Yesterday, the Supreme Court heard oral argument (by telephone) in Barr v. American Association of Political Consultants, a case that centers on the constitutionality of the Telephone Consumer Protection Act (TCPA), and, more specifically, the prohibition on transmitting automated calls or texts to mobile telephone numbers without prior express consent.  Given the litigious environment surrounding the TCPA, the case has important potential implications for businesses that communicate with consumers in this manner.  A transcript of the argument is available here, and a recording is available here.

The TCPA, as originally enacted in 1991, restricts the use of an automatic telephone dialing system (ATDS) to transmit calls or texts to mobile numbers without the recipient’s prior express consent (the ATDS prohibition).  In 2015, the TCPA was amended to exempt from the ATDS prohibition calls made to collect a debt owed to the United States (the government-debt exception).  The question before the Supreme Court is whether the government-debt exception is unconstitutional and, if so, whether the proper remedy is to sever the exception—leaving intact the rest of the TCPA—or invalidate the entire ATDS prohibition.

The plaintiffs are political consultants and organizations that seek to transmit calls or text messages using an ATDS but have taken the position that they cannot do so effectively because of the ATDS prohibition.  They argue that the ATDS prohibition is a content-based speech prohibition that violates the First Amendment.  In contrast, the government argues that neither the government-debt exception nor the ATDS prohibition itself is a content-based restriction on speech, and thus both the exception and the prohibition pass constitutional muster.  The government also argues that even if the government-debt exception is unconstitutional, the correct remedy is to sever the exception and strike down only that provision, while leaving the rest of the ATDS prohibition in place.

The court of appeals agreed with the plaintiffs that the government-debt exception is an unconstitutional content-based restriction on speech, but it severed the exception, leaving intact the rest of the TCPA.  This meant that the plaintiffs still could not use an ATDS to transmit calls or text messages without prior express consent because the ATDS prohibition remained in place.

At yesterday’s oral argument, the justices seemed to focus principally on the severability question, noting the perverse result of remedying a First Amendment violation by leaving intact—and effectively expanding—a speech prohibition.  On the other hand, several justices expressed doubt that Congress would have preferred to have in place no ATDS prohibition at all, rather than an ATDS prohibition without the government-debt exception.

As to the underlying First Amendment dispute, the justices appeared split.  Some appeared to view the government debt-exception as content-based, which would mean it likely is unconstitutional.  Other justices expressed concern that such an outcome could render unconstitutional many kinds of economic regulations.  These differing perspectives could result in a split decision in which no single rationale commands majority support.