand, by doing so it broadened Congress's power to ban speech.

The issue raised in Barr was whether the government-debt exception to the Telephone Consumer Protection Act’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

While Justice Brett Kavanaugh announced the judgment of the Court, his was only a plurality opinion. As Professor Josh Blackman has observed: "Justice Kavanaugh's plurality opinion was joined by Chief Justice Roberts, Justice Alito, and Justice Thomas. However, Justice Gorsuch did not join the plurality's First Amendment analysis. As a result, there is no controlling opinion." Thus, the lineup of opinions was complicated. Here, however, is a sketch of what the lineup appears to be:

• Robocall call debt exception is unconstitutional (6 votes — Kavanaugh, Alito, Roberts, Gorsuch, Thomas and Sotomayor): "Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment."
• Government-debt exception does not violate the First Amendment (3 votes — Breyer, Ginsburg and Kagan).
• After severing debt exception, overall robocall restriction is now constitutional (7 votes — everyone except Gorsuch and Thomas): "[S]even Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute."
• Restrictions on all political and other robocalls to cell phones are constitutional (7 votes — everyone except Gorsuch and Thomas): "As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech."
• Strict scrutiny is the applicable standard in this case (5 votes — Kavanaugh, Roberts, Alito, Gorsuch and Thomas).
• The exemption was severable (7 votes — everyone except Gorsuch and Thomas).

Additional points of departure

• Applying intermediate scrutiny, debt exception is unconstitutional (1 vote — Sotomayor): Justice Sotomayor concluded that the government-debt exception fails under intermediate scrutiny and is severable from the rest of the law.
• Strict scrutiny test (4 votes — Breyer, Ginsburg, Kagan and Sotomayor): As to the test to be employed in the case, four members of the Court concluded that strict scrutiny should not apply to all content-based distinctions.

  

• Telephone Consumer Protection Act’s rule against all cellphone robocalls is unconstitutional (2 votes — Gorsuch, joined by Thomas): Justice Gorsuch's opinion (joined by Justice Thomas) argued that all of the Telephone Consumer Protection Act’s automated-call restrictions were unconstitutional; as summarized in the syllabus, "content-based restrictions on speech are subject to strict scrutiny, that the Telephone Consumer Protection Act’s rule against cellphone robocalls is a content-based restriction, and that this rule fails strict scrutiny and therefore cannot be constitutionally enforced."
• 4-prong-plus content-based restrictions involving commercial regulation: (4 votes — Breyer, joined by Ginsburg, Kagan and Sotomayor): Justice Breyer: "This case primarily involves commercial regulation—namely, debt collection. And, in my view, there is no basis here to apply 'strict scrutiny' based on 'content-discrimination.'" Breyer went on to say that:

A proper inquiry should examine the [1] seriousness of the speech-related harm, [2] the importance of countervailing objectives, [3] the likelihood that the restriction will achieve those objectives, and [4] whether there are other, less restrictive ways of doing so. Narrow tailoring in this context, however, does not necessarily require the use of the least-restrictive means of furthering those objectives.

Importantly, he also added:

It is thus no surprise that our First Amendment jurisprudence has long reflected these core values. This Court's cases have provided heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issue.

• Regulation of commercial activity v. commercial speech: Note that in his plurality opinion Justice Kavanaugh declared: "Our decision is not intended to expand existing First Amendment doctrine or to otherwise affect traditional or ordinary economic regulation of commercial activity." (emphasis added.) Note he did not say commercial "speech" or commercial "regulations affecting speech." As to existing law, it does not appear to be settled that Reed's content-based strict scrutiny test applies to commercial speech. See Sorrell v. IMS Health Inc. (2011) (applying "heightened judicial scrutiny" or "rigorous scrutiny" test).
• Breyer (joined by Ginsburg and Kagan) on regulatory programs and the First Amendment:

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. As a general matter, the strictest scrutiny should not apply indiscriminately to the very "political and social changes desired by the people"—that is, to those government programs which the "unfettered interchange of ideas" has sought to achieve. [Citation to Meyer.] 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. (Emphasis added.)

Related: telemarketing cases

• Federal Trade Commission v. Mainstream Marketing Services, Inc. (10th Cir. 2003 and 10th Cir. 2004), two federal appeals courts upheld the National Do Not Call Registry against a First Amendment challenge. See generally, R. Michael Hoefge, "Telemarketing Regulation and the Commercial Speech Doctrine," Journal of Legislation (2005).

Related: four-part commentary by Josh Blackman

• "Part I: Barr v. AAPC and Judicial Departmentalism," The Volokh Conspiracy (July 7)
• "Part II: Barr v. AAPC and Content-Based Discrimination," The Volokh Conspiracy (July 7)
• "Part III: Barr v. AAPC and Stare Decisis," The Volokh Conspiracy (July 7)
• "Part IV: Barr v. AAPC and Modern Severability Doctrine," The Volokh Conspiracy (July 8)

Court declines to revisit Hill v. Colorado 

Last week the Court denied review in Price v. City of Chicago, Illinois. The issue in Price according to SCOTUSblog is: "Whether the Court should reconsider Hill v. Colorado in light of its intervening decisions in Reed v. Town of Gilbert and McCullen v. Coakley."

The case involved pro-life “sidewalk counselors” who sued to enjoin Chicago’s “bubble zone” ordinance, which bars them from approaching within eight feet of a person in the vicinity of an abortion clinic if their purpose is to engage in counseling, education, leafletting, handbilling, or protest.

The district judge dismissed the claim, relying on Hill v. Colorado, which upheld a nearly identical Colorado law against a similar First Amendment challenge and the Seventh Circuit affirmed. In doing so, Judge Diane Sykes declared:

The road the plaintiffs urge is not open to us in our hierarchical system. Chicago’s bubble-zone ordinance is materially identical to — indeed, is narrower than — the law upheld in Hill. While the Supreme Court has deeply unsettled Hill, it has not overruled the decision. So it remains binding on us.

Related

• "Dish Denied Rehearing of Robocall Liability Appeals Court Ruling," Bloomberg Law (June 29)

Trump, Nunes & defamation lawsuits

• David Hudson, Jr., "How Trump and Nunes Use Defamation Lawsuits To Silence Their Critics," First Amendment Watch (June 30)

Release of Trump niece book fast-tracked

• Josh Gerstein, "Publisher moves up release of book by Trump niece," Politico (July 6)

Forthcoming book on censorship 

• Hannah Marcus, "Forbidden Knowledge: Medicine, Science, and Censorship in Early Modern Italy" (University of Chicago Press, Sept. 25, 2020)

So to Speak podcast: 'How Daryl Davis, a black man, defeats the Ku Klux Klan with open dialogue'

“If you spend five minutes with your worst enemy, you will find you have something in common,” said Daryl Davis. “If you spend 10 minutes, you’ll find you even have more in common. And the more you find that you have in common and build upon those things, the less the things that you have in contrast will begin to matter, like skin color.”

Since the early 90s, Davis, a black man, has taken up the curious pastime of befriending members of the Ku Klux Klan. The result? He has dozens of Klan robes at his home that were given to him by former Klan members who shed their racist beliefs after meeting him.

More in the news

• Amanda Radke, "The First Amendment and alternative proteins," BEEF (July 7)
• Andrew Naughtie, "Judge blocks Portland police from using physical force against journalists," Yahoo News (July 3)
• Heidi Kitrosser, "Trump’s Political NDAs Are an Abomination to the First Amendment," Slate (July 2)
• Klea Dhima, "UCLA Academic Senate Committee releases academic freedom statement as two controversies go unresolved," FIRE (July 2)
• "Immigration Judges Challenge Justice Department Speech Policy," Knight First Amendment Institute (July 1)
• "Bye-bye blacklist: Harvard ends attack on single-sex groups," FIRE (June 30)
• David Hudson, Jr., "9th Cir. slams Calif. law barring online posting of performers’ ages, birth dates," The Free Speech Center (June 28)

2019–2020 SCOTUS term: free expression & related cases

Opinions or judgments handed down

• Barr v. American Association of Political Consultants, Inc. (argued May 6) (automated-call restriction)
• United States Agency for International Development v. Alliance for Open Society International Inc.
• Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
• United States v. Sineneng-Smith (decided on non-First Amendment grounds)

Note:

• Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (argued May 13) (First Amendment claim raised but case decided on non-1A grounds.)

Cert. granted

• Facebook, Inc. v. Duguid
• Carney v. Adams  (TBD) (standing/judicial elections)
• United States Agency for International Development v. Alliance for Open Society International Inc.(argued May 5) (federal funding/compelled speech)
• Barr v. American Association of Political Consultants, Inc. (argued May 6) (automated-call restriction)
• Fulton v. City of Philadelphia (TBD) (religious expression: free exercise & free speech claims)

Pending petitions

• Hunt v. Board of Regents of the University of New Mexico
• Living Essentials, LLC v. Washington
• Evans v. Sandy City, Utah
• Bruni v. City of Pittsburgh
• Austin v. Illinois
• Mckesson v. Doe
• Reisman v. Associated Faculties of the University of Maine
• Institute for Free Speech v. Becerra
• Americans for Prosperity Foundation v. Becerra
• Thomas More Law Center v. Becerra 
• Arlene’s Flowers Inc. v. Washington

Petitions denied

• Charter Communications, Inc. v. Gallion
• Bright v. Thomas
• Price v. City of Chicago, Illinois
• Kansas v. Boettger (Thomas, J., dissenting from denial of cert.)
• Waggy v. United States
• Jarchow v. State Bar of Wisconsin
• National Association for Gun Rights, Inc. v. Mangan
• Schmitt v. LaRose
• Vugo Inc. v. City of New York, New York
• Waronker v. Hempstead Union School District
• Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
• Elster v. City of Seattle
• Doe 1 v. Federal Election Commission
• Fleck v. Wetch
• New York Republican State Committee v. Securities and Exchange Commission
• EMW Women’s Surgical Center v. Meier
• Carter v. Massachusetts
• Capital Associated Industries Inc. v. Stein
• National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
• Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
• Libertarian National Committee Inc. v. Federal Election Commission
• Miller v. Inslee
• Buchanan v. Alexander
• Lipschultz v. Charter Advanced Services, LLC
• Gatehouse Media New York Holdings Inc. v. New York

First Amendment-related 

• Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context) (cert. granted)
• National Association of Broadcasters v. Prometheus Radio Project (re Section 202(h) of the Telecommunications Act of 1996)
• Federal Communications Commission v. Prometheus Radio Project (re FCC cross-ownership restrictions)

First Amendment related: cert. denied

• Force v. Facebook Inc. (interpretation of Section 230(c)(1))
• Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
• Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))

Last scheduled FAN

• FAN 261: "The Chicks & ‘March March’ — from country to cultural dissent”