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.”
Garrett Epps: The important First Amendment principle now at risk
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.”