On Wednesday May 6, 2020 the Supreme Court heard oral argument in Barr v. American Association of Political Consultants, Inc., a case that will answer whether the government debt exception (“the Exception”) to the Telephone Consumer Protection Act (“TCPA”), which allows for government-backed debt collection calls to be placed to cell phones via autodialer without the prior express consent of the debtor, is unconstitutional under the First Amendment. If the answer is yes, then the Court will also decide whether the Exception—passed in 2015—is severable from the rest of the TCPA—passed in 1991. A toilet flushing was heard during Justice Kagan’s questioning of AAPC’s counsel—not figuratively, but literally. Does this flushing foreshadow the fate of the TCPA? We likely will see in the next few months when a decision is expected.
Though the Government began oral argument by maintaining that the Exception is not content- based, it appeared that a majority of the Court did not agree. Justices Ginsburg, Sotomayor, and Kavanaugh each questioned the Deputy Solicitor General about the Government’s ability to meet its strict scrutiny burden, indicating that they have trouble avoiding the conclusion that the Exception isn’t content-based. Further, Justices Roberts, Thomas, Alito, and Gorsuch bypassed questioning the Government on the constitutionality question (Justice Gorsuch began his questioning by stating, “I think the government debt exception is almost certainly content-based”), but, instead, focused on whether the Exception is severable from the TCPA. The Government proffered two arguments in defense of severability: (1) that striking down the entirety of the TCPA because of the Exception is akin to the “tail wagging the dog,” and (2) that the temporal sequence of the TCPA predating the Exception indicates that the exception can be severed.
The Court’s questioning of AAPC confirmed its interest in exploring whether the Exception is severable from the rest of the TCPA. At the outset, Justice Roberts indicated that the Government’s “temporal sequence” argument is strong in light of the fact that the TCPA is an extremely popular law, nearing its 30th anniversary, and suggested that striking down the whole TCPA because of a 2015 exception is divorced from Congress’s intentions. But popularity is not the litmus test for the constitutionality of a statute. AAPC’s contention during oral argument was that the privacy interest rationale for the TCPA when it was enacted in 1991—Congress was concerned about intrusive invasions of privacy into the home when it enacted the TCPA—was undermined by the Exception, suggesting that the privacy rationale no longer exists as it did in 1991, and therefore the whole statute is unconstitutional. In other words, by allowing autodialed calls to cell phones seeking to collect government-backed debt collection but prohibiting virtually all other types of autodialed calls to cell phones (both telemarketing and non-telemarketing), Congress demonstrated that any privacy concerns about autodialed calls to mobile numbers are minimal and not what the TCPA was designed to prevent when it was enacted.
In light of the Justices’ focus on whether the Exception is severable from the TCPA, the TCPA may be headed down the toilet. We anticipate an opinion will be issued in the coming months before the end of the Court’s term, so be sure to check in then for a more thorough analysis of the opinion. If nothing else, depending on your bent, it may make for some good bathroom reading.