SCOTUSblog by Amanda Shanor 7/7/2020
Opinion analysis: Fractured court rules in favor of political consultants in First Amendment challenge to federal robocall law but keeps robocall ban in place
On Monday, in a fractured set of opinions, the Supreme Court ruled in favor of an association of political consultants challenging the Telephone Consumer Protection Act of 1991. That statute bans robocalls to cellphones. In 2015 Congress added an exception to permit robocalls collecting government-backed debts. In Barr v. American Association of Political Consultants, the court decided that the 2015 exception violates the First Amendment’s speech clause. The consultants won the constitutional argument, but they did not achieve the practical result they sought. Instead of striking down the robocall ban altogether, the court invalidated only the exception. After the court’s ruling, political robocalls are still illegal, but so are robocalls to collect government-backed debts — showing, perhaps, that dislike of robocalls spans ideological differences.
In 1991, Congress passed the TCPA, which prohibits automated calls—that is, calls made by an automatic telephone dialing system or that use an artificial or prerecorded voice—to cellphones. Twenty-four years later, in 2015, Congress amended the act to add an exception for calls made to collect a debt owed to or guaranteed by the federal government.
A group of political and nonprofit organizations brought suit, arguing that the law violates the First Amendment’s speech clause. They wanted to make political robocalls, including in the run-up to the 2020 elections, but were prohibited from doing so by the TCPA. The consultants argued that the law is “content based†— a First Amendment term signifying that a law applies differently, or at all, depending on the content of the expression. They pointed to the act’s government-backed-debt exception, arguing that callers can make robocalls about some topics (government-backed loans) but not about others. The law, they said, unconstitutionally favors government-debt-collection speech over other speech, including political fundraising and messaging. Because the TCPA is content based, they contended, the most stringent form of First Amendment review — called “strict scrutiny†— should apply, and under that standard the law could not survive. The consultants asked that the entire 1991 robocall ban be struck down.
More:
https://www.scotusblog.com/2020/07/opinion-analysis-fractured-court-rules-in-favor-of-political-consultants-in-first-amendment-challenge-to-federal-robocall-law-but-keeps-robocall-ban-in-place/
