Robocall ban stands, Supreme Court rules
The Supreme Court on Monday let a ban on unsolicited robocalls to cell phones stand, handing defeats to both political consultants and the debt collection industry.
A case brought by the American Association of Political Consultants argued that a sweeping ban on robocalls to cell phones, put in place by the Telephone Consumer Protection Act of 1991, was unconstitutional because of a carve-out added in 2015 that allowed for calls made to collect on a debt owed to or backed by the federal government.
The consultants argued that the carveout created a content-based restriction on speech, and the entire robocall ban should be tossed out because of it.
The Supreme Court rejected that argument, deciding that while the debt carveout was unconstitutional, the ban itself was not. The highest court in the nation severed the debt carveout but left the ban intact, meaning that neither political consultants nor debt collectors can make unsolicited robocalls to Americans’ cellphones.
“Americans passionately disagree about many things. But they are largely united in their disdain for robocalls,” Supreme Court Justice Brett Kavanuagh wrote in the court’s decision.
The court’s final ruling brought a complicated mix of justices together. Six justices agreed that the carveout was an impermissible content-based restriction, while seven agreed that the remedy should be severing the carveout for debt collectors instead of tossing out the entire ban. Only two justices, Neil Gorsuch and Clarence Thomas, would've voted to strike down the entire robocall ban.
Kavanaugh’s majority opinion left little room for an argument on if there was a content-based restriction on speech in the ban, due to the carveout for debt collectors.
“A robocall that says, ‘Please pay your government debt’ is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal,” the newest Supreme Court justice wrote. “That is about as content-based as it gets.”
The court’s decision to sever the debt-collection carveout, as opposed to striking down the entirety of the ban, can also serve as a hint for future decisions that challenge the constitutionality of a particular provision in a law as a means to throwing out the entire law.
“Put in common parlance, the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress),” Kavanaugh wrote. “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”
The TCPA allows for harsh penalties for entities that break the robocall ban, allowing private parties to sue for up to $1,500 per violation.
