Part II: Barr v. AAPC and Content-Based Discrimination

Justice Gorsuch does not agree with, or even cite, Reed v. Town of Gilbert.

|The Volokh Conspiracy |

Earlier today, I published Part I in four-part series on Barr v. American Association of Political ConsultantsThe first installment considered the concept of judicial departmentalism in Justice Kavanaugh's plurality opinion. This second installment will consider the sharp divide in the Court's First Amendment jurisprudence.

Justice Kavanaugh's plurality opinion was joined by Chief Justice Roberts, Justice Alito, and Justice Thomas. However, Justice Gorsuch did not join the plurality's First Amendment analysis. As a result, there is no controlling opinion. At first, I couldn't quite make sense of where the two Trump appointees differed. But on further reflection, I think that Justice Gorsuch does not agree with Reed v. Town of Gilbert (2015). Indeed, Justice Gorsuch does not even cite Justice Thomas's majority opinion in Reed.

The plurality applies Reed in this fashion:

As relevant here, a law is content-based if "a regulation of speech 'on its face' draws distinctions based on the message a speaker conveys." Reed. That description applies to a law that "singles out specific subject matter for differential treatment." For example, "a law banning the use of sound trucks for political speech—and only political speech—would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed." …

In short, the robocall restriction with the government-debt exception is content-based. Under the Court's precedents, a "law that is content based" is "subject to strict scrutiny." Reed. The Government concedes that it cannot satisfy strict scrutiny to justify the government-debt exception. We agree.

Justice Gorsuch follows a different analysis. Indeed he seems to favor an even stricter form of strict scrutiny than the plurality adopts.

When the government seeks to censor speech based on its content, favoring certain voices and punishing others, its restrictions must satisfy "strict scrutiny"—meaning they must be justified by interests that are "compelling," not just significant. After all, a constitutional right would hardly be needed to protect popular speakers; the First Amendment does its real work in giving voice to those a majority would silence.

Specifically, Justice Gorsuch would require a "compelling" interest.

The statute fails strict scrutiny because the government offers no compelling justification for its prohibition against the plaintiffs' political speech. In fact, the government does not dispute that, if strict scrutiny applies, its law must fall.

And Justice Gorsuch finds the government's defenses to be short of "compelling"

 No one questions that protecting consumer privacy qualifies as a legitimate and "genuine" interest for the government to pursue. But before the government may censor the plaintiffs' speech based on its content, it must point to a compelling interest. And if the government thinks consumer privacy interests are insufficient to overcome its interest in collecting debts, it's hard to see how the government might invoke consumer privacy interests to justify banning private political speech.

Reed did not call for a "significant" interest. It used the word "compelling" over and over again. Justice Kavanaugh's opinion, however, did not decide on whether the government's interest was "compelling." It simply applied strict scrutiny because the regulation was content based. I'm still not fully sure where Justice Gorsuch departs from the plurality, but something about Reed rubs him the wrong way.

Justice Gorsuch also draws a parallel between the Court's Free Speech jurisprudence and its Free Exercise jurisprudence. For Justice Gorsuch, the key element is "compellingness."

Or, as the Court has elsewhere put it, the compellingness of the government's putative interest is undermined when its law "leaves appreciable damage to [the] supposedly vital interest unprohibited." Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993); see also Gonzales v. O Centro Esprita Beneficente Unio do Vegetal (2006). The insight is simple: A law's failure to cover "significant tracts of conduct implicating [its] putatively compelling interes[t] can raise . . . the inference that the . . . claimed interest isn't . . . so compelling after all." Yellowbear v. Lampert, 741 F. 3d 48, 60 (CA10 2014).

In case you are curious, then-Judge Gorsuch wrote Yellowbear v. Lampert (CA10 2014). For some time, it was quite rare for Justices to cite their circuit court opinions. But now, it seems to become more normal. Justice Breyer even cited his own 1989 circuit court decision in Espinoza. I'll stop keeping score at home.

The Court's progressives also fractured. Only Justice Sotomayor found the robocall statute to be unconstitutional. She would have reviewed the exception with intermediate scrutiny.

Justice Sotomayor would have applied intermediate scrutiny.

In my view, however, the government-debt exception in 47 U. S. C. §227(b) still fails intermediate scrutiny because it is not "narrowly tailored to serve a significant governmental interest." Ward v. Rock Against Racism (1989). Even under intermediate scrutiny, the Government has not explained how a debt-collection robocall about a government-backed debt is any less intrusive or could be any less harassing than a debt-collection robocall about a privately backed debt…. The Government could have employed far less restrictive means to further its interest in collecting debt, such as "secur[ing] consent from the debtors to make debt-collection calls" or "plac[ing] the calls itself." Nor has the Government "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 Breyer, joined by Justices Ginsburg and Kagan, dissented. Justice Breyer repeated his longstanding grievances against so-called First Amendment Lochnerism. And he incorporated Justice Kagan's objections in Reed.

Justice Breyer would adhere to what he calls "First Amendment values." In this case, strict scrutiny is irrelevant.

The problem with that approach, which reflexively applies strict scrutiny to all content-based speech distinctions, is that it is divorced from First Amendment values. This case primarily involves commercial regulation—namely, debt collection. And, in my view, there is no basis here to apply "strict scrutiny" based on "content-discrimination."

And what are these values? Justice Breyer explains in his usual prosaic style:

To appreciate why, it is important to understand at least one set of values that underlie the First Amendment and the related reasons why courts scrutinize some speech restrictions strictly. The concept is abstract but simple: "We the People of the United States" have created a government of laws enacted by elected representatives. For our government to remain a democratic republic, the people must be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences. The people must then be able to transmit their resulting views and conclusions to their elected representatives, which they may do directly, or indirectly through the shaping of public opinion. The object of that transmission is to influence the public policy enacted by elected representatives.

Contrast this clunky prose with Justice Kagan's smooth reference in Chiafalo to the Preamble:

A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.

Justice Breyer would only consider heightened scrutiny in cases involving "political speech," "public forums," and "viewpoint discrimination."

It is thus no surprise that our First Amendment jurisprudence has long reflected these core values. This Court's cases have provided heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issue….

To do otherwise would inhibit the democratic process.

From a democratic perspective, however, it is equally important that courts not use the First Amendment in a way that would threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas enacted as result of that public discourse. As a general matter, the strictest scrutiny should not apply indiscriminately to the very "political and social changes desired by the people"—that is, to those government programs which the "unfettered interchange of ideas" has sought to achieve. Meyer. Otherwise, our democratic system would fail, not through the inability of the people to speak or to transmit their views to government, but because of an elected government's inability to translate those views into action.

In other words, the First Amendment would empower people to lobby the government to take certain actions. But that same First Amendment would prevent the government from taking those actions. This argument is well-stated.

The Court continues to fracture over content-based discrimination.

Update: I have now had a chance to review AAPC's merits brief. I think I understand why Justice Gorsuch disagreed with the plurality.

In short, AAPC challenged the constitutionality of the 1991 prohibition on robocalls; AAPC did not challenge the 2015 amendment that allowed certain robocalls for debt collection, but prohibited all other robocalls.

The plurality considered whether the 2015 amendment was unconstitutional. Justice Gorsuch considered whether the 1991 statute was unconstitutional. Justice Kavanaugh's plurality ducks the latter question. He relies on the government's concession that the 2015 amendment cannot satisfy strict scrutiny.

In this fashion, Justice Gorsuch's opinion was far more sweeping, and considered the precise remedy the Plaintiffs sought.

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  1. You are also welcome to our academic services such as Understanding a Home Burial

  2. Breyer’s position would basically be a repeal of the First Amendment. He thinks only speech he likes should get protection, which undermines the whole point.

    1. I wish Sotomayor had explained her position more thoroughly, and I’m a little surprised she didn’t. It seems like it would address Breyer’s concerns about commercial speech without completely disregarding the First Amendment by actually looking at whether the restriction is justifiable.

      1. Yeah. Sotomayor’s position is interesting. There’s definitely a case for intermediate scrutiny here. There’s no case for “any speech I don’t like is ‘inconsistent with First Amendment values'”.

        1. Breyer is an old school progressive, as he laid out in Active Liberty; they viewed, and he views, things like free speech as instrumental goods rather than inherent goods. Free speech doesn’t have value for its own sake; it has value only insofar as it actively promotes democratic principles.

    2. I don’t think you have fairly characterized Breyer’s position. He believes regulation of commercial speech (whether or not he likes it) should not be afforded strict scrutiny, and in this very case “the appropriate standard requires a closer look at the restriction than does a traditional rational basis test.” He then describes what amounts to intermediate scrutiny.

      1. Commercial speech isn’t afforded strict scrutiny right now.

        Breyer is arguing that a bunch of regulations of non-commercial speech that he sees as “dangerous” should get a presumption of constitutionality. In other words, he’s a censor- if he likes the speech, it gets full protection. If he doesn’t, it doesn’t.

  3. I read Gorsuch not to have a problem with Reed but with the notion that the TCPA itself is constitutional. The plurality specifically said that it was unconstitutional WITH the exemption and the remedy indicates they fell the TCPA is fine without it. Gorsuch on the other hand felt the ban itself was unconstitutional without regard to the exemption. Perhaps I’m reading it wrong but I thought that is where the disagreement was.

  4. I read Gorsuch as having a problem with the idea that striking the exemption makes more conduct illegal, specifically the conduct of people who were not party to the case.

    I think he might think that the TCPA is fine without the exception, but because he doesn’t view the role of the Supreme Court to “invalidate” laws but rather prevent their enforcement, it’s not an appropriate Court remedy to eliminate the exception. That’s a legislative duty. The TCPA could have been upheld if the exception had never been passed, but once it was, the Court was bound to resolve the contradictions in the lenient fashion. This is seen in the severability argument, later.

    Goes back to Gorsuch being fairly libertarian with a presumption of liberty.

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