Does a federal law that generally bans automated debt-collection calls to cell phones — unless the call is made to collect a debt owed to or guaranteed by the United States — violate the First Amendment?
That question captures the essence of Barr v. American Association of Political Consultants, a case pending before the U.S. Supreme Court.
The Telephone Consumer Protection Act of 1991 generally prohibits automated calls to cell phones or calls with artificial or prerecorded voices. The law was designed to protect consumers’ privacy and prevent harassment. However, the law contains three exemptions. The first two exceptions were added when the law was passed. They related to emergency calls and consent calls — when the call is made for emergency purposes or if the cell phone owner previously gave consent to the calls.
However, in 2015, Congress added a third exception to the automated call ban — the so-called debt collection exemption. Several groups — including a group that makes political-based automated calls — challenged the law in federal court in May 2016.
On March 24, 2018, the U.S. District Court for the Eastern District of North Carolina upheld the statutory exemption. The district court reasoned that the law was a content-based restriction on speech subject to strict scrutiny — the highest form of judicial review. Under Supreme Court jurisprudence — most notably the court’s decision in Reed v. Town of Gilbert (2015) — content-based laws are viewed with great suspicion.
However, the district court reasoned that the law furthered a compelling government interest in ensuring the privacy of individuals.
The plaintiffs appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed its April 24, 2019 decision in American Association of Political Consultants v. Barr. The Fourth Circuit also determined that the law was a content-based restriction on speech, as it “facially distinguishes between phone calls on the basis of their content.”
But, unlike the district court, the Fourth Circuit reasoned that the content-based law was unconstitutional. The Fourth Circuit wrote that the law was “fatally underinclusive” because “by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban.”
In fact, the Fourth Circuit explained that “the debt-collection exemption exposes millions of American consumers to some of the most disruptive phone calls they receive.”
The U.S. government petitioned the U.S. Supreme Court for review, which the court granted on Jan. 10, 2020. Oral arguments were originally set for April 22, 2020. Because of the COVID-19 pandemic, those arguments have been postponed. But, the First Amendment questions undergirding this case are vitally important. The case gives the court an opportunity to expound on the reach of its decision in Reed and how it applies the content-discrimination principle
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).