Barr v. American Ass’n of Political Consultants

In this case, an association of political consultants, along with a polling firm and two state political parties, filed suit against the U.S. Attorney General and the Federal Communications Commission, claiming that provisions of the Telephone Consumer Protection Act (TCPA) that regulate robocalls to cell phones violate the First Amendment by imposing a content-based restriction on speech. The argument that the TCPA is content-based rests principally on a 2015 amendment to the Act that exempts the use of robocalling equipment to collect debts owed to or guaranteed by the federal government. The U.S. Court of Appeals for the Fourth Circuit held that the exception renders the robocalling restriction content-based and violates the First Amendment because it does not serve a compelling government interest. The court also held, however, that the exception is severable from the rest of the TCPA and that, with the exception invalidated and severed, the TCPA’s robocalling restriction is constitutional.

The federal government defendants requested that the Supreme Court grant certiorari to review both the holding that the debt-collection exception rendered the robocalling restriction content-based and unconstitutional and the holding on severability. Public Citizen submitted an amicus brief arguing that the TCPA is not a content-based speech restriction, but a regulation of conduct (the use of robocalling technology) and that the robocalling restriction, viewed as a whole, survives strict scrutiny. The brief also argued that if the debt-collection exception renders the TCPA unconstitutional, the exception can be severed to save the remainder of the statute. We also explained that in no event should the court foreclose application of the robocalling restriction to commercial speech, as opposed to the political speech at issue in the case.

On July 6, 2020, the Supreme Court ruled that the debt-collection exception is “content-based” and violates the First Amendment. However, the Court agreed with our argument that the exception can be severed and that the remainder of the TCPA is constitutional and fully enforceable.