Free Speech

S. Ct. Strikes Down Content-Based Exception from Robocall Ban,

keeps in place the rest of the law banning robocalls to cell phones.

|The Volokh Conspiracy |

A 1991 federal statute generally banned robocalls to cell phones (among other things), but a 2015 amendment exempted calls "made solely to collect a debt owed to or guaranteed by the United States." In today's Barr v. Am. Ass'n of Political Consultants, the Court held that this was unconstitutional, because it discriminated based on the content of speech; but it held that the 2015 amendment could be struck down, thus keeping the broader ban. As a result, robocalls to cell phones are now generally banned regardless of whether they are made to collect debts.

The Justices split on the constitutionality of the exemption:

  1. Justice Kavanaugh, with whom Chief Justice Roberts and Justices Thomas, Alito, or Gorsuch, agreed on this point, concluded that the exception was content-based and thus unconstitutional unless it passed "strict scrutiny"—i.e., unless it was narrowly tailored to a compelling government interest, a standard that this exception couldn't meet.
  2. Justice Sotomayor concluded that the exception should be subjected only to the lower standard of "intermediate scrutiny," even though it was content-based, but couldn't meet even this lower standard.
  3. Justices Breyer, Ginsburg, and Kagan concluded that the exception should be subjected only to "intermediate scrutiny," and could meet this standard.

The Court split differently on what to do with the law once the exception was invalidated.

  1. All the Justices except Thomas and Gorsuch concluded that the exception could be severed from the rest of the law, so the overall ban could be upheld, minus the exception.
  2. Justice Gorsuch, joined in relevant part by Justice Thomas, would have held that the exception couldn't be severed, and the whole prohibition on robocalls to cell phones had to be struck down.

The specific holding, both as to content discrimination and as to severability, is important but is unlikely to be much of a landmark (chiefly because it largely restates existing First Amendment law and practice). But it is interesting that there's now a solid conservative-liberal divide on the content discrimination rule:

[A.] The conservatives generally view content-based speech restrictions as presumptively subject to strict scrutiny (to oversimplify slightly), following the lead of Justices Brennan and Marshall, who were prominent advocates of the view in the 1970s and 1980s.

[B.] The liberals are inclined to subject content-based but viewpoint-neutral restrictions to a form of balancing test, following the lead of Justice Stevens, who was a prominent advocate of the view (especially in his early days, when he was seen as a centrist rather than a liberal), and of Chief Justice Burger and Justice Rehnquist, who followed Justice Stevens in this on occasion. (Compare, for instance, Metromedia, Inc. v. City of San Diego, a 1981 case which also involved a law that favored commercial speech over other speech, including political speech; the Court there, like here, struck down this content-based preference, but over Justice Stevens' and Chief Justice Burger's and Justice Rehnquist's objections.)

Justice Breyer had long argued for this position, but in recent years he has been increasingly joined by Justices Ginsburg and Kagan, and now by Justice Sotomayor. I hope to blog more soon about this emerging divide, and what it might mean for future cases

NEXT: They Came for the 'Illegals' First, Now They're Going After Immigrants Who Played by the Rules

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  1. But have the jackasses who made two robocalls to my cell phone yesterday heard of this ban?

    1. I was going to ask the same thing — robocalls to cell phones are illegal?

  2. I think we now know that Obamacare will survive the upcoming decision.

    1. There’s also the standing aspect. An Alito opinion saying there is no standing could totally happen. Especially if he gets a chance to cast doubt on Massachusetts v. EPA.

      1. Fair enough. But if it gets by standing, a merit decision will be a reversal

        1. Agreed. Although Adler’s victory lap on this is going to be drowned out by no less than 10 Josh posts on the subject within 24 hours of the decision. So there’s that to look forward to.

    2. How do you reach that conclusion?

      1. 4 Dem votes for sure to start.

        Kavanaugh wrote there is a “strong” presumption of severability. This conforms with what Roberts wrote in Seila Law about severance.

        So it looks like both are against striking down an entire law unless they have no choice.

        6 votes against the 5th circuit position for sure IMHO.

        1. That makes sense. I thought you might be referring to whether what is left of the mandate is unconstitutional (the question that precedes severability).

  3. I guess Kagan thinks, as she first noted in Janus this is another example of weaponizing the First Amendment to intervene in economic and regulatory policy. Breyer arguedThe plurality claims that its approach, which categorically applies strict scrutiny to content-based distinctions, will not “affect traditional or ordinary economic regulation of commercial activity.” But how is that so?He goes on to list example of regulations that would appear to be based on the content of speech. Is the Court arguing that these examples should fail First Amendment scrutiny (and is that weaponizing the First Amendment), or are they arguing they are “economic regulation[s] of commercial activity that impose incidental burdens on speech,” and how can you tell the difference?

    In any event, I would like Eugene to produce a video on commercial speech.

    1. Josh R: (1) What do you mean by “weaponizing”? I know others have used the term as to speech restrictions, but I’m not sure exactly what that term refers to.

      (2) The Court has of course concluded that restrictions on commercial speech are subject to lower First Amendment scrutiny than are restrictions on other speech. But here the law restricted, among other things, political speech, and indeed treated it less well than certain other kinds of speech that is more sensibly labeled “commercial” (attempts to collect certain debts). Whatever extra latitude might properly be provided for restrictions on commerce, this isn’t such a restriction, right?

      1. Quoting from Kagan’s dissent in Janus

        it
        prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy

        I take it she means those who want a particular policy outcome can illegitimately (in her opinion) use the First Amendment as a weapon to do so.

        Did you mean to say that restrictions on commercial speech are subject to lesser First Amendment scrutiny? I’m not sure that is the case. Under the Court’s logic, would the holding have been different had the respondents been a non-political commercial venture other than collecting debts owed to the United States?

        1. “it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.”

          Well, it IS kind of inherent in having legally enforceble rights, that the American people, acting through their state and local officials, can’t chose to violate them, even if they have a reason for wanting to do so.

        2. Whoops, sorry, yes, lesser First Amendment scrutiny — will try to fix the comment to reflect that. And, yes, that remains black-letter law.

          If the law simply discriminated among different kinds of commercial speech, then it wouldn’t have been subject to strict scrutiny. But since it discriminates against, among other things, noncommercial speech, it is subject to strict scrutiny, regardless of whether it’s challenged by commercial speakers (since under the overbreadth doctrine the commercial speakers are entitled to assert the rights of the fully protected speakers).

          As to weaponizing, doesn’t the definition you give simply mean “adopting broader interpretations of the First Amendment than I think are right”? After all, every First Amendment challenge uses the First Amendment as a weapon to achieve a particular policy outcome.

  4. Gorsuch … I agree with his opinion on severability more generally, but he keeps marketing his position as the path of least destruction. Which is just not true … true, a single injunction only affects the parties at hand and no one else. But there is no reason an injunction in favor of AAPC is limited to just them … the case is precedent, and for every statute, a single unconstitutional section invalidates the entire law.

    How to resolve the leveling up leveling down issue more generally … no idea. I do think, as I thought in Moreales vs Sessons, that removing rights from parties that have nothing to do with the case at hand is extremely uncomfortable, which the majority just refuses to acknowledge for some reason.

    But just ignoring severability doctrine as a solution would have the effect of striking down whole statutes over a small section

    From this, I think Thomas and Gorsuch are going to strike down Affordable Care Act. They might pull Alito along. Kavanagh will be the 5th vote with the liberals.

  5. And yet they won’t ban political robocalls.

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