United States: To Sever Or Not To Sever: Supreme Court Grapples With Political Consultants' First Amendment TCPA Challenge

Seyfarth Synopsis: On May 6, 2020, the Supreme Court heard oral arguments on a First Amendment to a 2015 amendment to the TCPA, which exempted calls regarding debts owed to the government from certain of its prohibitions. While most Justices seemed to agree that the exemption was a content based restriction on speech, the Justices struggled with whether severance was the appropriate remedy.

Background

The Telephone Consumer Protection Act ("TCPA") prohibits the use of automated, artificial or prerecorded calls to any cell phone unless made for emergency purposes or without prior express consent ("cell phone ban"). In 2015, Congress amended the TCPA to create an additional exemption for calls related solely to the collection of debts owed to the U.S. government ("government debt exemption").

In Barr v. American Association of Political Consultants et al., Case No. 19-631 (2020), an association of political and polling organizations ("Political Consultants") challenged the constitutionality of the TCPA, arguing that the government debt exemption was a content-based restriction on speech in violation of the First Amendment.

The Fourth Circuit ruled that the government debt exemption was a content-based restriction on speech but chose to remedy that defect by severing the exemption, leaving the cell phone ban in place. The Attorney General petitioned the Supreme Court for review, arguing that the government debt exemption was not a content-based restriction on speech. On January 10, 2020, the Supreme Court granted the petition for certiorari to determine whether the exemption was a content-based restriction on speech subject to strict scrutiny and, if so, whether the appropriate remedy was to sever the exemption or invalidate the cell phone ban in its entirety. The Court held oral arguments on May 6, 2020, which were live streamed on C-SPAN. We were listening.

Oral Argument Observations

The Justices were largely in agreement that the government debt exemption was a content-based restriction on speech that could not survive scrutiny. The most notable exception was Justice Kagan, who suggested that Congress had intended to create a content-neutral exemption but failed to do so because of sloppy drafting. On the whole, however, the Justices focused on the issue of the appropriate remedy: severance or invalidation of the cell phone ban.

Many of the Justices appeared sympathetic to the Government's argument that severance would be appropriate given that the TCPA (1) is very popular with consumers; (2) has been in place since 1991; and (3) survived all constitutional challenges prior to the addition of the government debt exemption in 2015.

Nevertheless, the Justices appeared uncomfortable with the ramifications of severance, which would have a perverse result: making the restriction on speech even broader (by eliminating an exemption to the ban on speech) and failing to give the prevailing party (the Political Consultants) any relief. The Justices pondered whether such a ruling would provide a disincentive to bringing First Amendment challenges in the future. The Justices also expressed due process concerns with eliminating the rights of individuals who were not parties to this case (e.g., private debt collectors who the government can engage to collect government debts).

The Political Consultants further argued that severing the government debt exemption from the cell phone ban was not sufficient to remedy the First Amendment violation because the cell phone ban itself was an improper restriction on speech. Although the Political Consultants conceded that, without the government debt exemption, the cell phone ban would be content neutral and subject only to intermediate scrutiny, they argued that the cell phone ban could not even survive that level of review because it was not supported by an important government interest. Specifically, the Political Consultants argued that Congress's act of passing the government debt exemption in 2015-which permits the Government or its agents to make debt-collection calls, widely regarded as the most annoying and intrusive type of autodialed or prerecorded calls-was itself evidence that the Government does not value consumer privacy as highly as the Attorney General contended on appeal.

In response to this argument, however, Chief Justice Roberts pointed out that Congress may be taking steps one at a time (such as it did in passing the 2015 amendment creating the government debt exemption) to remedy the cell phone ban's broad restriction on speech. The Chief Justice questioned whether it would be appropriate for the Court to intervene in this Congressional process.

Lastly, two other intriguing options were proposed by the Justices but did not receive extensive consideration: (1) remanding to the Fourth Circuit (presumably for further consideration of the appropriate remedy or due process issues); or (2) crafting the Court's opinion in such a way to carve out political speech from the cell phone ban.

Takeaways

A majority of the Justices are likely to find that the government debt exemption is a content-based restriction on speech, but how they will choose to remedy that infirmity (or whether they will even reach agreement on a remedy) is unclear. Indeed, as Justice Kavanaugh noted, the Court has no precedent for ruling on severability when the First Amendment violation is created by an exception to the restriction on speech. The Court's decision is expected by June 2020. We will update you here when it issues.

Originally published May 20, 2020

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