Barr v. American Assn. of Political Consultants, Inc.
591 U.S. 610
SCOTUS2020Background
- The Telephone Consumer Protection Act (TCPA) of 1991 broadly bans automated/ prerecorded calls ("robocalls") to cell phones to protect consumer privacy.
- The Bipartisan Budget Act of 2015 amended §227(b)(1)(A)(iii) to add a narrow exception permitting robocalls "made solely to collect a debt owed to or guaranteed by the United States."
- Plaintiffs (political and nonprofit organizations) sued, arguing the government-debt exception impermissibly favors debt-collection speech over political and other speech in violation of the First Amendment.
- The district court found the statute content-based but upheld it under strict scrutiny; the Fourth Circuit held the exception content-based and unconstitutional and severed it from the TCPA. The Government sought review; the Supreme Court affirmed the Fourth Circuit.
- The Court invalidated and severed only the 2015 government-debt exception, leaving the original robocall ban intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the robocall restriction with the 2015 government-debt exception is a content-based speech regulation | The exception discriminates based on subject matter (debt-collection) and so is content-based | The provision distinguishes speakers/economic activity, not content, and thus is content-neutral | Content-based: the legality of a call turns on its subject (government-debt collection); strict-scrutiny framework applies |
| Whether the government-debt exception survives heightened scrutiny | The exception cannot be justified because it privileges debt-collection speech over political, charitable, commercial speech | The Government cites collecting government debt as a strong/compelling interest supporting the exception | Government concedes and Court agrees the exception cannot satisfy strict scrutiny (Sotomayor: fails intermediate scrutiny too) |
| Remedy: sever the exception or invalidate the entire 1991 robocall restriction | Plaintiffs urged invalidation of the whole robocall ban to avoid unequal treatment | Government urged severance of only the 2015 exception so the broad robocall ban remains | Sever the 2015 government-debt exception; keep the longstanding robocall prohibition in force |
| Scope of remedy (injunction as-applied vs. facial severance) | Plaintiffs sought broad relief (invalidate the whole ban) | Some Justices favored narrower relief (injunction) or severance; Government favored severance | Majority applies traditional severability (and the Communications Act’s severability clause) to strike the exception; separate opinions disagree on proper remedial scope |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based regulations trigger strict scrutiny)
- Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) (government may not restrict expression based on subject matter or content)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (laws singling out particular subject-matter speech are content-based)
- Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010) (strong presumption of severability; limit remedy to unconstitutional provisions)
- Marbury v. Madison, 1 Cranch 137 (1803) (establishes judicial review; partial invalidation of statutes longstanding practice)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for time, place, manner restrictions; narrow tailoring standard)
- City of Ladue v. Gilleo, 512 U.S. 43 (1994) (exemptions may undermine credibility of asserted government interest)
- Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (underinclusiveness of a law can undermine asserted compelling interest)