Chief Justice John Roberts has made clear in speeches and in his end-of-year “state of the judiciary” message that he worries about public perceptions of the Supreme Court and of federal courts in general.
Today, advocates for “free speech” will offer a good way for the Court to become the least popular institution in America: by making it decide that Americans have to live with unsolicited, repeated prerecorded calls—so-called robocalls—to their cellphones.
That’s the opportunity presented by Barr v. American Association of Political Consultants, a First Amendment challenge to a federal law that forbids anyone from calling a cellphone to transmit a recorded message.
If you own a cellphone, you likely receive unsolicited recorded calls every few days at least. Since I am among the older generation, mine tend to be either from “Nancy” telling me that I can get great new health insurance or from an “IRS agent” telling me that my Social Security number has been “suspended” and that “local law enforcement” will arrest me within hours if I don’t call back and give my bank-account details.
They are enough of a nuisance that I don’t answer my cellphone anymore if I don’t recognize the number. They are also forbidden under a law called the Telephone Consumer Protection Act (TCPA), passed in 1991. But the plaintiffs in this case—a professional organization of political managers, strategists, and pollsters—are asking the Court for it to be otherwise, to invalidate the TCPA’s robocall prohibition. If they prevail, it will be open season on your cellphone, courtesy of your Supreme Court.
As the Electronic Privacy Information Center warned in an amicus brief in this case, technology in robocalls has reached a staggering level: “There are now dozens of services offering mass texting software to marketers that are easily accessible online.” These companies offer ways to “spoof” (that is, portray the calling number as a local number), to make thousands of calls at once, and to drop voicemails into customer voicemails. With a 30-second online search, I found myself being offered the services of a company highlighting that its “calling capacity has been expanded to allow over 16 million calls daily for large political broadcasts.”
Does the First Amendment protect this intrusive technology, which is, in many ways, tailor-made for large-scale fraud?
The 1991 statute made it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service.” The penalties for violations can reach as high as $1,500 a call. (One witness at a congressional hearing in 2018 told the lawmakers that the Federal Communications Commission was pursuing him with a demand for $180 million in fines for an alleged spoofed robocall campaign.)
So far, so good. But in 2015, for reasons that aren’t clear, Congress quietly inserted a new exemption into a mammoth budget bill. Under the amendment, robocalls would be permitted if they were “made solely to collect a debt owed to or guaranteed by the United States.”
There’s little legislative history to explain the change, but it was obviously a bonanza for private collection agencies. Note that it is not simply debts owed to the federal government; the exemption allows collection robocalls for any debt that the United States guarantees. When it considered the statute, the Fourth Circuit Court of Appeals noted that as many as 41 million student loans are guaranteed by the federal government; it noted also that “various other categories of such debt are handled through other departments, which include the Department of Agriculture, the Department of Housing and Urban Development, and the Department of Health and Human Services.”
The 2015 amendment immediately attracted the attention of industry groups, including the American Association of Political Consultants (AAPC), an industry group whose members run political campaigns or advise political groups seeking to influence public opinion. These members, the group’s brief says, “make calls to discuss candidates and issues, solicit candidate donations, conduct polls on political and policy issues, encourage voters to return their ballots, and organize ‘get out the vote’ efforts.”
Under FCC regulations, political calls can be made to residential numbers. But, the commission argues, cellphones present different privacy interests, and robocalls to them are much more intrusive. At the same time, the number of households that don’t have landlines is exploding, so the ability to call landlines is less valuable than it was.
After the 2015 amendment was enacted, the AAPC brought a suit in a federal court in North Carolina, asking the court to strike down the entire robocall ban. Its argument deployed one of the most powerful and elusive concepts in First Amendment law: the idea of a “content-based restriction on speech.”
“Content basis” as a legal category originated with a 1972 case called Police Department of the City of Chicago v. Mosley, a challenge to a Chicago ordinance that banned picketing within 150 feet of a school—unless the picketing was part of a “labor dispute.” The Supreme Court unanimously struck down the ordinance; in an opinion for seven justices, Justice Thurgood Marshall wrote, “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
Since Mosley, the Court has evolved a rule: A “content-based restriction” on speech is presumptively invalid. This rule would be more useful if it defined what content-based means. For years after Mosley, it seemed to be a useful shorthand for two ideas: subject-matter-based and viewpoint-based. Government can sometimes regulate speech because of what it’s about—for example, it can restrict the office mailboxes of its employees to documents concerning business. Usually, however, it cannot, and it can virtually never restrict speech because it disapproves of the speech’s point of view. Thus, a 1988 case, Boos v. Barry, struck down a District of Columbia ordinance that banned any demonstration or sign near a foreign embassy—if the demonstration or sign criticized that foreign government.
Viewed this way, the notion of “content-based” was useful. But the ambiguity of the wording opened it up to play a role in the remarkable evolution of Justice Anthony Kennedy.
Kennedy, for all his endearing traits, was not a subtle thinker. In fact, his jurisprudence calls to mind an ungenerous comment by Justice Oliver Wendell Holmes Jr. about his colleague Justice John Marshall Harlan. Holmes compared Harlan’s intellect to “a powerful vise the jaws of which couldn’t be got nearer than two inches to each other.”
As early as 1991, Kennedy was signaling that he believed the First Amendment was in essence absolute, no matter how important the interest the government was protecting. Unless the law fell into one of the few categories of “unprotected speech”—defamation, for example, or incitement to lawless action—the government could not regulate it at all, regardless of how urgent the need. “Even a law that passed ‘strict scrutiny,’” he wrote in a separate opinion in a case called Simon & Schuster v. Members of New York State Crime Victims Board, should fall, “for resort to the test might be read as a concession that States may censor speech whenever they believe there is a compelling justification for doing so.”
Within the jaws of Kennedy’s vise, content-based became a bit like Candyman in the horror-film series of that name—its mere mention would vanquish the law. Over time, the idea grew that a law was content-based if it regulated speech on the basis that it had content—that is, if it was speech at all. If that is the law, there really can’t be any regulation of speech, no matter on what basis. Thus, for example, in a case called Reed v. Town of Gilbert, a regulation of roadside signs was struck down because it regulated “directional signs” differently from “election signs.” There are reasons to treat them differently—a directional sign might confuse drivers, while an election sign contains “core political speech.” But in an opinion by Justice Clarence Thomas, the majority said that a regulation was content-based unless it was “justified without reference to the content of the regulated speech.” Applied strictly, that rule would mean that no regulation of speech would be approved unless it applied equally to any noise or sound.
In a memorable analogy, the Brooklyn Law School professor William D. Araiza compared this new version of “content-based” to the alien seed pods in the classic science-fiction film Invasion of the Body Snatchers:
The resulting “pod people” are flat, one-dimensional versions of their hosts, in stark contrast to the fully rounded, nuanced human beings whose bodies they colonized … In recent years a similarly mindless attack on First Amendment common sense threatens to wreak havoc not just on First Amendment doctrine but on government’s ability to enact ordinary regulatory legislation that poses no threat to the values the Speech Clause seeks to protect. Just like the pod people in the movie, the reconstituted doctrine lacks the nuance and subtlety of the older doctrine that it threatens to kill and replace with a colorless one-dimensionality.
The Reed development set the stage for the challenge to the TCPA. The AAPC argued that the law was now content-based because it allowed some speakers to make robocalls but not others. The government responded that the TCPA was a valid protection of privacy, and that the debt-collection exemption was valid because it was not based on the content of the speech, but on the relationship between the caller and the person receiving the call.
This idea makes intuitive sense—the TCPA already allows calls to cellphones for emergency announcements by the government (tornado warnings, for example, can be blasted to every cellphone in the affected area), from doctors to their patients with appointment reminders or test results, and from businesses to customers who have agreed to receive them.
But it’s not entirely convincing, is it? The real problem with the exception is that, as my grandmother used to say, it’s tacky. Government is dealing itself a favored place in the regulation of calls, and then yielding that place to private enterprises trying to extract money from the phone’s owner. Under the contemporary definition of content-based, then, the debt-collection exception can’t survive, and the entire robocall ban could be called into question.
Thus, the AAPC argued that the TCPA must be struck down in its entirety. But the Fourth Circuit handed it a win it did not welcome—simply concluding that the debt exception was invalid, but that the rest of the statute (that is, as it had been for a quarter century before the debt exception was added) remained valid.
That wasn’t what the AAPC wanted at all. It wants no restrictions on cellphone robocalls—open season on our pockets, in essence. The rule it seeks could not even be fixed by Congress. It would be a permanent constitutional rule.
The government, defending a congressional statute, asked the Supreme Court to review the Fourth Circuit opinion and reinstate the law in full. But let’s not kid ourselves: That is pretty much a lost cause. So the government also asked the Court to approve the lower court’s “severance” of the debt exception.
Even though the AAPC was the “winner” below, it supported the government’s petition to reverse the Fourth Circuit. The AAPC, however, wanted the high court to strike down the entire statute.
“Severance” seems like a good solution; after all, the debt exception can’t be vital to the statute—the statute hummed along merrily without it from 1991 to 2014. In addition, the statute contains a clause proclaiming that if any part of it is struck down, the rest should remain in force.
The AAPC, however, argues that severability isn’t really an issue in this case. It is challenging the entire statute—since it allows some phone calls and not others, it is thus (under the new doctrine) content-based, the AAPC says: AAPC members “are not government-debt collectors; they care only about alleviating the TCPA’s abridgement of their own speech.”
This presents the Court with a dilemma. If any differentiation at all among categories of speech violates the First Amendment—if, as Kennedy believed, there is no way to balance the importance of that rule with other interests—then the AAPC is right. The First Amendment says we all have to field phone calls—dozens or maybe hundreds a day, to the point that our cellphones become useless. If the Court refuses to extend the new, rigid doctrine to robocalls, it will call into question the repeated preachments from the high bench that government can’t ban speech just because people don’t like it.
However, if it does strike down the robocall rule—well, as the southern saying goes, it will pretty much be running without opposition for the office of SOB.