Four Supreme Court Justices Question First Amendment Precedent Problematic for States and Local Governments

In fact, Justice Kavanaugh (fairly) describes Justice Breyer as arguing in favor of overruling Reed v. Town of Gilbert (2015).  

In Barr v. American Association of Political Consultants the Supreme Court held 6-3 that the Telephone Consumer Protection Act’s (TCPA) debt-collection exception was content-based, failed strict scrutiny, and therefore violated the First Amendment.

The State and Local Legal Center filed an amicus brief in this case asking the Court to narrow its opinion in Reed v. Town of Gilbert (2015), holding that strict (usually fatal)-scrutiny applies to content-based restrictions on speech. Four Justices wouldn’t have applied strict scrutiny to the debt-collection exception.

The TCPA, adopted in 1991, prohibits robocalls to cell phones and home phones. A 2015 amendment allows robocalls made to collect debts owed to or guaranteed by the federal government. The American Association of Political Consultants (AAPC) wants to make political robocalls but can’t because they “are not in the business of collecting government debt.”

The Supreme Court, in a plurality opinion written by Justice Kavanaugh, held that the government-debt collection exception is a content-based restriction on speech. According to Justice Kavanaugh, under the TCPA, the legality of a robocall turns on whether it is “made solely to collect a debt owed to or guaranteed by the United States.” A robocall that says, “Please pay your government debt” is legal. A robocall that says, “Please donate to our political campaign” is illegal. “That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”

Chief Justice Roberts, and Justices Thomas, Alito, and Gorsuch agreed with Justice Kavanaugh that strict scrutiny should apply in this case. The federal government conceded that the government-debt exception fails strict scrutiny. Justice Sotomayor would have applied intermediate scrutiny which she concluded the exception failed.   

Justice Breyer, joined by Justices Ginsburg and Kagan, would not have applied strict scrutiny in this case, as the SLLC asked in its amicus brief. According to Justice Breyer: “[t]o reflexively treat all content-based distinctions as subject to strict scrutiny regardless of context or practical effect is to engage in an analysis untethered from the First Amendment’s objectives.” “The idea that broad language in any one case (even Reed) has categorically determined how content discrimination should be applied in every single context is both wrong and reflects an oversimplification and over-reading of our precedent.” Justice Breyer opined that the “government-debt exception should survive intermediate First Amendment scrutiny.”

Interestingly, seven Justices voted to sever the government-debt exception from the TCPA, allowing the law to remain in effect without the exception. The practical effect of this decision is that AAPC “still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.” Justice Kavanaugh, writing in favor of severability, noted that since 1934 the Communications Act, which the TPCA amended, contains a severability clause.

Justices Gorsuch and Thomas dissented from the Court’s holding that severability was the appropriate remedy in this case. Noting that the AAPC didn’t challenge the debt-collection exception, the dissenters would have held that the AAPC was entitled to an injunction preventing the robocall ban from being enforced against them because the ban “unconstitutionally infringes on their speech.”