By: Aaron Thomas Fadden
Setting the Stage
This past July in Barr v. American Ass’n. of Political Consultants, Inc., the Supreme Court reaffirmed that companies cannot use automated systems to contact consumers, holding that while the Telephone Consumer Protection Act of 1991 was constitutional, the 2015 amendment which provided an exception allowing the U.S. Government to use automated calls to collect debts was a violation of the First Amendment. In doing so, the Supreme Court effectively affirmed that political advocacy groups are still prohibited from using automated calling systems to contact the mobile phones of U.S. consumers.
History of the TCPA
Back when cellular phones first became available, companies could easily disguise an advertisement in the form of a phone call from an automated system directly to a consumer. The unintended effect of this was that consumers would often find themselves being charged by their mobile phone company for unwanted phone calls received from advertisers.
In an effort to combat these unwanted calls, the United States Congress introduced the Telephone Consumer Protection Act (“TCPA”) of 1991. One of the provisions in this legislation effectively made it illegal to use an automated call system to contact consumers in a way that could result in the consumer being charged. Although intended primarily to protect consumers from unsolicited advertising, the Act also made it illegal to use automated call systems in political campaigns.
2015 Amendment and Litigation
In 2015, the TCPA was amended as part of the yearly appropriations process. This amendment created an exception that allowed the U.S. government to use automated call systems to directly contact consumers who owed the government money.
For years, political advocacy groups have complained that the TCPA should not apply in the context of political advertising. They claim that the TCPA makes it difficult to spread important information about candidates and conduct informal polling about candidate performance.
When the 2015 amendment was passed, these groups saw an opportunity to have the TCPA repealed. Accordingly, a group of political advocates filed a federal suit in the Eastern District of North Carolina claiming that the new amendment created a content-based form of discrimination on speech, and thus violated the First Amendment of the United States Constitution. The advocacy groups pushed the court to find the TCPA unconstitutional and repeal it in its entirety.
The District Court granted summary judgment in favor of the government. The court held that although there was speech discrimination, it met the strict scrutiny requirement of serving a compelling government interest, namely collecting outstanding funds.
On appeal, the Fourth Circuit vacated and remanded. The court agreed that since this was a content-based restriction, strict scrutiny should apply, but it held that the trial court had incorrectly applied the test. Importantly, the court also found that the 2015 amendment was severable from the TCPA. The government petitioned for certiori.
2020 SCOTUS Decision
The Supreme Court agreed to hear the case in 2020. There were two primary issues the Court addressed. First, whether the 2015 amendment to the TCPA was a violation of the First Amendment, and second, whether the amendment was severable.
The majority opinion, authored by Justice Kavanaugh, began with a statement that likely resonates with most of the country: “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.”
This was not the first case the Supreme Court has heard regarding content-based restrictions on free speech regarding politics. In Reed v. Town of Gilbert, a 2006 case, the court held that a ban on political signs was a content-based restriction on free speech, and that strict scrutiny should apply for all content-based restrictions.
Applying Reed to Barr, the Supreme Court first determined that the 2015 amendment was a content-based restriction since it “favor[ed] speech made for the purpose of collecting government debt over political and other speech.” Therefore, strict scrutiny applied. In a 6-3 decision, the Court decided that the 2015 Amendment failed to pass the strict scrutiny test since “[t]he Government ha[d] not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, [and] issue advocacy.” Therefore, the act violated the First Amendment.
Once the Court determined the 2015 amendment to the TCPA failed the strict scrutiny test and was therefore unconstitutional, they next had to decide whether the amendment was severable. In a 7-2 decision, the Court agreed that the amendment was severable. The majority opinion specifically pointed out that the TCPA has an express severability clause, and that, even without this clause, there should be a presumption of severability on congressional statutes.
Justice Gorsuch and Justice Thomas, the two dissenting Justices, argued that the TCPA was not severable. They believed that the entire law should be enjoined, thereby allowing automated calling systems to legally contact cell phones.
Implications in Future Election
So how does the Barr decision impact the 96% of Americans who have cellular devices? The short answer is that it probably doesn’t. Although the political activists had hoped to repeal the entire TCPA, the Supreme Court refused to do so. This means that political campaigns are still prohibited from contacting you using automated calling systems. If a campaign does contact you using an automated call system, you should take 2 minutes of your day and report it.
This also means that, for the time being, the government is prohibited from using automated calls to contact the general public about debts owed. Likely, the government will resort to using the USPS to contact debtors in the foreseeable future.
Rest assured, for those who want more information about political campaigns, the Barr holding does not impact a campaign’s ability to use live calls, calls to landlines, or automated calls to supporters who have agreed to receive these automated calls. Additionally, voters may continue to receive political information via text messages as long as they are not automated, a trend we have seen a great increase of during the 2020 elections. Finally, as long as the USPS continues to operate, politicians are free to continue mailing out political flyers and information as they please.