Barr v. Am. Ass'n of Political Consultants, Inc.

• Citation: 140 S.Ct. 2335,207 L.Ed.2d 784
• Decision Date: 06 July 2020
• Docket Number: No. 19-631,19-631
• Parties: William P. BARR, Attorney General, et al., Petitioners v. AMERICAN ASSOCIATION OF POLITICAL CONSULTANTS, INC., et al.
• Court: U.S. Supreme Court

140 S.Ct. 2335

207 L.Ed.2d 784

William P. BARR, Attorney General, et al., Petitioners

v.AMERICAN ASSOCIATION OF POLITICAL CONSULTANTS, INC., et al.

No. 19-631

Supreme Court of the United States.

Argued May 6, 2020

Decided July 6, 2020

Noel J. Francisco, Solicitor General Counsel of Record Department of Justice, Washington, D. C., for Petitioners.

William E. Raney, Kellie Mitchell Bubeck, Copilevitz, Lam & Raney, P.C., 310 W. 20th Street, Suite 300, Kansas City, MO, Roman Martinez, Counsel of Record, Andrew B. Clubok, Susan E. Engel, Tyce R. Walters, Samir Deger-Sen, Gregory B. in Den Berken Latham & Watkins LLP, 555 Eleventh Street, NW, Suite 1000, Washington, DC, for Respondents.

Joshua H. Stein, Matthew W. Sawchak, Solicitor General, Ryan Y. Park, Deputy Solicitor General, Nicholas S. Brod, Assistant Solicitor, General, Attorney General, Curtis T. Hill, Jr., Indiana Attorney General,^* Thomas M. Fisher, Solicitor General, Kian J. Hudson, Deputy Solicitor General, Julia C. Payne, Deputy Attorney General, North Carolina, Department of Justice, Post Office Box 629, Raleigh, NC 27602, Office of the Indiana, Attorney General, 302 W. Washington St., Indianapolis, IN, for Petitioners.

Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Frederick Liu, Assistant to the Solicitor General, Mark B. Stern, Michael S. Raab, Lindsey Powell, Attorneys, Department of Justice, Washington, D.C., for Petitioners.

Justice KAVANAUGH announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Justice ALITO join, and in which Justice THOMAS joins as to Parts I and II.

Americans passionately disagree about many things. But they are largely united in their disdain for robocalls. The Federal Government receives a staggering number of complaints about robocalls—3.7 million complaints in 2019 alone. The States likewise field a constant barrage of complaints.

For nearly 30 years, the people's representatives in Congress have been fighting back. As relevant here, the Telephone Consumer Protection Act of 1991, known as the TCPA, generally prohibits robocalls to cell phones and home phones. But a 2015 amendment to the TCPA allows robocalls that are made to collect debts owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage debts.

This case concerns robocalls to cell phones. Plaintiffs in this case are political and nonprofit organizations that want to make political robocalls to cell phones. Invoking the First Amendment, they argue that the 2015 government-debt exception unconstitutionally favors debt-collection speech over political and other speech. As relief from that unconstitutional law, they urge us to invalidate the entire 1991 robocall restriction, rather than simply invalidating the 2015 government-debt exception.

Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. See infra , at 2345 - 2347; post , at 2356 - 2357 (SOTOMAYOR, J., concurring in judgment); post , at 2363, 2364 (GORSUCH, J., concurring in judgment in part and dissenting in part). Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. See infra , at 2348 - 2356; post , at 2357 (SOTOMAYOR, J., concurring in judgment); post , at 2362 - 2363 (BREYER, J., concurring in judgment with respect to severability and dissenting in part). As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.

I

A

In 1991, Congress passed and President George H. W. Bush signed the Telephone Consumer Protection Act. The Act responded to a torrent of vociferous consumer complaints about intrusive robocalls. A growing number of telemarketers were using equipment that could automatically dial a telephone number and deliver an artificial or prerecorded voice message. At the time, more than 300,000 solicitors called more than 18 million Americans every day. TCPA, § 2, ¶¶3, 6, 105 Stat. 2394, note following 47 U.S.C. § 227. Consumers were "outraged" and considered robocalls an invasion of privacy "regardless of the content or the initiator of the message." ¶¶6, 10.

A leading Senate sponsor of the TCPA captured the zeitgeist in 1991, describing robocalls as "the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall." 137 Cong. Rec. 30821 (1991).

In enacting the TCPA, Congress found that banning robocalls was "the only effective means of protecting telephone consumers from this nuisance and privacy invasion." TCPA § 2, ¶12. To that end, the TCPA imposed various restrictions on the use of automated telephone equipment. § 3(a), 105 Stat. 2395. As relevant here, one restriction prohibited "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice" to "any telephone number assigned to a paging service, cellular telephone service , specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call." Id. , at 2395–2396 (emphasis added). That provision is codified in § 227(b)(1)(A)(iii) of Title 47 of the U. S. Code.

In plain English, the TCPA prohibited almost all robocalls to cell phones.¹

Twenty-four years later, in 2015, Congress passed and President Obama signed the Bipartisan Budget Act. In addition to making other unrelated changes to the U. S. Code, that Act amended the TCPA's restriction on robocalls to cell phones. It stated:

"(a) IN GENERAL .—Section 227(b) of the Communications Act of 1934 ( 47 U.S.C. 227(b) ) is amended—

(1) in paragraph (1)—

(A) in subparagraph (A)(iii), by inserting ‘, unless such call is made solely to collect a debt owed to or guaranteed by the United States’ after ‘charged for the call.’ " 129 Stat. 588.²

In other words, Congress carved out a new government-debt exception to the general robocall restriction.

The TCPA imposes tough penalties for violating the robocall restriction. Private parties can sue to recover up to $1,500 per violation or three times their actual monetary losses, which can add up quickly in a class action. § 227(b)(3). States may bring civil actions against robocallers on behalf of their citizens. § 227(g)(1). And the Federal Communications Commission can seek forfeiture penalties for willful or repeated violations of the statute. § 503(b).

B

Plaintiffs in this case are the American Association of Political Consultants and three other organizations that participate in the political system. Plaintiffs and their members make calls to citizens to discuss candidates and issues, solicit donations, conduct polls, and get out the vote. Plaintiffs believe that their political outreach would be more effective and efficient if they could make robocalls to cell phones.³ But because plaintiffs are not in the business of collecting government debt, § 227(b)(1)(A)(iii) prohibits them from making those robocalls.

Plaintiffs filed a declaratory judgment action against the U. S. Attorney General and the FCC, claiming that § 227(b)(1)(A)(iii) violated the First Amendment. The U. S. District Court for the Eastern District of North Carolina determined that the robocall restriction with the government-debt exception was a content-based speech regulation, thereby triggering strict scrutiny. But the court concluded that the law survived strict scrutiny, even with the content-based exception, because of the Government's compelling interest in collecting debt.

The U. S. Court of Appeals for the Fourth Circuit vacated the judgment. American Assn. of Political Consultants, Inc. v. FCC , 923 F.3d 159 (2019). The Court of Appeals agreed with the District Court that the robocall restriction with the government-debt exception was a content-based speech restriction. But the court held that the law could not withstand strict scrutiny and was therefore unconstitutional. The Court of Appeals then applied traditional severability principles and concluded that the government-debt exception was severable from the underlying robocall restriction. The Court of Appeals therefore invalidated the government-debt exception and severed it from the robocall restriction.

The Government petitioned for a writ of certiorari because the Court of Appeals invalidated part of a federal statute—namely, the government-debt exception. Plaintiffs supported the petition, arguing from the other direction that the Court of Appeals did not go far enough in providing relief and should have invalidated the entire 1991 robocall restriction rather than simply invalidating the 2015 government-debt exception. We granted certiorari. 589 U. S. ––––, 140 S.Ct. 812, 205 L.Ed.2d 449 (2020).

II

Ratified in 1791, the First Amendment provides that Congress shall make no law "abridging the freedom of speech." Above "all else, the First Amendment means that government" generally "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).

The Court's precedents allow the government to "constitutionally impose reasonable time, place, and manner regulations" on speech, but the precedents restrict the government from discriminating "in the regulation of expression on the basis of the...