Today the United States Supreme Court released its decision, available here, striking a 2015 amendment to the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (TCPA), on First Amendment grounds. Barr v. Am. Ass’n of Political Consultants, Inc., No. 19-631. TCPA outlaws automated phone calls – “robocalls” – and establishes hefty civil damages and penalties for violators. In 2015, Congress passed an amendment that would exempt from TCPA liability any automated call placed for the purpose of collecting a debt owed to or guaranteed by the federal government. In today’s decision, this so-called “government-debt exception” was deemed to favor this form of speech over other forms, including political speech, thereby violating the First Amendment.
The nature of the constitutional infringement was readily ascertained. The 2015 amendment is undoubtedly a content-based regulation of speech, and the Government had conceded that the government-debt exception does not satisfy the strict scrutiny applicable to such regulations.
The real question was severability: whether the “government-debt exception” could be carved out of TCPA, leaving the general robocall prohibition intact. Seven Justices concluded that severability, which enjoys a “strong presumption” under Supreme Court precedent, was appropriate. Moreover, the Court found, the Communications Act of 1934, into which TCPA was codified, contains an express severability clause. As such, the 2015 amendment can easily be severed from the rest of TCPA, leaving it “capable of functioning independently and … fully operative as a law.”
As Justice Kavanaugh wrote for the majority, “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.” The Barr decision was a fairly predictable resolution to the dispute as to whether some robocalls are more worthy than others, appropriately cabined to preserve the overall goal of protecting the quietude of the American dinner hour.
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