The US Supreme Court today struck down a provision in US law that let debt collectors make robocalls to cell phones, ruling that the law violates the First Amendment by favoring debt-collection speech over other speech.

The Telephone Consumer Protection Act (TCPA) of 1991 prohibits “almost all robocalls to cell phones,” but Congress in 2015 amended the law to add “a new government-debt exception that allows robocalls made solely to collect a debt owed to or guaranteed by the United States,” the Supreme Court noted in today’s ruling. The opinion was written by Justice Brett Kavanaugh.

“As the Government concedes, the robocall restriction with the government-debt exception cannot satisfy strict scrutiny,” the ruling said. “The Government has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, issue advocacy, and the like.” Government-backed loans affected by the ruling include student loans, home mortgages, veterans’ loans, farm loans, and business loans.

The case began when the American Association of Political Consultants and three other organizations that “make calls to citizens to discuss candidates and issues, solicit donations, conduct polls, and get out the vote” sought the invalidation of the entire TCPA, the ruling said:

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 of the nine justices determined that the 2015 update to the law “impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment,” the ruling said. But instead of striking down the whole law, the Supreme Court found that the TCPA can be enforced without the exception for debt collectors. That’s partly because the “TCPA is part of the Communications Act, which has contained an express severability clause since 1934.” But even if that clause didn’t exist, “the presumption of severability would still apply,” the court said.

“The remainder of the law is capable of functioning independently and would be fully operative as a law. Severing this relatively narrow exception to the broad robocall restriction fully cures the First Amendment unequal treatment problem and does not raise any other constitutional problems,” the high court said. Because of traditional severability principles, “the 2015 government-debt exception must be invalidated and severed from the remainder of the statute,” the court said.

While plaintiffs didn’t get what they asked for, Americans now have legal protection against robocalls from debt collectors. “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 Supreme Court said.

The plaintiffs in the case did not challenge the TCPA’s ban on robocalls to home phones. The Federal Communications Commission enforces the law but is largely ineffective at collecting on fines issued to violators.

Court “side[d] with American consumers”

Today’s Supreme Court ruling upheld a previous ruling by the US Court of Appeals for the Fourth Circuit. That Fourth Circuit judgment overturned a District Court ruling that upheld the debt-collection provision “because of the Government’s compelling interest in collecting debt,” the Supreme Court ruling said.

Sen. Ed Markey (D-Mass.) and Rep. Anna Eshoo (D-Calif.) praised the court’s decision today. “The court rightly found that government debt collectors aren’t entitled to a special exception to the TCPA’s ban on robocalling,” Markey and Eshoo said in a joint statement. “We applaud the court’s decision to side with American consumers, protect our right to privacy from these abusive calls, deter countless scams that target our most vulnerable populations, and ensure that our phones will remain usable.”

Noting that the court allowed the TCPA to stand on its own without the debt-collection exception, Markey and Eshoo said that “today’s decision preserves the TCPA’s ability to protect Americans from countless unwanted robocalls every year, every day, and indeed every hour and minute.” Markey was one of the authors of the 1991 law.

FCC Chairman Ajit Pai also welcomed the ruling, saying that “the Court found that the last Administration’s attempt to create a special exemption for favored debt collectors was not only bad policy but unconstitutional.”

How each justice ruled

Kavanaugh was joined by Chief Justice John Roberts, Clarence Thomas, and Samuel Alito in finding that “the robocall restriction with the government-debt exception is content-based” and is “subject to strict scrutiny.” Content-based restrictions on speech have to pass greater legal scrutiny than content-neutral restrictions.

“The Government’s stated justification for the government-debt exception is collecting government debt,” the Kavanaugh-written opinion said. “Although collecting government debt is no doubt a worthy goal, the Government concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.”

Justice Sonia Sotomayor concurred with the judgment, finding that the debt-collection provision “fails intermediate scrutiny because it is not ‘narrowly tailored to serve a significant governmental interest.'” Justice Neil Gorsuch found that “the TCPA’s rule against cellphone robocalls is a content-based restriction that fails strict scrutiny,” but rejected the severability argument and said “the plaintiffs are entitled to an injunction preventing [the TCPA’s] enforcement against them.”

Meanwhile, “Justice [Stephen] Breyer, joined by Justice [Ruth Bader] Ginsburg and Justice [Elena] Kagan, would have upheld the government-debt exception, but given the contrary majority view, agreed that the provision is severable from the rest of the statute,” the ruling said.

The TCPA generally bans unsolicited prerecorded telemarketing calls but explicitly provides an exemption for tax-exempt nonprofit organizations.

https://arstechnica.com/?p=1689578