The United States Supreme Court issued its much-awaited decision in Barr v. American Association of Political Consultants on Monday, July 6, striking down the government-backed debt exemption in the Telephone Consumer Protection Act (TCPA). The Court did not go so far as to invalidate the TCPA as a whole, however, finding instead that the unconstitutional portion of the statute could effectively be severed.

The decision is a primer in First Amendment analysis, but does not provide significant fodder for TCPA enthusiasts. The main takeaway from the Court’s opinion is status quo -- the TCPA is alive and well, having survived a broad-brush Constitutional challenge.

Background

The TCPA, in existence since 1991, regulates calls to telephones using an automatic telephone dialing system or an artificial or prerecorded voice. Historically, the TCPA has included two exclusions: one for calls made with the called party’s prior express consent and a second for calls made for emergency purposes. In 2015, Congress enacted a third exemption for calls “made solely to collect a debt owed to or guaranteed by the United States.”

The Lower Courts’ Decisions

The case originated in the Eastern District of North Carolina, where a group of plaintiffs, including the American Association of Political Consultants (AAPC), the Democratic Party of Oregon, Public Policy Polling, the Washington State Democratic Central Committee, and the Tea Party Forward PAC challenged the government debt exemption as a content-based restriction on speech. The district court found in favor of the government, concluding that the exemption, though content-based, passed strict scrutiny.

The Fourth Circuit reversed. The panel agreed with the district court’s conclusion that the exemption was content-based, finding that “the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.” But the Fourth Circuit disagreed with the district court on whether the exemption survived strict scrutiny for two reasons: First, the Fourth Circuit found that the exemption authorized “the intrusive calls that the [TCPA] was enacted to prohibit,” thereby subverting any privacy protections. Second, the exemption deviated “from the purpose of the automated call ban,” meaning that it was “an outlier among the other statutory exemptions.”

The Fourth Circuit, however, stopped short of invalidating the TCPA entirely. Instead, it severed the federal government debt collection exemption, holding that the TCPA could still constitute a meaningful statute in the absence of this exemption. The court reasoned that the TCPA operated successfully for 24 years without the exemption, which suggested that severing the exemption was a better outcome than invalidating the statute as a whole.

The Plurality Opinion

Justice Kavanaugh authored a plurality opinion affirming the Fourth Circuit’s decision. The opinion focuses on First Amendment principles, rejecting the Government’s arguments that the exemption was not content based because it distinguishes between speakers or economic activity. Justice Kavanaugh was also not swayed by the Government’s argument that if the government debt exemption is content based, then all statutes that regulate debt collection are content based. After rejecting the Government’s stance, Justice Kavanaugh summed up the analysis with a simple statement that “the robocall restriction with the government-debt exception is content-based.” Because the Government conceded that it could not satisfy strict scrutiny sufficient to support the government debt exemption, the Court found the exemption “created an unconstitutional exception” to the TCPA.

The Court then turned to the critical question of whether it could sever the government debt exception or whether it was necessary to invalidate the TCPA as a whole. First, the plurality rebuffed the Government’s argument that the 2015 addition of the government backed debt exception “betrays a newfound lack of genuine congressional concern for consumer privacy” – the original asserted interest for the TCPA. Justice Kavanaugh noted that Congress can be interested in both collecting government debt and consumer privacy. The Court then applied severability principles to the exemption and found that the severability clause of the Communications Act “squarely covers the unconstitutional government-debt exception and requires that [the Court] sever it.” Justice Kavanaugh also noted that even if the severability clause did not apply, the Court would sever the exception based on the presumption of severability and controlling precedent.

The Other Opinions

Justice Sotomayor wrote separately to concur with the judgment, noting that she agreed with much of Justice Breyer’s partial dissent regarding the level of scrutiny given to content-based restrictions. However, Justice Sotomayor noted that she would find the government-backed debt exemption fails intermediate scrutiny, as “the Government has not explained how a debt-collection robocall about a government-backed debt is any less intrusive or could be any less harassing than a debt-collection robocall about a privately backed debt.” The Justice further noted that the government could have enacted less restrictive means to further its interests, but agreed that the provision could be severed.

Justice Breyer, joined by Justices Ginsburg and Kagan, wrote separately to dissent in part and concur in part, concluding that the TCPA should be subject to a lesser standard of scrutiny, rather than strict scrutiny. “The speech-related harm at issue here,” noted Justice Breyer, “and any related effect on the marketplace of ideas—is modest.” Consequently, the three justices would find that the government-backed debt exemption does not violate the First Amendment, but agreed with Justice Kavanaugh’s plurality conclusion that the provision is severable.

Justice Gorsuch, joined in part by Justice Thomas, wrote separately to concur in part and dissent in part, agreeing with the plurality’s conclusion that the exemption fails strict scrutiny, but disagreeing with the appropriate remedy. In Justice Gorsuch’s eyes, severance does little to address the issues raised by both parties: “after today’s ruling, federal law bars the plaintiffs from using robocalls to promote political cause just as stoutly as it did before.” Instead, Justice Gorsuch would give injunctive relief to the AAPC, preventing the enforcement of the TCPA against them.

Looking Forward

The Court left for another day those pressing issues which have divided Courts of Appeals across the nation, namely whether the TCPA’s definition of “ATDS” (Automatic Telephone Dialing System) requires that telephony randomly or sequentially generate numbers. Still pending before the Court is the petition for certiorari in the Duguid case, which not only challenged the government-backed debt exemption, but also questions the Ninth Circuit’s definition of an ATDS. Should the Court choose to hear Duguid, it may resolve a split between the Ninth and Second Circuits on one hand, and the Third, Seventh, and Eleventh Circuits on the other.