Barr v. American Association of Political Consultants Inc.

Whether a provision of the Telephone Consumer Protection Act of 1991 exempting government debt collection calls from the ban on automated calls violates the First Amendment; and if so, whether that provision severable from the rest of the Act.

• Malcolm L. Stewart, for the Petitioners
• Roman Martinez, for the Respondents

In Barr v. American Association of Political Consultants, the Court is considering a statute that sharply limits autodialed phone calls (“robocalls”) to cell phones but has a content-based exception for “call[s] made solely to collect a debt owed to or guaranteed by the United States.” Under well-established (though not unanimous) First Amendment precedents, the content distinction would subject the whole law to strict scrutiny, rendering it unconstitutional unless the exception qualifies as “narrowly tailored” to a “compelling government interest”—a hard burden for the government to meet.

In recent years Justice Kagan has been pushing back against this across-the-board strict scrutiny for content-based laws, and one of her questions reflected that pushback:

Q: I’ll give you a hypothetical. Suppose this statute was written in a slightly different way and it exempted any calls between the holder of a government debt and the debtor. Would strict scrutiny apply?

The challengers’ lawyer (Roman Martinez) responded “no,” because that law “would not turn on the content of the calls.” And Justice Kagan’s follow-up, of course, was:

Q: Right. In other words, it would turn on the relationship. And so I guess the question is, . . . what’s the difference?

What’s the difference, she was asking, between (1) this hypothetical content-neutral exemption for calls between a debt holder and the debtor, and (2) the real exemption that was being challenged, which covers “call[s] made solely to collect a debt owed to or guaranteed by the United States”? And in his rebuttal, Malcolm Stewart from the Solicitor General’s Office referred to this colloquy as an argument for upholding the calls-made-to-collect-a-debt exception.

The challengers’ lawyer generally did an excellent job at argument, but he might have responded differently to Justice Kagan’s question, in a way that would resist the implication that the content discrimination doctrine is just an empty formalism.

The answer I suggest below might not have persuaded Justice Kagan to change her views about strict scrutiny for content-based laws; she was one of the three Justices who didn’t join the Reed majority. On the other hand, she might be persuaded that, whatever the merits of a firm rule against content discrimination, speaker discrimination of the sort found in her hypothetical really ought to qualify as a form of content discrimination. And I think some of the other Justices, especially those who joined Justice Thomas’s majority in Reed, would find this position appealing as well.