On Monday July 6, 2020, the U.S. Supreme Court issued its long-awaited decision in Barr v. American Association of Political Consultants, Inc., in which a majority of the Court struck down and severed the 2015 Government Debt Exception (the Exception) to the 1991 Telephone Consumer Protection Act (TCPA) but held that the balance of the TCPA was constitutional.

First, as oral argument in May indicated, the Court was brief in striking down the Exception as unconstitutional.  A plurality of opinions found that the Exception was a content-based restriction that violated the First Amendment.  The majority opinion, authored by Justice Kavanaugh and joined by Chief Justice Roberts, Justice Alito, and Justice Thomas, found the government’s arguments that the Exception was not content-based unpersuasive, but, instead, relied upon the Exception’s text, drawing a distinction based on the message a speaker is permitted to convey: “A robocall that says, ‘Please pay your government debt’ is legal.  A robocall that says ‘Please donate to our political campaign’ is illegal.  Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”  Given that the government conceded that it could not satisfy strict scrutiny for a content-based restriction, the majority struck down the Exception as unconstitutional.

In addition to the majority opinion, Justice Sotomayor wrote separately to add that, though the government need not meet strict scrutiny, the government nevertheless failed to satisfy intermediate scrutiny.  Justice Gorsuch also agreed with this portion of the majority opinion’s analysis.

Second, the majority opinion concluded that the Exception must be severed from the TCPA rather than declaring the entire statute unconstitutional, for two reasons.  First, the Exception and the TCPA fall under the Communications Act of 1934, which has a severability clause.  Second, even if the Communications Act severability clause did not apply, the presumption of severability applies where the TCPA could function adequately and independently as it did prior to 2015.

Perhaps most central to the severability analysis is how striking down the Exception provides relief for the plaintiffs in AAPC.  Though the majority opinion acknowledges that the plaintiffs seek to make phone calls, it focuses the relief on whether the plaintiffs are receiving equal treatment with those who make government debt calls.  Because striking down the Exception puts the plaintiffs in the same position as government debt callers with respect to the TCPA, severing the Exception is a form of providing plaintiffs relief.  Though Justices Breyer, Ginsburg, and Kagan dissented and would find that the Exception does not violate the First Amendment, they concurred in the judgment that the Exception is severable from the TCPA.

Justice Gorsuch, joined by Justice Thomas, wrote separately to opine that, because the Exception allows for “a seemingly infinite number of robocalls[,]” and because the TCPA unconstitutionally infringes on Plaintiffs’ speech, they would bar enforcement of the TCPA rather than sever the Exception.  Justice Gorsuch’s opinion is primarily grounded in the fact that the severance remedy fails to give the plaintiffs relief while harming strangers to the suit.

So, there you have it.  The Supreme Court took a scalpel to the TCPA rather than hit it with a hammer.  And if you use the phone to communicate with consumers, customers, donors, or others, you should make sure that your TCPA compliance processes are up to snuff.  At $500 to $1,500 per call or text message in violation of the TCPA, learning about the TCPA and what it requires after a lawsuit is filed can be a very expensive lesson indeed.