On July 6, 2020, the U.S. Supreme Court decided Barr v. American Association of Political Consultants, No. 19-631, holding that the Telephone Consumer Protection Act’s (TCPA) exception for calls made for the sole purpose of collecting debts owed to or guaranteed by the United States from its general prohibition against robocalls to mobile phones violated the First Amendment to the United States Constitution. The Supreme Court held that the unconstitutional exception was severable from the TCPA’s prohibition against robocalls.
This case involves a challenge to a portion of the TCPA, which prohibits making automated calls to mobile phones unless those calls are made for the sole purpose of collecting government debt. 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiffs, the American Association of Political Consultants and three other organizations that participate in the political system filed a declaratory judgment action, arguing the TCPA’s restriction on making robocalls to cell phones violated the First Amendment.
The district court concluded that the robocall restriction, combined with the government-debt exception, was a content-based speech regulation but held it survived strict scrutiny because it served the government’s compelling interest in collecting debt owed to it. The Fourth Circuit vacated the decision. It held that the restriction could not survive strict scrutiny but concluded that government-debt exception to the robocall prohibition was severable, leaving the broad prohibition on robocalls intact.
The government sought and obtained review of the Fourth Circuit’s decision that the statute was unconstitutional. The plaintiffs supported the petition, arguing alternatively the Fourth Circuit should have invalidated the entire robocalling prohibition.
In an opinion and two concurrences, six justices agreed that exception impermissibly favors government-debt collection speech over political and other kinds of speech in violation of the First Amendment. By a 7-2 vote, the Supreme Court held that the unconstitutional exception was severable from the broader prohibition on robocalls. A plurality of the Court concluded that the government-debt collection exception in § 227(b)(1)(A)(iii) was a content-based speech restriction subject to strict scrutiny, recognized the government’s concession that it could not satisfy strict scrutiny, and concluded that collection of government debt, while a worthy goal, was not a compelling interest sufficient to satisfy strict scrutiny.
In light of a majority of the justices’ conclusion that the government-debt collection exception to § 227(b)(1)(A)(iii) is unconstitutional, seven justices agreed the provision was severable from the balance of the statute. The plurality looked to traditional severability principles. First, it recognized there was no express non-severability provision in the TCPA. Second, it recognized the Court’s presumption in favor of severing unconstitutional provisions to conclude that the unconstitutional government-debt collection exception was severable from the balance of the TCPA, leaving the broad prohibition on robocalls intact.
Accordingly, the Court affirmed the Fourth Circuit’s decision.
Justice Kavanaugh authored an opinion joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Sotomayor authored an opinion concurring in the judgment. Justice Breyer authored an opinion concurring in the judgment with respect to severability and dissenting in part, which was joined by Justices Ginsburg and Kagan. Justice Gorsuch authored an opinion concurring in the judgment in part and dissenting in part, which was joined in part by Justice Thomas.