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

man on a phone

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.

Justice Brett Kavanaugh

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.
    Justice Stephen Breyer
    Justice Stephen Breyer
  • 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

Related: four-part commentary by Josh Blackman

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.


Trump, Nunes & defamation lawsuits

Release of Trump niece book fast-tracked

Forthcoming book on censorship 

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

This episode is a rebroadcast from March 2017. From the description:
“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.”
So to Speak: The Free Speech Podcast logo
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.

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