Barr v. American Association of Political Consultants
US Supreme Court
This case concerns the constitutionality of an exemption to the autodialer ban in the Telephone Consumer Protection Act (“TCPA”). The TCPA prohibits use of an “automated telephone dialing system” to call an individual’s phone without prior authorization. Since its enactment in 1991, courts have consistently held that the TCPA’s autodialer rules are constitutional. But several groups have recently challenged the constitutionality of an exemption to the autodialer ban that Congress passed in 2015. The 2015 TCPA Amendment permits robocalls made by government debt collectors.
In this case, a group of political consultants and polling organizations challenged the law on First Amendment grounds. The district court held that the TCPA, as amended, is constitutional under the First Amendment despite the new content-based exemption. The challengers appealed to the Fourth Circuit, which held that the amendment was not constitutional and should be severed from the TCPA. The United States filed a Petition for a Writ of Certiorari, and the Supreme Court agreed to consider “Whether the government-debt exemption to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exemption from the remainder of the statute.”
EPIC filed an amicus brief in a similar case in the Ninth Circuit, Gallion v. Charter Communications, which agreed with the Fourth Circuit and severed the 2015 exemption from the autodialer ban.
In 1991, Congress enacted the TCPA to protect individuals from unwanted calls and faxes. Among the law’s prohibitions is a ban on using “any automated telephone dialing system.” The autodialer ban originally contained two exemptions: (1) calls made “for emergency purposes,” and (2) calls made with “the prior express consent of the called party.” The law also gave the FCC authority to promulgate additional exemptions. Calls made by the federal government are also not barred.
In 2015, Congress added a third statutory exemption to the autodialer ban for calls “made solely to collect a debt owed to or guaranteed by the United States.”
Restrictions on free speech are subject to different levels of scrutiny depending on the type or aspect of speech they target. Restrictions targeting commercial speech have historically had to meet a lower standard than restrictions on “core” speech on issues of political or societal interest. More recently, the U.S. Supreme Court has applied what is called “strict scrutiny”—the highest level of constitutional scrutiny—even to commercial speech that discriminates between speakers or the content of a communication, such as in Sorrell v. IMS Health. This standard requires the restriction to be narrowly tailored to a compelling government interest—that is, the government must be able to point to some important government goal, such as protecting consumers from the privacy invasion of robocalls, and the restriction must actually serve that purpose by, e.g., not exempting acts that undermine the restriction’s purpose, or banning acts that do not further the purpose. Additionally, the Government must not be able to effectively accomplish its goal with an alternative rule that restricts less speech. Restrictions that do not distinguish between speakers—referred to as “content-neutral” restrictions—are subject to a lower standard than content-based restrictions. Generally, content-neutral restrictions on the time, place, and manner in which speech can occur are allowed as long as there are adequate alternative means of expression available.
Courts have consistently held that the pre-amended autodialer prohibition is a content-neutral time, place, and manner restriction that comports with the First Amendment.
District Court for the Eastern District of North Carolina
A group of political and polling organizations that wish to use autodialer technology, led by the American Association of Political Consultants, sued the Government to challenge the constitutionality of the autodialer ban. The groups claimed that the ban was a content-based restriction on speech, warranting the court’s highest scrutiny, because the government debt exemption and FCC regulatory exemptions favor commercial speech over core political speech. The Government countered that the government debt exemption focused on the relationship between caller and recipient, not on the content of the call, and so should not be subject to strict scrutiny. Alternatively, the Government argued that the exemption met the highest standard because it was narrowly tailored to a compelling government purpose: facilitating repayment of millions of dollars in debts to the federal government.
The court agreed with the Government that the government debt exemption was constitutional under strict scrutiny. The court determined that the Government had a compelling interest in exempting calls to collect government-backed debt, and that the exemption did not undermine the privacy interests the TCPA was meant to protect. The court further found that jurisdictional barriers prevented it from considering the constitutionality of the FCC exemptions, and that the general delegation from Congress to make exemptions was “not facially or inherently content-based.” Finally, the court concluded that the autodialer ban did not needlessly encompass more speech than necessary, and that less restrictive means, such as time-of-day limitations, mandatory disclosures, and do-not-call lists would not be as effective in protecting privacy.
U.S. Court of Appeals for the Fourth Circuit
On appeal, the political groups argued that the government debt exemption does not further a compelling government interest, and even if it did, the exemption did not do so by the least restrictive means. The political groups also argued that severance of the exemption—that is, striking down the exemption and leaving the rest of the ban in place—was not a permissible remedy because an unconstitutional restriction on speech could not be fixed by restricting even more speech. The Government again argued that the exemption was content-neutral, and otherwise passed strict scrutiny. If the court were to find the exemption unconstitutional, the Government advocated for severance because the autodialer ban had been in effect long before the exemption was added.
The Fourth Circuit agreed with the district court that the government debt exemption was content-based. However, the court found that the exemption did not pass strict scrutiny, and severed the provision from the statute. The court concluded that the exemption was “fatally underinclusive” for two reasons: (1) the exemption “subverts the privacy protections underlying the ban” by authorizing potentially millions of intrusive calls, and (2) calls to collect a debt are “among the most intrusive, disruptive, and complained of phone calls.” As for whether to sever the exemption, the court found that “the explicit directives of the Supreme Court and Congress strongly support a severance of the debt-collection exemption from the automated call ban” and “the ban can operate effectively in the absence of the debt-collection exemption, which is clearly an outlier among the statutory exemptions.”
U.S. Supreme Court
On November 14, 2019, the U.S. Solicitor General filed a Petition for a Writ of Certiorari in the U.S. Supreme Court, requesting that the Court review the Fourth Circuit’s opinion and address the question of “Whether the government-debt exemption to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exemption from the remainder of the statute.” The Court granted certiorari on January 10, 2020.
EPIC has a general interest in defending privacy statutes from First Amendment attacks, as well as a specific interest in preserving the TCPA’s protections.
First Amendment Attacks on Privacy Statutes
As a major advocate of comprehensive federal privacy legislation, EPIC has an important role to play in ensuring that the First Amendment cannot be used as a weapon against privacy statutes.
EPIC has previously defended a privacy statute from a First Amendment challenge in the U.S. Supreme Court. Sorrell v. IMS Health also concerned a purportedly underinclusive privacy statute. The law prohibited pharmacies from providing prescriber-identifying data to third parties that would use the information to market brand-name drugs to health care providers. EPIC submitted an amicus brief supporting the Government’s compelling interest by explaining the importance of medical privacy and the inadequacy of deidentification techniques data mining companies use. The Court ultimately found that the narrow target of the speech restriction, and the many exemptions, rendered the privacy provision underinclusive, and that a more privacy-protective statute might have withstood strict scrutiny.
EPIC has a strong interest in upholding the TCPA’s privacy protections. EPIC contributed to the formation of the TCPA, and has since worked to ensure that telephone users are protected from invasive calling practices.
EPIC has filed many “friend of the court” briefs in important TCPA cases, including a case similar to the one now before the Court. In Gallion v. Charter Communications, EPIC argued that the TCPA’s protections were needed now more than ever, citing to empirical evidence that the robocall scourge has only gotten worse since the introduction of cell phones. EPIC urged that, even if the government debt exemption was unconstitutional, the Ninth Circuit should preserve the general autodialer ban.
Additionally, in Gadelhak v. AT&T Services, EPIC urged the Seventh Circuit to recognize that the TCPA prohibits autodialed calls made from a list of numbers, not just calls made to random numbers. In PDR Network v. Carlton & Harris Chiropractic, EPIC urged the Supreme Court not to give TCPA defendants the right to challenge FCC rules outside the agency process and the appeal procedure Congress established. In ACA International v. FCC, EPIC and other consumer privacy organizations urged the FCC to protect consumers from unwanted and invasive robocalls made using an autodialer and prerecorded voice, in direct violation of the TCPA. Further, EPIC argued that companies, not consumers, should bear the burden of complying with the TCPA because the TCPA was enacted as a consumer-centric statute.
EPIC has also testified in Congress and submitted statements in support of the TCPA’s protections. In addition, EPIC has submitted numerous comments to the FCC and FTC concerning the implementation of the TCPA. For example, in June 2018, EPIC submitted comments to the FCC regarding the Commission’s proceedings after ACA International. In the comment, EPIC urged the FCC to define “called party” under the TCPA. EPIC also encouraged the FCC to establish a three-pronged way for callers to “facilitate the revocation of consent by called parties:” (1) let parties know they have the right to revoke consent, (2) give consumers an easy way to revoke consent, (3) quickly follow through with the revocation of consent.
U.S. Supreme Court, (No. 19-631)
- Petition Stage
- United States’ Petition for Writ of Certiorari (Nov. 14, 2019)
- Brief of Respondents in Support (Dec. 4, 2019)
- Reply Brief of Petitioners (Dec. 18, 2019)
- Merits Stage
- Petitioners’ Brief on the Merits (Feb. 24, 2020)
- Amicus Briefs in Support of Petitioners
- Amicus Brief of the Electronic Privacy Information Center (Mar. 2, 2020)
- Amicus Brief of Fifteen Members of Congress (Mar. 2, 2020)
- Amicus Brief of Public Citizen (Mar. 2, 2020)
- Amicus Brief of the National League of Cities and others (Mar. 2, 2020)
- Amicus Brief of 33 States (Mar. 2, 2020)
- Amicus Brief of the Student Loan Servicing Alliance (Mar. 2, 2020)
- Amicus Briefs in Support of Neither Party
- Brief of Respondents American Association of Political Consultants and others (Mar. 25, 2020)
- Amicus Briefs in Support of Respondent
- Amicus Brief of Institute for Free Speech (Apr. 1, 2020)
- Amicus Brief of the Institute for Justice (Apr. 1, 2020)
- Amicus Brief of Portfolio Recovery Associates, LLC (Apr. 1, 2020)
- Amicus Brief for Health Care Companies (Apr. 1, 2020)
- Amicus Brief of Facebook (Apr. 1, 2020)
- Amicus Brief of Cato Institute (Apr. 1, 2020)
- Amicus Brief of the Chamber of Commerce (Apr. 1, 2020)
- Amicus Brief of Midlands Management (Apr. 1, 2020)
- Reply Brief of the United States (Apr. 24, 2020)
- Oral Argument (May 6, 2020)
- Opinion (July 6, 2020)
U.S. Court of Appeals for the Fourth Circuit, 923 F.3d 159 (4th Cir. 2019) (No. 18-1588)
- Opinion (Apr. 24, 2019)
- Oral Argument (Dec. 12, 2018)
- Government Brief (Aug. 23, 2018)
- Appellant AAPC’s Opening Brief (July 3, 2018)
U.S. District Court for the Eastern District of North Carolina (No. 5:16-CV-252-D)
- Summary Judgment Order (March 24, 2018)
- Motion to Dismiss Order (March 15, 2017)
- Complaint (August 9, 2016)
- EPIC Amicus: Gallion v. Charter Communications
- EPIC Amicus: Gadelhak v. AT&T Services
- EPIC Amicus: PDR Network v. Carlton & Harris Chiropractic
- EPIC Amicus: ACA International v. FCC
- EPIC: Telemarketing and the Telephone Consumer Protection Act (TCPA)
- EPIC: Do-Not-Call Registry (archived)
- EPIC: Illegal Sale of Phone Records
- FCC 2015 Declaratory Ruling and Order In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991
- National Do-Not-Call Registry
- Garrett Epps, The Supreme Court Could Use the First Amendment to Unleash a Robocall Nightmare, The Atlantic (May 6, 2020)
- Jon Reid, Anti-Robocall Law Exemption Faces Test in Supreme Court Argument, Bloomberg Law (May 5, 2020)
- Allison Grande, How The High Court Could Reshape The TCPA’s Future, Law360 (Jan. 16, 2020)
- Zach Montellaro, Supreme Court to Hear Challenge to Auto-dialing Ban, Politico (Jan. 13, 2020)
- Andrew C. Glass, Gregory N. Blasé, Christopher J. Valente, Michael R. Creta, Elma Delic, District Court Finds no Violation on First Amendment in TCPA Suit Brought by Coalition of Bi-Partisan Political Organizations, Nat’l Law Rev (Apr. 9, 2018)
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