WASHINGTON (CN) — The Supreme Court on Monday struck down an exception for government debt collection in a federal ban on robocalls, though it declined the invitation of a group of political professionals to strike down the ban entirely.
The ruling leaves in place the Telephone Consumer Protection Act, which generally prohibits robocalls made to cellphones, but does away with an exception in 2015 that allows calls seeking to collect a debt owed to or guaranteed by the U.S. government.
Since the early 1990s, the law has included exemptions for emergency calls and calls to which the receiver has consented, but a six-justice majority found Monday the government debts exception favors some types of speech over others in violation of the First Amendment.
As Justice Brett Kavanaugh wrote, the exception for government debts is unconstitutional because it elevates a call asking the recipient to pay a government debt above a call that asks for donations to a political campaign.
This differing treatment triggers strict scrutiny, the highest level of review courts apply to First Amendment claims. Under that exacting standard, the exception must fall, the President Donald Trump appointee wrote.
“That is about as content-based as it gets,” Kavanaugh wrote. “Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”
The American Association of Political Consultants led a challenge to the law under the First Amendment, arguing the restriction on robocalls is an unallowable restriction of their speech. Joining the fight were a group of pollsters and the Oregon and Washington state Democratic parties.
A federal district court upheld the law as narrowly tailored to advance an interest in “residential privacy,” but the Fourth Circuit reversed. While it found the exemption for calls to collect a government debt ran against the First Amendment, it did not strike down the whole law but instead severed the exemption.
At the high court, the challengers asked the justices to strike down the whole of the TCPA.
In his 25-page opinion announcing the judgment of the court, Kavanaugh wrote the government has not done enough to justify why government debts should get special treatment as compared to other types of calls, including those seeking charitable donations or advocating certain issues.
But Congress still maintains a clear interest in a general ban on robocalls and the rest of the law can function without the government debts exception, Kavanaugh wrote.
The Supreme Court’s holding is cobbled together from a series of partial concurrences and dissents from the justices. Kavanaugh’s opinion was joined in full by Chief Justice John Roberts and Justice Samuel Alito and in part by Justice Clarence Thomas, though Thomas would not have severed the government debts exception from the rest of the law.
Meanwhile, Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan would have not applied strict scrutiny to the law and upheld the exception.
In Breyer’s eyes, the government debt exception “has next to nothing to do” with the purpose of the First Amendment — the free exchange of ideas necessary to support democracy. Instead, he wrote, it reflects Congress’ attempts to resolve a specific issue of public concern “through ordinary commercial regulation.”
“To 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,” Breyer wrote.
Applying a less-strict standard, Breyer wrote the restriction on speech is “modest” enough to survive.
But unable to persuade enough of their colleagues to uphold the exception, Breyer, Ginsburg and Kagan agreed it should be severed from the rest of the law.
Justice Sonia Sotomayor agreed with her fellow Democratic appointees that the court should not have applied strict scrutiny when evaluating the law but would have held the exception unconstitutional even under less-demanding tests.
Justice Neil Gorsuch endorsed with the majority’s core finding that the exception must fall, but for slightly different reasons.
Rather than severing the exception, Gorsuch wrote the court should have given the challengers an injunction preventing the government from enforcing the TCPA against them.
Joined by Thomas, Gorsuch wrote the majority’s approach of severing the exception gives no relief to those who brought the successful challenge in the first place.
“Severing and voiding the government-debt exception does nothing to address the injury they claim; after today’s ruling, federal law bars the plaintiffs from using robocalls to promote political causes just as stoutly as it did before,” Gorsuch wrote. “What is the point of fighting this long battle, through many years and all the way to the Supreme Court, if the prize for winning is not relief at all?”
That made for a six-member majority in favor of striking down the government debts exception and a seven-member majority in favor of severing the exception from the rest of the law.
Alana Joyce, executive director of the American Association of Political Consultants, said while the conclusion that the government debt exception runs against the First Amendment is welcome, the court did not go far enough and has key issues it will need to resolve with additional cases.
“We are grateful that the Supreme Court recognized the importance of the First Amendment and the harms imposed by content-based restrictions on speech but are disappointed that the court did not rule in favor of the AAPC entirely,” Joyce said in a statement. “There remain open questions about what the TCPA means and how it applies to those who engage in First Amendment-protected policy and political discussions.”
The Justice Department did not immediately respond to a request for comment.
Mark Taticchi, a partner at the firmer Faegre Drinker, said the case could have significant implications both for future TCPA challenges and unrelated cases that turn on severability – including the closely watched Obamacare challenge the court will hear next term.
On the TCPA, Facebook has a petition pending before the court asking the justices to consider whether the law is an unconstitutional restriction on speech and what devices fall under its restrictions.
Taticchi also noted that while a clear majority of justices agreed on severability, there remains significant space between the justices in how they go about reaching their decisions.
“As sometimes happens, and as especially happens this time of year with Supreme Court decisions, this case is decided but there’s a lot less than full clarity when it comes to what the court is going to do going forward,” Taticchi said in an interview.
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