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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