Today the Supreme Court issued its ruling in AAPC v. Barr, in which the constitutionality of the Telephone Consumer Protection Act (TCPA) was at stake. The outcome was highly unusual: both of the parties to the case lost. It was a big win for everyone else, however, as the Court upheld the TCPA. Robocalls to cell phones will still be illegal.
Although seven of the nine justices agreed that the TCPA was constitutional, their thinking was as varied as the colors on a toucan. The case yielded four separate opinions, and you practically need Jeffrey Toobin just to figure out if any of them are legally binding:
Justice Kavanaugh, joined by The Chief Justice, Justice Alito, and his Brewski Buds P.J. and Squee, delivered an opinion, in which Justice Thomas joins as to Subsection 3(a) and the 4th footnote on page 14. Justice Breyer filed an opinion concurring in part, dissenting in part, and complaining in part, in which Justices Ginsburg and Kagan reluctantly joined. Justice Sotomayor filed an opinion that follows the same logic as Breyer’s but somehow winds up with the same conclusion as Kavanaugh’s. Justice Kennedy filed an opinion even though he retired two years ago and it technically doesn’t count. He was just trying to renew his Golf Digest subscription, but sent the form here by mistake and someone published it. Justice Gorsuch concurs with Kennedy that receiving 12 issues for 60% off the cover price is quite a deal.
After all of that, the net effect was to simply reaffirm what the lower courts have already said about the TCPA. I am relieved that I don’t have to rewrite my book, but not everyone agrees with the result. Defense lawyer Eric Troutman called it “a dark day for free speech” on his TCPA World blog.
I always enjoy reading Eric’s musings, because his perspective is so different from mine. However, I disagree that the TCPA is a danger to the First Amendment. For the most part, the law doesn’t ban speech—even unpopular and unwanted speech. Do you want to call and tell me to vote for your candidate in the upcoming papal election, or donate to the National Laryngitis Foundation, or join a secret society that advocates the elimination of Mother’s Day? The TCPA allows it. It even permits debt collection calls from the fine folks at Allied National Receivables Interstate Recovery Bureau, regarding the $43 electricity bill that your neighbor’s ex-girlfriend’s hairdresser failed to pay in 1988. To find speech that is less desirable than that, you’d have to look at your racist uncle’s Facebook page.
What the TCPA does not allow is the abuse of technology to create noise that drowns out other people’s free speech. You are not supposed to hook up a robot dialer to the telephone grid and blast out thousands of unsolicited calls (or texts). If your message about “an urgent personal business matter” is important enough to interrupt me when I’m shampooing my pet iguana, or emceeing a pumpkin-throwing contest at the county fair, then it’s important enough for you to pick up the phone and dial it yourself. With today’s ruling, the Supreme Court has reinforced a basic principle that has sometimes been forgotten in its other First Amendment opinions: The marketplace of ideas should reward speech based on its merit, not by who uses the biggest megaphone.