William P. Barr, Attorney General, et al. v. American Association of Political Consultants, No. 19-631. Petition for Certiorari granted January 8, 2020.
The near-universal adoption of cell phone telephony thirty years ago ushered in a new era of liberation from landline tethers, but not of freedom from unsolicited, unwanted, and not infrequently noisome automated calls and messages. Called (among other things) robo-calls, the perceived nuisance of such practices by telemarketers and others prompted Congress to enact the 1991 Telephone Consumer Protection Act, Pub. L. No. 102-243, 105 Stat. 2394.
The TCPA prohibits calling cell phones without consent absent an emergency. This gesture of federal consideration of individual interests has spawned a cavalcade of lawsuits challenging its meaning, including the instant case, in which certiorari was granted to determine whether an exception to the act which permits calls to collect a federal or federally guaranteed debt violates the First Amendment Free Speech Clause.
The Fourth Circuit, in an opinion issued in April, 2019 perceived that the TCPA and its government debt exception created constitutionally unacceptable content based restrictions but did not conclude that the entire statute was invalid, determining only that the federal debt exception ought to be severed and the rest of the statute left intact.
The federal government asserts that there is no First Amendment violation, as strict scrutiny analysis does not apply where the economic purpose of a federal debt call is grounded in the relationship between the federal government and a debtor and where the privacy protections foundational to the TCPA remain intact. Government speech not constrained by the First Amendment, should not be hamstrung by imposing the highest level of constitutional scrutiny where in essence commercial speech, subject only to limited review, is in issue.
The federal government argues that severability is wholly appropriate as the entire statute need not be done away with in order to address an exception to its general applicability.
The American Association of Political Consultants’ views are diametrically opposed on both grounds. The group asserts that it defies reason to classify debt collection calls as “purpose” based where the content of such calls is grounded in satisfying a debt. Where calls linked to federal debts are permitted and those linked to private debts are not, this, the association advocates, makes a distinction based on the content of calls.
It cannot be that severability is apt where the Fourth Circuit found the statute to be unconstitutional, the political consultants submit. Severing an exception to an unconstitutional statute works no remedy, they argue.
A scheduling order has not yet been published. There are two other petitions for certiorari pending in on related issues for which no action has been taken.