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.