FIRST AMENDMENT; FREE SPEECH; INTERMEDIATE SCRUTINY; SEVERABILITY; FCC

Issues

This case asks the Supreme Court to decide whether the TCPA’s unsolicited-cellphone-call ban and its government-debt exception are valid under the First Amendment. Attorney General William P. Barr and the Federal Communications Commission (FCC) (collectively, “the Government”) argue that the government-debt exception is content-neutral because the exception distinguishes permitted and prohibited conduct solely based on economic activity. They also contend that the exception satisfies intermediate scrutiny because the exception strikes the appropriate balance between Congress’s legitimate interests in protecting consumer privacy and preserving public funds. The Government argues that the exception, if invalid, is severable from the cellphone-call ban because the ban stood for twenty-four years before the exception was enacted, and because this history suggests that Congress would prefer to leave the ban in place. The American Association of Political Correspondents, Inc., et al. (collectively, “AAPC”) respond that the ban and the exception are content-based because they restrict permitted call topics and that neither the ban nor the exception survive either strict or intermediate scrutiny because there is no privacy interest to which the cellphone-call ban and the government-debt exception are closely tailored. AAPC refutes that severability is the appropriate remedy because the whole ban is an unconstitutional restriction on speech. The Court’s decision raises concerns about the potential impact on the government’s efforts in protecting consumer privacy and in helping borrowers avoid default on debts owed to or guaranteed by the federal government. The Court’s decision raises concerns about consumers’ privacy interests, the government’s ability to collect debt, and increasing litigation costs.

Questions as Framed for the Court by the Parties

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