Barr v. American Association of Political Consultants Inc.

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Barr v. American Association of Political Consultants Inc.
Term: 2019
Important Dates
Argument: May 6, 2020
Decided July 6, 2020
Outcome
Affirmed
Vote
6-3
Majority
Brett Kavanaugh • Chief Justice John G. Roberts • Clarence Thomas (Parts I, II) • Samuel Alito
Concurring
Clarence Thomas (in part) • Stephen Breyer (in part) • Ruth Bader Ginsburg (in part) • Sonia Sotomayor • Elena Kagan (in part) • Neil Gorsuch (in part)
Dissenting
Clarence Thomas (in part) • Stephen Breyer (in part) • Ruth Bader Ginsburg (in part) • Elena Kagan (in part) • Neil Gorsuch (in part)

## Contents

* 1 Timeline
* 2 Background
* 3 Questions presented
* 4 Outcome
* 4.1 Opinion
* 4.2 Concurring opinion
* 4.2.1 Justice Breyer
* 4.2.2 Justice Sotomayor
* 4.2.3 Justice Gorsuch
* 4.3 Dissenting opinion
* 4.3.1 Justice Breyer
* 4.3.2 Justice Gorsuch
* 4.4 Text of the opinion
* 5 Oral argument
* 5.1 Audio
* 5.2 Transcript
* 6 See also
* 7 External links
* 8 Footnotes

Barr v. American Association of Political Consultants Inc. is a case that was argued before the Supreme Court of the United States on May 6, 2020, during the court's October 2019-2020 term. The case came on a writ of certiorari to the United States Court of Appeals for the 4th Circuit.[1]

Oral argument for Barr v. American Association of Political Consultants Inc. was initially scheduled for April 22, 2020. However, the U.S. Supreme Court announced on April 3 that it was postponing the eight oral arguments originally scheduled during its April sitting. In a press release, the court said the delay was "in keeping with public health guidance in response to COVID-19."[2] COVID-19 is the abbreviation for coronavirus disease 2019. On April 15, the court announced it had rescheduled the case's oral argument for May 6, 2020.

The court affirmed the decision of the United States Court of Appeals for the 4th Circuit in a 6-3 opinion, holding that the 2015 government-debt exception to the 1991 federal ban on robocalls to cell phones added an unconstitutional exception to the law and that the exception is severable from the remainder of the statute.[3] Click here for more information about the ruling.

HIGHLIGHTS

* The case: In 2016, the American Association of Political Consultants, Inc. and three other plaintiffs initiated litigation in district court against the U.S. government challenging the constitutionality of the automated call ban's debt-collection exemption, citing the free speech clause of the First Amendment. The plaintiffs and the U.S. government each moved for summary judgment. The district court awarded summary judgment to the U.S. government, denied the plaintiffs' motion, and rejected the plaintiffs' First Amendment challenge. On appeal, the 4th Circuit vacated the district court's award of summary judgment to the U.S. government, ordered that the exemption be severed from the automated call ban, and remanded the case for further proceedings.

* The issue: Whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.[4]

* The outcome: The U.S. Supreme Court affirmed the 4th Circuit's judgment in a 6-3 vote, holding that the 2015 government-debt exception to the 1991 federal ban on robocalls to cell phones added an unconstitutional exception to the law and that the exception is severable from the remainder of the statute.[3] Justice Brett Kavanaugh delivered the majority opinion of the court.

You can review the lower court's opinion here.[5]

## Timeline[edit]

The following timeline details key events in this case:

* July 6, 2020: The U.S. Supreme Court affirmed the judgment of the United States Court of Appeals for the 4th Circuit in a 6-3 ruling.
* May 6, 2020: Oral argument.
* April 3, 2020: The U.S. Supreme Court postponed its April sitting. Oral argument in Barr v. American Association of Political Consultants Inc. was initially scheduled for April 22, 2020.
* January 10, 2020: The U.S. Supreme Court agreed to hear the case.
* November 14, 2019: United States Attorney General William Barr and the Federal Communications Commission filed a petition with the U.S. Supreme Court.
* April 24, 2019: The United States Court of Appeals for the 4th Circuit vacated the district court's summary judgment in favor of the U.S. Government, directed the severance of the government-debt exception from the rest of the automated call ban, and remanded the case for further proceedings.

## Background[edit]

In May 2016, the American Association of Political Consultants, Inc. and three other plaintiffs filed a claim against the U.S. government in the U.S. District Court for the Eastern District of North Carolina, arguing that one of the statutory exemptions to the Telephone Consumer Protection Act of 1991 (TCPA) violated the free speech clause of the First Amendment.[5] The exemption to the statute, established in 2015, allowed automated calls relating to collecting debts owed to or guaranteed by the federal government, otherwise known as the government-debt exception or debt-collection exemption. The plaintiffs alleged that the exemption violated their right to free speech on the basis that the ban was content-based and did not satisfy strict scrutiny review, that the permitted automated calls were unconstitutionally favored, and that the free speech aspect of the debt-collection exemption was not severable from the automated call ban which would make the entire ban unconstitutional.[5][6]

In 2017, the plaintiffs and the U.S. government each filed motions for summary judgment in district court. On March 26, 2018, the court denied the plaintiffs' motion for summary judgment and granted summary judgment to the U.S. government. Concurrently, the court rejected the plaintiffs' free speech clause challenge.[5]

On April 24, 2019, the United States Court of Appeals for the 4th Circuit vacated the district court's grant of summary judgment in favor of the U.S. government, directed the severance of the debt-collection exemption from the remainder of the automated call ban, and remanded the case for further proceedings.[5]

## Questions presented[edit]

The petitioner presented the following questions to the court:

Questions presented:

* Whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.[4]

## Outcome[edit]

In a 6-3 vote, the court affirmed the judgment of the United States Court of Appeals for the 4th Circuit, holding that the 2015 government debt exception to the 1991 federal ban on robocalls to cell phones added an unconstitutional exception to the law and that the exception is severable from the remainder of the statute.[3]

Justice Brett Kavanaugh delivered the opinion of the court, in which Chief Justice John Roberts and Justice Samuel Alito joined, and in which Justice Clarence Thomas joined as to Parts I and II. Justice Sonia Sotomayor filed a concurring opinion. Justice Stephen Breyer filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Justices Ruth Bader Ginsburg and Elena Kagan joined. Justice Neil Gorsuch filed an opinion concurring in the judgment in part and dissenting in part, in which Justice Clarence Thomas joined as to Part II.[3]

### Opinion[edit]

In his opinion, Justice Brett Kavanaugh wrote:[3]

“  | Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. See infra, at 6–9; post, at 1–2 (Sotomayor, J., concurring in judgment); post, at 1, 3 (Gorsuch, J., concurring in judgment in part and dissenting in part). Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. See infra, at 10–25; post, at 2 (Sotomayor, J., concurring in judgment); post, at 11–12 (Breyer, J., concurring in judgment with respect to severability and dissenting in part). As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. ...

In 1991, Congress enacted a general restriction on robocalls to cell phones. In 2015, Congress carved out an exception that allowed robocalls made to collect government debt. In doing so, Congress favored debt-collection speech over plaintiffs’ political speech. We hold that the 2015 government-debt exception added an unconstitutional exception to the law. We cure that constitutional violation by invalidating the 2015 government-debt exception and severing it from the remainder of the statute. The judgment of the U.S. Court of Appeals for the Fourth Circuit is affirmed.[7]

| ”

|
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—Justice Brett Kavanaugh

### Concurring opinion[edit]

#### Justice Breyer[edit]

Justice Stephen Breyer filed an opinion concurring in the judgment with respect to severability and dissenting in part, joined by Justices Ruth Bader Ginsburg and Elena Kagan. For more on the opinion, click here.[3]

#### Justice Sotomayor[edit]

Justice Sonia Sotomayor filed a concurring opinion.[3]

In her concurring opinion, Sotomayor wrote:

“  | I agree with much of the partial dissent's explanation that strict scrutiny should not apply to all content-based distinctions. Cf. post, at 5–9 (Breyer, J., concurring in judgment with respect to severability and dissenting in part). In my view, however, the government-debt exception in 47 U.S.C. §227(b) still fails intermediate scrutiny because it is not "narrowly tailored to serve a significant governmental interest." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted). Even under intermediate scrutiny, the Government has not explained how a debt-collection robocall about a government-backed debt is any less intrusive or could be any less harassing than a debt-collection robocall about a privately backed debt. As the Fourth Circuit noted, the government-debt exception is seriously underinclusive because it permits "many of the intrusive calls that the automated call ban was enacted to prohibit." American Assn. of Political Consultants, Inc. v. FCC, 923 F. 3d 159, 168 (2019) (case below). The Government could have employed far less restrictive means to further its interest in collecting debt, such as "secur[ing] consent from the debtors to make debt-collection calls" or "plac[ing] the calls itself." Id., at 169, n. 10; see also §227(b)(1)(A). Nor has the Government "sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like." Ante, at 9.

Nevertheless, I agree that the offending provision is severable. See ante, at 2; post, at 11–12 (opinion of Breyer, J.); see also City of Ladue v. Gilleo, 512 U.S. 43, 51–53 (1994) (explaining that an appropriate "solution" to a law that covers "too little speech because its exemptions discriminate on the basis of [the speaker's] messages" could be to "remove" the discrimination).

With those understandings, I concur in the judgment.[7]

| ”

|
|

—Justice Sonia Sotomayor

#### Justice Gorsuch[edit]

Justice Neil Gorsuch filed an opinion concurring in the judgment in part and dissenting in part, joined by Justice Clarence Thomas. For more on the opinion, click here.[3]

### Dissenting opinion[edit]

#### Justice Breyer[edit]

Justice Stephen Breyer filed an opinion concurring in the judgment with respect to severability and dissenting in part, joined by Justices Ruth Bader Ginsburg and Elena Kagan.[3]

In his opinion, Breyer wrote:[3]

“  | A federal statute forbids, with some exceptions, making automatically dialed or prerecorded telephone calls (called robocalls) to cell phones. This case concerns one of these exceptions, which applies to calls "made solely to collect a debt owed to or guaranteed by the United States." 47 U.S.C. §227(b)(1)(A)(iii). A majority of the Court holds that the exception violates the Constitution's First Amendment. In my view, it does not.

... The plurality finds the government-debt exception unconstitutional primarily by applying a logical syllogism: (1) "Content-based laws are subject to strict scrutiny.” Ante, at 6 (citing Reed v. Town of Gilbert, 576 U.S. 155, 163–164 (2015)). (2) The exception is based on “content.” Ante, at 7. (3) Hence, the exception is subject to “strict scrutiny.” Ante, at 9. (4) And the Government concedes that the exception cannot survive "strict scrutiny" examination. Ibid.

The problem with that approach, which reflexively applies strict scrutiny to all content-based speech distinctions, is that it is divorced from First Amendment values. This case primarily involves commercial regulation–namely, debt collection. And, in my view, there is no basis here to apply "strict scrutiny" based on "content discrimination".

... I would examine the validity of the regulation at issue here using a First Amendment standard that (unlike strict scrutiny) does not strongly presume that a regulation that affects speech is unconstitutional. However, given that the government-debt exception does directly impact a means of communication, the appropriate standard requires a closer look at the restriction than does a traditional "rational basis" test. A proper inquiry should examine the seriousness of the speech-related harm, the importance of countervailing objectives, the likelihood that the restriction will achieve those objectives, and whether there are other, less restrictive ways of doing so. Narrow tailoring in this context, however, does not necessarily require the use of the least-restrictive means of furthering those objectives. Cf. Ward v. Rock Against Racism, 491 U.S. 781 797–799, and n. 6 (1989) (explaining that outside of strict scrutiny review, narrow tailoring does not require the use of least-restrictive means analysis). That inquiry ultimately evaluates a restriction's speech-related harms in light of its justifications. We have typically called this approach “intermediate scrutiny,” though we have sometimes referred to it as an assessment of "fit," sometimes called it "proportionality," and sometimes just applied it without using a label. See United States v. Alvarez, 567 U.S. 709, 730–731 (2012) (Breyer, J., concurring in judgment); Reed, 576 U.S., at 179 (Breyer, J., concurring in judgment).

... The upshot is that the government-debt exception, taken in context, inflicts some speech-related harm. But the harm, as I have explained, is related not to public efforts to develop ideas or transmit them to the Government, but to the Government's response to those efforts, which here takes the form of highly regulated commercial communications. Moreover, there is an important justification for that harm, and the exception is narrowly tailored to further that goal. Given those facts, the government-debt exception should survive intermediate First Amendment scrutiny.

I would find that the government-debt exception does not violate the First Amendment. A majority of the Court, however, has concluded the contrary. It must thus decide whether that provision is severable from the rest of the statute. As to that question, I agree with Justice Kavanaugh's conclusion that the provision is severable. Accordingly, I respectfully concur in the judgment with respect to severability and dissent in part.[7]

| ”

|
|

—Justice Stephen Breyer

#### Justice Gorsuch[edit]

Justice Neil Gorsuch filed an opinion concurring in the judgment in part and dissenting in part, joined by Justice Clarence Thomas.[3]

In his opinion, Gorsuch wrote:

“  | 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.

... In my view, the TCPA’s rule against cellphone robocalls is a content-based restriction that fails strict scrutiny. ... 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.

... 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. ... A severance remedy not only fails to help the plaintiffs, it harms strangers to this suit.

... Unable to solve the problems associated with its preferred severance remedy, today's decision seeks to at least 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.[7]

| ”

|
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—Justice Neil Gorsuch

### Text of the opinion[edit]

Read the full opinion here.

## Oral argument[edit]

### Audio[edit]

Audio of oral argument:[8]

Your browser doesn't support the audio tag.

### Transcript[edit]

## See also[edit]

* Supreme Court cases, October term 2019-2020

* Supreme Court of the United States

* History of the Supreme Court

## External links[edit]

| Suggest a link

|

* Search Google News for this topic
* U.S. Supreme Court docket file - Barr v. American Association of Political Consultants Inc. (petitions, motions, briefs, opinions, and attorneys)
* SCOTUSblog case file for Barr v. American Association of Political Consultants Inc.

## Footnotes[edit]

1. ↑ SCOTUSblog, "Barr v. American Association of Political Consultants Inc.," accessed January 14, 2020
2. ↑ U.S. Supreme Court, "Press release from April 3, 2020," accessed April 3, 2020
3. ↑ 3.00 3.01 3.02 3.03 3.04 3.05 3.06 3.07 3.08 3.09 3.10 Supreme Court of the United States, Barr, Attorney General, et al. v. American Association of Political Consultants, Inc., et al., decided July 6, 2020
4. ↑ 4.0 4.1 Supreme Court of the United States, 19-631 Barr v. Political Consultants, Questions Presented:, accessed July 7, 2020
5. ↑ 5.0 5.1 5.2 5.3 5.4 United States Court of Appeals for the 4th Circuit, Am. Ass'n of Political Consultants, Inc. v. Federal Commc’ns Comm’n, decided April 24, 2019
6. ↑ Cornell Law School Legal Information Institute, "Strict scrutiny," accessed January 14, 2020
7. ↑ 7.0 7.1 7.2 7.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
8. ↑ Supreme Court of the United States, "Oral Argument - Audio," accessed May 11, 2020

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