Courthouse Steps Decision: The Limits of Robocalls, Barr v. American Association of Political Consultants, Inc.

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Nick Marr:  Welcome to The Federalist Society's teleforum conference call. This afternoon will be a Courthouse Steps Decision teleforum titled “The Limits of Robocalls: Barr v. American Association of Political Consultants.” My name is Nick Marr, and I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Professor Michael Dimino, Professor of Law at Widener University Commonwealth Law School. After our speaker gives his opening remarks, we will then go to audience Q&A. Thanks for sharing with us today. Professor, the floor is yours.

 

Prof. Michael Dimino:  Thank you. And thanks to all of you for being on the call. Thanks to The Federalist Society for hosting it. It’s a pleasure to discuss the case and to participate in this forum.

 

      I want to proceed in a few different steps. First, I want to explain what the case was about. And then second, I want to go into a little bit of detail on what the Court’s holding was because it’s a little bit more complicated than the usual one, given the justices’ breakdown. And then third, I’m going to examine the law a little bit and give you an opportunity to ask questions.

 

      So first, what was this case about? I figured that most of you who are on the call would not be on the call if you weren’t already somewhat familiar with the case. So my description of the facts is going to be somewhat superficial. The case involves a limitation in the telephone consumer protection law that, generally speaking, prohibits robocalls, prohibits recorded computerized messages, automatic dialing, to cell phones with a couple of exceptions. Most of those exceptions are not at issue in the case, but one recent one is.

 

      The law was originally passed in 1991, and in its first 25 years, it had exceptions for emergency calls where the recipient of the call had consented to receive the messages. A few years ago, 2015, however, Congress added a new exception, and it allowed robocalls where those calls were made solely for the purpose of collecting on a government provided debt or government backed debt. So if you took out a loan from the government or if the government was ultimately behind your loan, maybe you had a mortgage, you thought it was through a private company or you had a student loan you thought was through a private company but it’s ultimately backed by the government, it was okay under this amendment to the law for a robocall to call you to remind you to pay your loan.

     

      The people who are challenging this law objected to that 2015 amendment. They are the Association of American Political Consultants. They are a group of political consultants, strategists, pollsters, and the like. They wanted to make robocalls for political purposes, survey people, or for whatever else. There’s no question, no question at all that their speech was political and therefore within the core of the First Amendment’s protection. But it was nonetheless prohibited by this amendment to the statute because it wasn’t an emergency call, people hadn’t consented in advance to receive it, and it was not a call made to collect on a government debt.

 

      So the association sued and said, “We’re being discriminated against. We should be able to make these calls. The law allows certain kinds of robocalls and disallows our calls because of a difference in the content of the calls. If we wanted to make a call that said please pay your debt, that call would be allowed. But since we want to make a call that says who are you going to vote for in November, that’s disallowed.”

 

      And what the association said was that the First Amendment prohibits this kind of content-based discrimination, allowing some speech and disallowing other speech because of differences in the content of the speech. That’s the content-based discrimination, and as a general matter, that’s unconstitutional.

 

      To be a little more specific, the Court has held for quite a long time, about half a century, that content-based distinctions for laws regulating speech trigger strict scrutiny. And as you’ll remember from constitutional law, strict scrutiny requires that the government have a compelling interest and adopt a law that is narrowly tailored to the achievement of that interest.

 

      That’s a very high standard, very difficult for the government to meet. And it should be. The government’s ability to privilege certain speech with certain content and ban other speech with other content is -- that’s a very big threat to First Amendment values. And so the Supreme Court has said in case after case over this very long time that if the government is going to do that, then it should have to demonstrate a real necessity for doing it.

 

      And the association said, “Well, the government can’t satisfy that standard here. And so this content-based discrimination is unconstitutional. The government should not be able to stop us from making robocalls because we are not going to say the approved messages.”

 

      So what did the Supreme Court say when they got the case? The plurality opinion by Justice Kavanaugh agreed with that part of the challenger’s argument, but not with all of it. And the plurality did not give the challengers the remedy they wanted. So the first thing I’m going to talk about in terms of the Court’s conclusion is the standard of scrutiny that the Court adopted. And then I’m going to talk about the Court’s final conclusion about whether there was a First Amendment violation or not. And then I’m going to talk about the remedy.

 

      So the first question, well, the standard of scrutiny applies. As I said, the Court has applied strict scrutiny to content-based discriminations in many cases in the past. The plurality says that strict scrutiny is appropriate here, but the Court was 5-4 on this point. Somewhat surprisingly, only the so-called conservatives on the Court -- Kavanaugh wrote the plurality opinion, and Roberts, Thomas, Alito, and Gorsuch also agreed that strict scrutiny was applicable to evaluate this content-based distinction.

 

      The other four justices, the so-called liberals, concluded that an intermediate scrutiny should apply. The lead opinion on this point was written by Justice Breyer, and he said that it’s -- we should not apply strict scrutiny reflexively to all content-based discrimination on speech or all content-based distinctions with regard to speech. And he said, consistent with his general jurisprudential philosophy and consistent with the major precedent in this case, which is a case called Reed v. Town of Gilbert, Breyer said we should look at First Amendment values. What’s the First Amendment generally trying to do, trying to protect? And we should see whether this law jeopardizes those values.

 

      To put that in more concrete terms, what Justice Breyer said is that the First Amendment is designed to make sure that the government doesn’t manipulate the marketplace of ideas, that it’s not trying to suppress certain kinds of ideas, certain kinds of ideologies, not trying to control political debate, or that sort of thing. And he said if that’s what the government’s trying to do, then by all means, apply strict scrutiny and apply a presumption that the government’s regulation of speech is unconstitutional.

 

      But, he said, where that seems implausible, where the government’s rationale seems far more neutral in this kind of case, he said, where the government seems more to be regulating commercial conduct, debt collection, rather than regulating speech for its communicative value, then that presumption of unconstitutionality is out of place. And he said here there’s no reason to think that the exception that Congress wrote into this law for government debt collection, there’s no reason to think that that was an attempt to manipulate politics or manipulate the marketplace of ideas or anything like that. And so he says even though this law is content based and even though it does regulate speech, we should apply intermediate scrutiny.

 

      If it were adopted by the Court, that would be a rather significant change from current doctrine. The Court has generally applied strict scrutiny to all content-based distinctions on speech, and the Reed case from a few terms ago is the clearest expression of that, but by no means it is the only one.

 

      And his approach would give a very large amount of discretion to the courts to try to figure out whether the government was regulating speech for a good purpose or a bad purpose, for a speech restrictive purpose or a commercial regulatory purpose, or however the test would have shaken out over succeeding cases. But there were only four votes for that. The majority stuck with the preexisting law and said that strict scrutiny applies to content-based restrictions on speech. So that part of the decision was 5-4.

 

      Then the next step is to figure out, well, applying that standard, is the content-based distinction in this law, the exception for collection on a government debt, is that constitutional? And by a 6-3 vote, the Court concluded that it was not constitutional. All five justices who applied strict scrutiny held that strict scrutiny was not satisfied here. The government did not have a compelling interest in prohibiting all robocalls except for the collection of government debt. And that was a pretty easy case. In fact, the government conceded that if strict scrutiny applied that it did not meet strict scrutiny.

 

      The sixth vote was from Justice Sotomayor who said that she agreed with Justice Breyer that intermediate scrutiny should apply, but the government didn’t meet the standard of intermediate scrutiny either, that the government didn’t have much of an interest at all in favoring the collection of government debt, in favoring calls about the collection of government debt, as opposed to the challenger’s political speech. And so she also concluded that the restriction was unconstitutional, this content-based restriction on speech was unconstitutional.

 

      The other three, Justice Breyer joined by Justice Ginsburg and Justice Kagan, they concluded that intermediate scrutiny should apply and the intermediate scrutiny standard was met, that the collection of government debt was sufficiently different from any kind of concern about the suppression of speech and the interests of protecting the public from harassing robocalls was sufficiently important to meet the standard of intermediate scrutiny. So on the question of whether the exception for robocalls about collecting government debt was constitutional, the Court says it’s not by a vote of 6-3.

 

      The final question was what to do about it. And this is a tricky kind of problem because what the -- there are two ways to go with this once you conclude that the exception is unconstitutional. What the challengers wanted was an injunction prohibiting the government from enforcing the robocall ban against them. So that would have given them what they wanted. It would have opened up this speech. It would have said that these people can’t have their speech penalized by a content-based distinction. And so we’re invalidating the content-based distinction and letting them speak.

 

      The problem with that is that we could also treat their speech the same as everybody else’s. That is, we could get rid of the content-based distinction by getting rid of the exception for the collection of government debt. That is, if we just banned robocalls across the board, we wouldn’t be making any content-based distinction. The constitutional problem would be solved. We’d be returning the law to the form that it had prior to the 2015 amendment. So for the previous 25 years, this is what the law did. It pretty much flatly banned robocalls. We’d just be brining it back to that. There would be no content-based distinction. The constitutional problem would be solved.

     

      But the challengers said, “Well, that’s not fair to us. Why would we or someone in our position go through all the trouble of bringing this case challenging a content-based distinction if at the end you’re going to impose a remedy that does nothing for us? It doesn’t let us make the speech that we want. Sure, it treats us the same as everybody else now by getting rid of somebody else’s exception, but it doesn’t give us what we want. There’d be no way that we would invest the time or resources to bring this challenge if we ended up winning and not getting what we wanted.”

 

      So it’s the ultimate good news/bad news situation when you look at this from the perspective of the political consultants. And the good news is that the Court agreed with you that the law was unconstitutional. The bad news is that you still can’t speak because the remedy was simply to ban robocalls across the board.

 

      So how does the Court come out on this question? Should we open up the speech, should we enjoin the operation in the statute, or should we eliminate the exception? And by a 7-2 vote in this matter, the Court severed the unconstitutional exception and applied the robocall ban across the board. And this is how the case was reported in the news, the 45 second summary of the case is that the Supreme Court upholds the ban on robocalls. Even though the exception discriminated against certain kinds of speech based on content, the ban persists because the Court was willing to say that we can solve the ban by -- or solve the unconstitutional problem by just applying the robocall ban without regard to content and applying it to everyone.

 

      So the vote on that was, as I say, 7-2. The plurality, Kavanaugh joined by Roberts and Alito on this point, they concluded that the proper remedy was to sever the unconstitutional exception. And they were joined in this conclusion by the four liberals, Breyer, Ginsburg, Sotomayor, and Kagan. That makes up the seven justice majority in favor of severing the unconstitutional part.

 

      Thomas and Gorsuch were on the other side, and they said that this statute is unconstitutional because it makes a content-based distinction that cannot satisfy strict scrutiny, and that the proper remedy for that is to give the speakers an injunction. And if Congress wants to rewrite the statute and apply a robocall ban across the board, well then, Congress can do that later.

 

      The response of the plurality to the Gorsuch opinion was that in the short term, at least, that would produce a political result that nobody, or at least nobody in Congress, wanted. If the Gorsuch opinion won, then robocalls would be allowed. The overall ban on robocalls would have been struck down, and robocalls could have been used until Congress passed a new statute.

 

      In the short term, that would have been very unpopular. Most people don’t like receiving robocalls. And it seems reasonably clear, at least it was clear to the plurality, that if Congress had to choose between not having any robocall ban at all and having one that applied across the board that they would choose the one that applied across the board. They would have the robocall ban that they had in place for 25 years before that that banned all robocalls except for the emergency calls and calls that the recipient had consented to receive.

 

      So the Court says, “Let’s go back to that rule. That was fine for everybody. That didn’t create a content-based distinction. People were happy because robocalls were banned. And there’s no First Amendment problem because we’re not discriminating against certain kinds of speech based on its content.” So that’s the upshot of the case, and I’m happy to take any questions that you may have.

 

Nick Marr:  Great. Let’s go to audience questions now. And Professor, I’ll just get us started here to let our listeners have time to come up with their questions. So you mentioned that one of the issues between the majority and Gorsuch and Thomas is the legislative intent or basically some consideration thereof. And to what extent to you think should legislative intent play, especially in free speech cases? And how has that factored in maybe in the past, and how do you see it factoring in in the future, if this case has shaped that at all?

 

Prof. Michael Dimino:  Sure. The question of what has been called in this case severability is a difficult one. And the law, generally speaking with respect to severability, forces the Court to engage in a kind of hypothetical analysis of legislative intent. The way that I phrased the question a couple of minutes ago that if Congress had to choose between a law that didn’t have the unconstitutional portion and no law at all, what would it have chosen?

 

      That’s a really tough question, at least in some circumstances. The Court in this case, at least the plurality in this case, didn’t think that it had -- that it was really difficult here. But in the abstract, it’s a really difficult question because it’s counterfactual. You don’t know what the Court -- or what Congress would have passed if it were presented with those two stark options.

 

      Now, Justice Gorsuch said, “Well, that’s such a difficult question that we should get out of that business, that we should rethink the whole idea of severability, and we should instead just adopt the presumption that when we declare something unconstitutional that the proper remedy is to grant an injunction prohibiting the enforcement of that unconstitutional law.” In a First Amendment case, there was then this separation of powers element to it that got kind of low billing. It was the very last thing that Gorsuch, in the last opinion of the case, discussed.

 

      But it is a significant question. What the Court does here is it strikes down a provision that nobody really challenged. Now, you can quibble about semantics here, but what the challengers wanted is they wanted to be able to speak. They wanted to be able to make their political robocalls. They didn’t really care whether the people collecting a government debt were able to make their robocalls or not. What the Court does is say, “You’re right that this distinction is unconstitutional, but the remedy for it is to give you something you didn’t ask for, to take away the speech of someone else, someone who is not before the Court, someone who is not a party to this case.”

 

      And so the Court rewrites this statute in a way that does not help the party before it who had challenged the statute. And that’s really weird. I don't know that it’s completely unprecedented. Certainly, the Court, as it demonstrated, has the power to do it. But Gorsuch said, “Boy, if this is the consequence of the Court’s severability jurisprudence, then we need to rethink that.” Now, he had only two votes, so the rest of the Court was more accepting of it. And so I’m not -- I don't think that there’s much of an attitude on the part of the Court to reexamine these kinds of questions.

 

      Now, who knows in the future? Maybe there’s -- maybe in a case where we don’t have this kind of weird split of opinion, maybe it’s more likely that we’d get the fuller examination of this question.

 

Nick Marr:  Great, thanks. In an effort to give our callers a chance to line up in the queue, I’ll ask another question, if I may, Professor, about scrutiny, if you could talk a little bit about the use of scrutiny here, the disagreements about scrutiny and what it means between Breyer and other judges who are writing, and what you think it means for future use, especially in free speech cases.

 

Prof. Michael Dimino:  Thank you. Yeah, there’s -- this is quite an interesting subject because there’s divisions not only between Breyer and the majority, but also one that I skipped over in the interest of time between Gorsuch and the rest of the majority. The Breyer distinction is a bigger one, but tiers of scrutiny that we’re used to from constitutional law are -- there were two, and now there seem to be three. And in some areas of the law, there seem to be four.

 

      But we’ve had strict scrutiny for quite a long time. That’s what requires the government to have a compelling interest and requires the law to be narrowly tailored to the achievement of that interest. At the other side is rational basis, which says that the challenger will lose, the law will be upheld, unless the challenger can show that there is no rational basis for the law, that there isn’t a legitimate interest being served by the law or that the law doesn’t bear even a rational relationship to that interest.

 

      In practice, strict scrutiny tends to be almost a per se rule of invalidity and rational basis seems almost to be a per se rule of validity; that is, the law is almost always struck down under strict scrutiny and almost always upheld under rational basis scrutiny. And those two results put a little bit of validity to constitutional doctrine that if you can have some predictability about how cases are going to come out, since we know that strict scrutiny is really strong and rational basis is really weak.

 

      Justice Breyer is not thrilled with that approach because it seems to lock judges into reaching certain kinds of results in certain cases. So he says, “Why shouldn’t we engage in a more contextual, more fine tuned kind of analysis? And instead of just asking whether there’s a content-based distinction and therefore strict scrutiny applies, why don’t we give judges more discretion and say, ‘Do you think First Amendment values are threatened by this law?’ And the more that they’re threatened by the law, well, then the stricter the scrutiny should be.”

 

      Other justices who are more inclined toward rules rather than standards find this approach disturbing, precisely because it gives judges this extra discretion that we can’t guarantee or even predict with much certainty whether a law will be upheld or struck down because there will be more question marks about how a judge will assess the law and how well the judge thinks the law is tailored to the First Amendment values of protecting the marketplace of ideas and a free exchange of dialogue about ideology and those kinds of things.

 

      In fact, the people who studied the First Amendment have been debating for decades what the purpose of free speech is. And so if we were to adopt Justice Breyer’s formulation, it would cause even more problems than I indicated before because he focuses only on a subset of the values that are protected by free speech. He focuses on the marketplace of ideas, but he doesn’t focus, for example, on other interests that at least some scholars have thought served by free speech, things like the value of individual self-expression or self-realization, even the interest in self-governance that tends to be talked a lot about. Meiklejohn’s theory was big and influential in this respect.

 

      But the point is that there is a variety of different kinds of values that are protected by free speech. And if Justice Breyer wants to leave it up to judges to figure out how much First Amendment values are threatened by a law in any individual case, well, then it’s going to be up to the judge to figure out what First Amendment values he or she wants to focus on. And that will create a lot of uncertainty. So the uncertainty that Justice Breyer wants by applying intermediate scrutiny, which itself is flexible, is compounded by the flexibility that he has in deciding when his intermediate scrutiny will be triggered.

     

      Now, there’s also a difference, as I alluded to before, between the way that Justice Gorsuch and the way that the plurality applies the strict scrutiny. Gorsuch says that the exception that was built into this law for the collection of government debt undermined the supposed government interest in the privacy of the recipients of the calls. And the government says, “Why do we need one of these bans on robocalls because people hate getting robocalls. They interrupt our dinner, they wake us up, they cause us all this harassment. So we should ban robocalls.”

 

      Gorsuch says, “Well, if you really think that that’s all that important, then you wouldn’t have built an exception into that. You wouldn’t have said that we generally hate these harassing robocalls except when we’re calling to collect a government debt, and then harassment is okay.” So he says that the government does not have a compelling interest in protecting privacy of people with cell phones because the government itself was willing to undermine that interest to achieve the value of protecting government revenue.

 

      The plurality instead says that this interest in protecting the privacy of people with cell phones is important, and the exceptions are small enough that they don’t really undermine the value. So the government can say that, generally speaking, robocalls are banned. We are going to protect your privacy for the most part, but we have a really important interest in making sure that we collect money that is owed to us. And so we can create an exception to that without undermining strict scrutiny. That’s the difference between the plurality and Justice Gorsuch on that point, but both of them end up concluding that in this case, strict scrutiny is appropriate, and the strict scrutiny has failed.

 

Nick Marr:  Great. Thank you, professor. It looks like we don’t have any questions at this time. I’ll give you a chance for some closing remarks if you’d like.

 

Prof. Michael Dimino:  All right. Well, again, I want to thank you and The Federalist Society and the audience for the opportunity to discuss this important case. In Reed v. Town of Gilbert a few terms ago, the Court said that it’s a content-based distinction on speech to allow certain kinds of speech with certain kinds of messages and to disallow other kinds of speech based on the content of the speech; that is, if political speech is treated differently from directional signs, if political speech in this case is treated differently from debt collection, well, then we’re distinguishing between different kinds of speech, privileging certain kinds of speech based on the content of that speech. And that triggers strict scrutiny. That’s what Reed v. Town of Gilbert held. This case, in that respect, is not exceptional in that it simply applies that Reed rule.

 

      The interesting thing, the difficult thing about this case, if we were just applying prior law, is the severability point. That’s the point that divides Thomas and Gorsuch on the one hand from the rest of the Court on the other.

 

      The radical change would be, and probably the most disturbing part of the case, is that four justices were willing to say that even though we have content-based discrimination against speech here that strict scrutiny should not apply because those individual justices didn’t think that the First Amendment values were threatened by the government’s law. That would be a very significant change. Certainly, it would require overruling the Reed case, and Justice Breyer’s failure to discuss stare decisis is certainly curious in that regard.

 

      It would be a large change. It would make it much more difficult to apply the law and would ultimately be much less protective of speech. If the Court could apply a looser, more flexible test to allow government restrictions based on the content of the speech whenever a judge found that First Amendment values were not sufficiently threatened by the law, I think that that doctrine would be a problem for free speech protections that we value under the First Amendment.

 

      So thanks very much to you and The Federalist Society and everybody who’s listening.

 

Nick Marr:  Professor, in the interim, we did receive a question if you’d like to take it.

 

Prof. Michael Dimino:  Sure, that’s fine.

 

Caller 1:  Thank you. I appreciate the discussion here. And you sort of hinted at the answer to my question, but I was wondering whether this is the first time that we’ve had four justices who would join Justice Breyer in his values-based approach to interpreting the Constitution?

 

Prof. Michael Dimino:  Well, I suppose it depends on how broadly you want to -- or how many different areas of constitutional law you want to include within your question. I can point to some cases where we have majorities, majority opinions written by Justice Breyer that adopt that kind of philosophy. So particularly, his approach in separation of powers cases are exactly in that line.

 

      Take, for example, his opinion in the Noel Canning case, the recess appointments clause case from a couple of terms ago, where he concludes that the appointment of certain members of the NLRB was unconstitutional because there wasn’t a sufficiently long recess of the Senate. Well, the whole -- his discussion of the case was it’s unconstitutional because it interferes with these kinds of values, that it’s a very contextual analysis for him. And Justice Scalia who wrote the concurrence in the judgement was much more rule-like and said this is unconstitutional because here are the rules. You have to follow this, this, and this, and you didn’t do it.

 

      In terms of free speech law, there -- I don't know that this is the only case where we’ve had four justices who have signed on to this kind of contextual reading. I don't think that it’s terribly novel. Certainly, the Reed case was one that was very much like this. Breyer dissented in Reed, and the so-called liberals joined him there also.

 

      We also see it in, I think -- other than Reed, I think the best analogy to your point is the abortion protest cases where the Court has sometimes permitted restrictions on protest speech if the Court thinks that the values served by the restrictions on speech are appropriately considerate of other constitutional values. So you have cases, even that get a majority, cases like Hill v. Colorado where the Court was willing to uphold those restrictions to more modern cases like McCullen v. Coakley that struck down a restriction on abortion protests in an opinion by Chief Justice Roberts, but where you get this significant attitude from the left wing of the Court that says that the approach to regulating speech should be more freewheeling and more flexible.

 

      The people who are nervous about courts regulating speech like the security of rules. People who are more comfortable with judges are more comfortable with judicial discretion. And given the politics of our time, it happens to be -- it wasn’t always this way, but it happens to be now that conservatives are more distrustful of judges and favor rules for that reason, whereas the liberals tend to be more comfortable with judicial discretion and more willing to give judges the power to decide whether to protect free speech in a given instance or not.

 

Caller 1:  Thank you.

 

Nick Marr:  Great. Well, we don’t have any questions at this time. And Professor, if you don’t have any more closing remarks to add…

 

Prof. Michael Dimino:  No, no, that’s all right. Thank you very much.

 

Nick Marr:  All right, we’ll close out. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. And keep an eye out for emails announcing upcoming teleforum calls. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.