Barr v. American Association of Political Consultants, Inc.

ARE THE CHALLENGED PROVISIONS CONTENT-BASED?

The Government argues that the government-debt exception to the automated-call restriction in the TCPA is not a content-based regulation of speech. Brief for Petitioner, William P. Barr & Federal Communications Commission at 14–15. While the Constitution requires at least some scrutiny of Congress’s restrictions on speech, the Government explains, courts treat content-neutral regulations more deferentially than content-based restrictions. Id. The government-debt exception is content-neutral, the Government contends, because the TCPA’s restrictions turn on factors independent of content, such as whether the debt is government-owned and whether the caller is authorized to collect the debt. Id. at 16–17. As an example, the Government posits that an automated call consisting of the content “please promptly submit this month’s payment” would be permissible if payment were on a government debt, but impermissible on a private debt. Id. Thus, the Government argues, the content of many such calls will be irrelevant to determining whether the TCPA prohibits the calls, making the government-debt exception a content-neutral one. Id. at 17–18. Although the Government concedes that it will occasionally be necessary to view a call’s content as evidence that the caller seeks to collect a government debt, it maintains that merely using content as evidence does not amount to a content-based restriction triggering strict scrutiny. Id. at 19. Instead, the Government contends, the exception focuses on the economic activity the caller engages in rather than the content of calls. Id. Similarly, the Government maintains, other statutes such as the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and various securities laws target communications incident to specific kinds of economic activity, and because those laws have never been found to regulate content, neither should the government-debt exception. Id. at 20–22.

The American Association of Political Consultants, Inc., et al. (collectively, “AAPC”) maintain that the government improperly focuses on the government-debt exception rather than the cellphone-call restriction. Brief for Respondents, American Association of Political Consultants, Inc., et al. at 16. AAPC contends that the cellphone-call restriction is content-based because even government-debt collectors may not discuss, for example, loan consolidation and forgiveness—the only permissible topic is “collection.” Id. at 18. As further indication that the restriction is content based, AAPC cites an FCC order indicating that if a call includes advertising- or sales-related content, this content transforms an otherwise permissible call into an impermissible one. Id. at 17. Countering the Government’s suggestion that the government-debt exception is the cellphone-call restriction’s only potential infirmity, AAPC maintains that the cellphone-call restriction privileges the speech of government actors over that of citizens and that the provision vests significant discretion in the FCC to make content-based exceptions. Id. at 18–20. AAPC notes that the content-neutral factors on which the Government purports to assess calls––whether the debt was owed to the United States, whether the caller had authority, and whether the debt was delinquent––originate not from the statute, but from a later-withdrawn proposed FCC regulation, which the AAPC argues is entitled to no weight. Id. at 21–22. In any event, AAPC argues, the statute is still constitutionally infirm because it effects a content-based ban on speech in that it prohibits speech based on the “message a speaker conveys.” Id. AAPC further distinguishes the FDCPA, FCRA, and other laws cited by the Government in that those laws do not contain the same “self-serving” government-speech provisions and more closely track economic activity. Id. at 24–25.

DOES THE EXCEPTION SURVIVE THE APPROPRIATE LEVEL OF CONSTITUTIONAL SCRUTINY?

The Government contends that because the government-debt exception is content-neutral, it need only satisfy intermediate scrutiny to survive a First Amendment challenge. Brief for Petitioner at 24. The exception satisfies intermediate scrutiny, the Government argues, because it is narrowly tailored to further the government’s interest in protecting the public fiscal interest while intruding only minimally on the consumer privacy interests that the TCPA was designed to protect. Id. at 24. The Government claims that hundreds of billions of dollars of delinquent debt owed to the United States remains uncollected. Id. at 25. Collecting this debt is costly to the Government, it argues, and allowing automated calls would save the Government and public an estimated $120 million over ten years. Id. Moreover, the Government continues, the government-debt exception less strongly implicates the TCPA’s consumer-privacy aims because those who borrow money under an obligation to repay it should reasonably expect to be contacted if they shirk their obligations. Id. at 28. Borrowers, the Government contends, therefore have a lessened expectation of privacy with respect to calls to collect money owed. Id. The government-debt exception’s minimal intrusiveness is further reduced, the Government argues, by its restricted reach; only those with government loans receive calls, and only from authorized collectors. Id. at 30. Thus, the Government concludes, because of weighty countervailing public fiscal interests in government debt-collection calls, Congress could permissibly prioritize fiscal interests over privacy interests in this context. Id. at 32. The Government counters the Ninth Circuit’s suggestion that Congress could have content-neutrally allowed for government debt collection by tying the exception to the debtor’s relationship with the government, responding that such an exception would justify any call to a government debt holder for any purpose, and would thus be overbroad and fail to protect consumer privacy. Id. at 26.

AAPC replies that because the overarching cellphone-call restriction is content-based, the restriction must satisfy strict scrutiny. Brief for Respondent at 25. The ban fails strict scrutiny, AAPC argues, because privacy is not a “compelling” government interest, and even if it were, the ban is not tailored to the asserted privacy interest. Id. at 25–26. If the Government’s asserted privacy interest covers all unsolicited calls, then the TCPA’s residential-call provision allowing noncommercial and non-telemarketing calls to homes is inconsistent with such a broad privacy interest because the residential-call provision is less expansive than the cellphone-call restriction. Id. at 26–27. Furthermore, AAPC maintains, the “sweeping” exceptions that Congress allows to the cellphone-call ban further undermines the Government’s insistence on the importance of its asserted privacy interest. Id. at 28. On the other hand, AAPC continues, if the asserted privacy interest is read more narrowly as extending only to nuisance telemarketing calls, the cellphone-call ban is overbroad because it extends to calls made by devices that even potentially could function as auto-dialers, including smartphones. Id. at 29–30. Although Congress likely contemplated protecting cellphone users from unwanted charges in enacting the cellphone-call restriction, AAPC asserts, because most cellphone carriers no longer impose charges for calls, the Government cannot rely on charge-avoidance to justify the ban’s broad scope. Id. AAPC further stipulates that even if intermediate scrutiny applied, the cellphone-call restriction still fails. Id. Because AAPC is challenging the ban, not its exception, the Government’s fiscal interests in enacting the exception are irrelevant, AAPC argues. Id. at 31. Even under intermediate scrutiny, AAPC contends, the Government bears the burden of showing that the ban furthers the Government’s asserted interest. Id. Because the Government fails to defend the poor fit between the asserted privacy interest and the ban’s coverage, AAPC argues, the ban fails even intermediate scrutiny. Id. at 33.

IF CONTRARY TO THE FIRST AMENDMENT, IS THE GOVERNMENT-DEBT EXCEPTION SEVERABLE FROM THE REST OF THE TCPA?

The Government maintains that the government-debt exception is severable from the TCPA’s automated-call restriction. Brief for Petitioner at 33–34. The Government argues that the touchstone for severability is congressional intent. Id. Congress declared its intent unambiguously, the Government contends, by including a severability clause providing that if any part of the TCPA is held invalid, a reviewing court shall to the extent possible leave the Act intact. Id. at 34. The Government draws further support for severability from the TCPA’s twenty-four-year history prior to the government-debt exception. Id. at 35. This history suggests that although Congress may have desired a government-debt exception, Congress would prefer the automated-call restriction without the exception to no automated-call restriction at all. Id. Moreover, the Government contends, although striking down the exception would lead to more speech being restricted, Congress is still empowered to impose those restrictions, and the Court should not invalidate the entire statutory scheme when more targeted remedies are possible. Id. at 40–42.

AAPC responds that the Government’s focus on severability is misguided because the overall cellphone-call ban is unconstitutional. Brief for Respondents at 35. Although the content-based government-debt exception is evidence of improper justification, AAPC argues, severing the evidence of impropriety from the statute does nothing to remedy the speech restriction prohibited by the First Amendment. Id. Moreover, AAPC argues, a court would implicate separation-of-powers concerns by striking down the exception but leaving the ban in place, because the court would be prohibiting speech that Congress preferred to preserve. Id. at 38–39. The Court’s First Amendment precedent militates in favor of striking down rather than extending the ban, AAPC argues, and the Government errs in relying on Equal Protection precedent, which does allow for striking down exceptions. Id. at 40–43, 45. The First Amendment is not concerned with unequal treatment, AAPC maintains, but abridgment of speech rights, and therefore, “levelling up” remedies such that the exception applies to no one are inappropriate. Id. at 46. AAPC argues that the rest of the TCPA would be undisturbed, consistent with the severability clause, if the cellphone-call ban were overturned, and Congress’s pursuit of other anti-robocall measures suggests that it would prefer a more tailored approach to the current one. Id. at 46–47, 49.