Today the U.S. Supreme Court heard arguments in a case that may have drastic implications for all of us. In Barr v. AAPC, the justices are considering whether the Telephone Consumer Protection Act (TCPA) is unconstitutional. If the Court strikes down this law, it will thwart the government’s already inadequate efforts to protect us from phone spam. Telemarketers, debt collectors, and political groups will be allowed to robocall our cell phones with few restrictions, while those making fraudulent calls will be almost impossible to punish.
I am the author of Telephone Terrorism: The Story of Robocalls and the TCPA, so numerous reporters have called me today seeking my comment on the case. At least, I assume they have called me. I really don’t know for sure, because my phone has a robocall filter that blocks all calls from unfamiliar phone numbers. Rather than respond to each inquiry individually, I’ll post my analysis here.
The TCPA has been with us since 1991, and most of the concerns about its constitutionality have faded long ago. So how did we get to today’s debacle? In 2015, a controversial provision was mysteriously added to the Bipartisan Budget Act. It carved out an exception to the TCPA, allowing robocalls to be used to collect debts that are owed to the federal government. No one knows where this provision came from or who was responsible for it. It angered many members of Congress. Nonetheless, this was one of those must-pass bills. If the Bipartisan Budget Act wasn’t approved, it would be time to close up shop after 200+ years of having a constitutional republic. Maybe the Queen would let us rejoin the Empire, if we were lucky, but Congress didn’t want to take the chance. The Act was signed into law.
The dubious exemption meant that the TCPA was no longer content-neutral. In layman’s terms, it was “unfair.” An organization of political consultants decided to challenge the law as a violation of the First Amendment. If collectors of government debt can make unwanted robocalls, they argued, then everyone else should be permitted to as well. It’s the type of argument you might hear from a six-year-old. (“Why does Billy get to stay home alone and I don’t?” “Well, dear, Billy doesn’t melt Legos in the oven like you do.”) However, the courts usually try to be fair when it comes to applying the First Amendment. Hate groups, pornographers, and even the makers of idiotic political robocalls all have a right to complain when they are singled out for restrictions on their speech.
The political robocallers have their work cut out for them, because they must climb two separate hurdles. First, they have to convince the Supreme Court that the exemption for government debt collectors is truly unfair. That’s the easy part. Several lower courts have already agreed with them on that. Next, they need to explain why the entire TCPA should be cast aside because of this unfairness. The lower courts thought it would be far more sensible to remove the exemption and punish the collectors’ robocalls the same as any others. This would allow the TCPA to operate just as fairly as it did prior to the vandalism of 2015.
But the Supreme Court tends to prefer precedent to sensibility, and there isn’t a strong precedent that will guide them. That’s why today’s oral argument (conducted remotely via a telephone conference) was of great interest to the legal community. The Court will be blazing a new First Amendment trail—and they might be blazing it right through all of our cell phones.
The justices’ questions at oral argument can often give a hint of which way they are leaning, and neither the liberals nor the conservatives had many kind words for the 2015 exemption. Justice Breyer—who is so often the pragmatic man in the middle—came the closest to defending it. He analogized it to SEC and FTC regulations that touch on commercial speech. These rules are full of exceptions, exceptions to the exceptions, and counter-exceptions to all of the above. If the Court starts striking down every rule that might be unfair to some types of speech, there’s no telling where it will end. But Breyer acknowledged that his views were rejected by the Court’s majority in the last content-neutrality case, so why should anyone care what he thinks?
The bulk of the debate centered on what the Court should do about the unfairness that was introduced by the exemption. The attorney for the political robocallers, Roman Martinez, tried to convince the justices that the entire TCPA must be struck down. Chief Justice Roberts replied that Congress would never take that approach, because it “is an extremely popular law.” It was an inauspicious start to Martinez’s presentation, but then something even more inauspicious happened: one of the justices flushed a toilet while he was speaking. CNN dubbed it “The Flush Heard Around the Country.” Counsel’s careful dissertation was overshadowed by the rude scatological sound.
Of course, this isn’t the first time that matters of the bathroom have found their way into the Court’s proceedings. One is reminded of the landmark 1979 case In re Whipple, in which a grocer sought an injunction against the thoughtless shoppers who routinely damaged his merchandise by squeezing the toilet tissue. The Court ruled that squeezing, caressing, or otherwise manipulating a personal hygiene product is permitted by the Dormant Commerce Clause. Denied of a legal remedy, the harried Mr. Whipple was forced to burn his store for the insurance money.
Toilets aside, the Court must decide how to fix Congress’ First Amendment screw-up while staying true to the lawmakers’ intent. For a look at Congress’ current state of mind, consider its near-unanimous passage of the TRACED Act in late 2019. This law demands more rigorous enforcement of the TCPA, and prescribes new forms of torture that will be meted out to violators. Like the original 1991 law, it is overwhelmingly popular with the American people. Should we throw out the TCPA—and hence also the TRACED Act—because some anonymous coward stuck an unconstitutional exemption into an appropriations bill in 2015? That’s what the political consultants are advocating.
Sensing that this argument was not gaining much traction, Martinez offered another one. He asserted that the TCPA’s cell phone robocall ban is unconstitutional, with or without the 2015 exemption. He claimed that consumers have an insufficient privacy interest in their cell phones to justify such a strict law. This drew a surprised reaction from Justice Kavanaugh, who suggested Martinez was arguing against “common sense.” The questioning ended on this exchange, leaving the political robocallers in a precarious position.
That doesn’t mean that the TCPA is completely out of danger, however, because the case presents a conundrum. Most observers would agree that the 2015 exemption is a malodorous pile of rubbish. But invalidating the exemption will hurt debt collectors who are working on behalf of the government, and they weren’t even a party to the case. Should their supposed First Amendment rights suffer just so that the law doesn’t discriminate against someone else? Or is the only “fair” resolution to strike down the entire TCPA, and throw the citizenry to the wolves?
But Justice Gorsuch’s questioning of the government’s attorney suggested another possibility. He noted that the plaintiffs—the political robocallers—never asked for the debt collection exemption to be invalidated, and may even lack standing to do so. It was the lower courts that came up with this remedy in the interest of treating everyone’s annoying robocalls equally. So maybe the Court can simply overturn the lower court rulings, and keep both the TCPA and its questionable exception in place until someone challenges the latter more directly. This would be consistent with how Congress, the FCC, and many courts have dealt with other TCPA ambiguities over the years: kick the can down the road to be dealt with another day.
For more background see: