Barr v. American Assn. of Political Consultants, Inc.

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins as to Part II, concurring in the judgment in part and dissenting in part.¶

I agree with JUSTICE KAVANAUGH that the provision of the Telephone Consumer Protection Act before us violates the First Amendment. Respectfully, however, I disagree about why that is so and what remedial consequences should follow.¶

I¶

The TCPA is full of regulations on robocalls. The statute limits robocalls to residential landlines, hospitals, emergency numbers, and business lines. The only provision before us today, however, concerns robocalls to cell phones, mobile devices, or “any service for which the called party is charged for the call.” 47 U. S. C. §227(b)(1)(A)(iii). Before the law’s enactment, many cell phone users had to pay for each call, so they suffered not only the pleasure of robocalls, but also the privilege of paying for them. In 1991, Congress sought to address the problem by banning nearly all unsolicited robocalls to cell phones.¶

But much has changed since then. Now, cell phone users often pay a flat monthly fee for unlimited minutes, reducing the cost (if not the annoyance) of hearing from robocallers.¶

New weapons in the fight against robocallers have emerged, too—including tools that allow consumers to more easily screen and block unwanted calls. Perhaps in recognition of these changes, Congress relaxed the ban on cellphone robocallers in 2015. Today, unsolicited calls are permitted if they are “made solely to collect a debt owed to or guaranteed by the United States.”¶

That leaves robocallers no shortage of material. The government backs millions upon millions of loans—student loans, home mortgages, veterans’ loans, farm loans, business loans. When it comes to student loans alone, the government guarantees more than $150 billion in private loans involving over 7 million individuals. And, to be clear, it’s not just the government that’s allowed to call about these loans. Private lenders and debt collectors are free to send in the robots too, so long as the debt at issue is ultimately guaranteed by the government.¶

Today’s plaintiffs wish to use robocalls for something different: to campaign and solicit donations for political causes. The plaintiffs allege that the law’s continuing ban on calls like theirs violates the First Amendment, and on the main points of their argument the parties agree. First, no one doubts the TCPA regulates speech. Second, everyone accepts that restrictions on speech—no matter how evenhanded—must be justified by at least a ''significant governmental interest.'' Ward v. Rock Against Racism , 491 U. S. 781, 791 (1989). And, third, the parties agree that laws that go further by regulating speech on the basis of content invite still greater scrutiny. When the government seeks to censor speech based on its content, favoring certain voices and punishing others, its restrictions must satisfy “strict scrutiny”—meaning they must be justified by interests that are “compelling,” not just significant. After all, a constitutional right would hardly be needed to protect popular speakers; the First Amendment does its real work in giving voice to those a majority would silence. See McCullen v. Coakley , 573 U. S. 464, 477–478 (2014); but see ante, at 5–6 (BREYER, J., concurring in judgment with respect to severability and dissenting in part) (seeking to overturn precedent and allow the government sometimes to impose content-based restrictions to “respon[d] to the public will”).¶

In my view, the TCPA’s rule against cellphone robocalls is a content-based restriction that fails strict scrutiny. The statute is content-based because it allows speech on a subject the government favors (collecting its debts) while banning speech on other disfavored subjects (including political matters). Cf. ante, at 9–11 (opinion of BREYER, J.) (mistakenly characterizing the content discrimination as “not about” political activities). The statute fails strict scrutiny because the government offers no compelling justification for its prohibition against the plaintiffs’ political speech. In fact, the government does not dispute that, if strict scrutiny applies, its law must fall.¶

It’s easy enough to see why the government makes no effort to satisfy strict scrutiny. Now that most cell phone plans do not charge by the call, the only justification the government cites for its robocall ban is its interest in protecting consumer privacy. No one questions that protecting consumer privacy qualifies as a legitimate and “genuine” interest for the government to pursue. Ante, at 2–3, 10. But before the government may censor the plaintiffs’ speech based on its content, it must point to a compelling interest. And if the government thinks consumer privacy interests are insufficient to overcome its interest in collecting debts, it’s hard to see how the government might invoke consumer privacy interests to justify banning private political speech. Especially when consumers seem to find debt collection efforts particularly intrusive: Year after year, the Federal Trade Commission receives more complaints about the debt collection industry than any other. The nature and breadth of the law’s exception calls into question the necessity of its rule.¶

Much precedent supports this course. As this Court has long explained, a law’s failure to address a wide swath of conduct implicating its supposed concern “diminish[es] the credibility of the government’s [stated] rationale for [its] restrict[ion].” City of Ladue v. Gilleo , 512 U. S. 43, 52 (1994). Or, as the Court has elsewhere put it, the compellingness of the government’s putative interest is undermined when its law “leaves appreciable damage to [the] supposedly vital interest unprohibited.” Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 547 (1993) (internal quotation marks omitted); see also Gonzales v. O Centro Espírita Beneficente União do Vegetal , 546 U. S. 418, 433 (2006). The insight is simple: A law’s failure to cover “significant tracts of conduct implicating [its] putatively compelling interes[t] can raise . . . the inference that the . . . claimed interest isn’t . . . so compelling after all.” Yellowbear v. Lampert , 741 F. 3d 48, 60 (CA10 2014).¶

That’s not to say the inference is irrebuttable. The government might, for example, show that the apparent inconsistency in its law is justified by some qualitative or quantitative difference between the speech it favors and the speech it disfavors. See id., at 61. So if debt collection robocalls were less invasive of consumer privacy than other kinds of robocalls, or if they were inherently rare, an exception permitting debt collection calls might not undermine the government’s claimed interest in banning other calls. But the government, a party with every incentive and ample resources, has not even tried to suggest conditions like those are present here, and understandably so: The government-debt exception allows a seemingly infinite number of robocalls of the type consumers appear to find most invasive.¶

II¶

With a First Amendment violation proven, the question turns to remedy. Because the challenged robocall ban unconstitutionally infringes on their speech, I would hold that the plaintiffs are entitled to an injunction preventing its enforcement against them. This is the traditional remedy for proven violations of legal rights likely to work irreparable injury in the future. Preventing the law’s enforcement against the plaintiffs would fully address their injury. And going this far, but no further, would avoid “short circuit[ing] the democratic process” by interfering with the work of Congress any more than necessary. Washington State Grange v. Washington State Republican Party , 552 U. S. 442, 451 (2008).¶

JUSTICE KAVANAUGH’s opinion pursues a different course. Invoking “severability doctrine,” it declares the government-debt exception void and severs it from the statute. As revised by today’s decision, the law prohibits nearly all robocalls to cell phones, just as it did back in 1991. In support of this remedy, we are asked to consider cases involving equal protection violations, where courts have sometimes solved the problem of unequal treatment by leveling others “down” to the plaintiff ’s status rather than by leveling the plaintiff “up” to the status others enjoy.¶

I am doubtful of our authority to rewrite the law in this way. Many have questioned the propriety of modern severability doctrine,* and today’s case illustrates some of the reasons why. To start, it’s hard to see how today’s use of severability doctrine qualifies as a remedy at all: The plaintiffs have not challenged the government-debt exception, they have not sought to have it severed and stricken, and far from placing “unequal treatment” at the “heart of their¶

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*See, e.g ., Seila Law LLC v. Consumer Financial Protection Bureau , ante , at 14–24 (THOMAS, J., concurring in part and dissenting in part); Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56 (2014); see also Movsesian, Severability in Statutes and Contracts, 30 Ga. L. Rev. 41, 41–42 (1995) (collecting academic criticism of severability doctrine).¶

suit,” they have never complained of unequal treatment as such. Ante, at 23. The plaintiffs point to the governmentdebt exception only to show that the government lacks a compelling interest in restricting their speech. It isn’t even clear the plaintiffs would have standing to challenge the government-debt exception. They came to court asserting a right to speak, not a right to be free from other speakers. Severing and voiding the government-debt exception does nothing to address the injury they claim; after today’s ruling, federal law bars the plaintiffs from using robocalls to promote political causes just as stoutly as it did before. What is the point of fighting this long battle, through many years and all the way to the Supreme Court, if the prize for winning is no relief at all?¶

A severance remedy not only fails to help the plaintiffs, it harms strangers to this suit. Just five years ago, Congress expressly authorized robocalls to cell phones to collect government-backed debts. Yet, today, the Court reverses that decision and outlaws the entire industry. It is highly unusual for judges to render unlawful conduct that Congress has explicitly made lawful—let alone to take such an extraordinary step without warning to those who have ordered their lives and livelihoods in reliance on the law, and without affording those individuals any opportunity to be heard. This assertion of power strikes me as raising serious separation of powers questions, and it marks no small departure from our usual reliance on the adversarial process.¶

Nor does the analogy to equal protection doctrine solve the problem. That doctrine promises equality of treatment, whatever that treatment may be. The First Amendment isn’t so neutral. It pushes, always, in one direction: against governmental restrictions on speech. Yet, somehow, in the name of vindicating the First Amendment, our remedial course today leads to the unlikely result that not a single person will be allowed to speak more freely and, instead, more speech will be banned.¶

In an effort to mitigate at least some of these problems, JUSTICE KAVANAUGH suggests that the ban on governmentdebt collection calls announced today might be applied only prospectively. See ante , at 22, n. 13. But prospective decisionmaking has never been easy to square with the judicial power. See, e.g., James B. Beam Distilling Co. v. Georgia , 501 U. S. 529, 548–549 (Scalia, J., concurring in judgment) (judicial power is limited to “discerning what the law is , rather than decreeing . . . what it will tomorrow be”). And a holding that shields only government-debt collection callers from past liability under an admittedly unconstitutional law would wind up endorsing the very same kind of content discrimination we say we are seeking to eliminate.¶

Unable to solve the problems associated with its preferred severance remedy, today’s decision seeks at least to identify “harm[s]” associated with mine. Cf. ante , at 24 (opinion of KAVANAUGH, J.). In particular, we are reminded that granting an injunction in this case would allow the plaintiffs’ (unpopular) speech, and that could induce others to seek injunctions of their own, resulting in still more (unpopular) speech. But this “harm” is hardly comparable to the problems associated with using severability doctrine: Having to tolerate unwanted speech imposes no cognizable constitutional injury on anyone; it is life under the First Amendment, which is almost always invoked to protect speech some would rather not hear.¶

*¶

In the end, I agree that 47 U. S. C. §227(b)(1)(A)(iii) violates the First Amendment, though not for the reasons JUSTICE KAVANAUGH offers. Nor am I able to support the remedy the Court endorses today. Respectfully, if this is what modern “severability doctrine” has become, it seems to me all the more reason to reconsider our course.¶