By Lisa Soronen
What does Barr v. American Association of Political Consultants have to do with state and local governments?
The question the U.S. Supreme Court will decide in this case is whether allowing robocalls for government debt only violates the First Amendment. State and local governments aren’t likely recipients of such calls.
In one word, the answer is Reed; as in Reed v. Town of Gilbert (2015). In Reed, the Supreme Court held that strict (usually fatal) scrutiny applies to content-based restrictions on speech, and the court defined "content-based" broadly. In short, Reed was a bad decision for state and local governments, which regularly regulate content-based speech.
The Telephone Consumer Protection Act (TCPA) prohibits automatic dialing or prerecorded calls to cellphones with three exceptions—emergencies, consent, and debt collection owed to or guaranteed by the United States. The American Association of Political Consultants claims the third exception violates the First Amendment.
Applying Reed v. Town of Gilbert, the 4th Circuit concluded that this exception is content-based because “automated calls made to cell phones that deal with other subjects — such as efforts to collect a debt neither owed to nor guaranteed by the United States — do not qualify for the debt-collection exemption and are prohibited by the automated call ban.”
The court then held that the debt-collection exception fails to survive strict scrutiny because it is “fatally underinclusive for two related reasons. First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions.”
In its petition asking the Supreme Court to hear this case, the United States first argues that the government-debt exception isn’t content-based because “it depends on the call’s economic purpose (i.e., whether the call is ‘made solely to collect a debt’), and on the existence of a specified economic relationship with the federal government (i.e., whether the debt is ‘owed to or guaranteed by the United States’).”
The United States next argues that if strict scrutiny applies the exception passes it because it “advances a distinct and significant government interest in protecting the public fisc. Estimates provided to Congress suggested that the exception could save the federal government $120 million over 10 years.”
It is odd the Supreme Court agreed to hear this case as there is no circuit split over whether this exception is constitutional. Likewise, the 4th Circuit’s application of Reed seems faithful to the court’s opinion. It is at least possible that the court has agreed to hear this case to limit Reed. Reed dealt with a sign ordinance, but courts have applied it to strike down numerous ordinances and statutes on a variety of topics—including this seemingly harmless federal statute.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.