BREAKING – Supreme Court Severs Government-Debt Exception From TCPA


By: Matt Foree

Yesterday, the Supreme Court of the United States issued its decision in Barr vs American Association of Political Consultants, Inc. As we reported earlier here, this case deals with the constitutionality of the government-debt exception to the Telephone Consumer Protection Act (“TCPA”). In a 2015 amendment to the TCPA, Congress exempted from the robocall prohibition calls “made solely to collect a debt owed to or guaranteed by the United States.” The Supreme Court decision, in an opinion written by Justice Kavanaugh, determined that the government-debt exception (the “Exception”) is unconstitutional and severed it from the statute.

In analyzing the Exception, the court first looked at the question of whether the robocall restriction, with the Exception, is content-based. The Court found that, under the TCPA, the constitutionality of a robocall turns on whether it is made solely to collect a debt owed to or guaranteed by the United States. The Court noted that a robocall that says “Please pay your government debt” is legal while a robocall that says “Please donate to our political campaign” is illegal. According to the Court, “[t]hat is about as content-based as it gets.” Because the law favors speech made for collecting government debt over political and other speech, the Court found that the law is a content-based restriction on speech. Accordingly, under the Court’s precedents, a law that is content-based is subject to strict scrutiny. The Government conceded that it could not satisfy strict scrutiny to justify the Exception and the Court agreed.

The Court then considered whether to invalidate the entire robocall restriction under the TCPA or instead invalidate and sever the Exception. The Court agreed with the Government that it must invalidate the Exception and sever it from the remainder of the statute. In doing so, the Court reviewed general severability principles. Among other things, the Court determined that its precedents have steered it to a presumption of severability. As Justice Kavanaugh stated, “Applying the presumption, the Court invalidates and severs unconstitutional provisions from the remainder of the law rather than razing whole statutes or Acts of Congress.  Put in common parlance, the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress).” The Court further stated that “[c]onstitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statue to take down the whole, otherwise constitutional statute.”

The Court then noted that before severing a provision and leaving the remainder of a law intact, the Court must determine that the remainder of the statute is capable of functioning independently and will be fully operative as a law. The Court noted that the Communications Act of 1934, to which the TCPA is an amendment, includes an express severability clause stating, “If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby.” The Court held that the Exception added an unconstitutional, discriminatory exception to the robocall restriction of the TCPA. It further determined that the text of the severability clause squarely covers the unconstitutional Exception and requires severance. The Court held that even if the text of the severability clause did not apply here, the presumption of severability would require that the Court sever the Exception from the remainder of the statute.

In sum, the Court held that by carving out an exception that allowed robocalls made to collect government debt, Congress favored debt-collection speech over plaintiff’s political speech. Accordingly, the Court held that the Exception was unconstitutional and cured the violation by invalidating the Exception and severing it from the remainder of the TCPA.

The Supreme Court’s long-awaited decision lays to rest speculation that the Court would strike down the entire statute as unconstitutional.  As such, it appears that litigation will continue, with several issues outstanding concerning the troubled statute, including the ongoing issue with the patchwork of decisions related to the requirements of an “automatic telephone dialing system” under the TCPA. Only time will tell if these and other issues will be remedied in the near future. 

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