700x394_D.Hudson_Col_7.8.20

Court Majority Continues to Pay Homage to the Content Discrimination Principle

This column expresses the views of David L. Hudson Jr., First Amendment Fellow of the Freedom Forum.

The U.S. Supreme Court’s decision Monday to keep a federal law banning most robocalls and remove an exception allowing for government debt-collector robocalls also carried a strong message that the court will not permit government officials to selectively pick and choose what messages private citizens can and cannot hear.

The court’s decision in Barr v. American Association of Political Consultants shows that the majority still views the content discrimination principle as the leading lodestar in First Amendment free-speech cases.

Since 1991, Congress had banned most robocalls, those annoying automated telephone messages. However, in 2015, the government amended the law to allow robocalls to cell phones to collect government debt, such as student loans or mortgage debts.

This is classic content discrimination. The government favors government-debt robocalls but disallows robocalls for political, charitable or other purposes. The government argued that the government-debt exception was content neutral for three reasons: (1) the distinctions are based on speakers; (2) the calls relate to economic activity, not speech; and (3) if this law is content-based, so are other laws that regulate debt collection.

Justice Brett Kavanaugh, writing for three other justices on this point, correctly rejected all three of these sophisms. First, many laws favoring certain speakers indeed are content-based. Second, the government-debt exception “focuses on whether the caller is speaking about a particular topic.” Third, the law here does not incidentally burden speech, but directly aims at particular speakers on particular topics.

In short, Kavanaugh correctly explained that “the robocall restriction with the government-debt exception is content-based.” Once finding the law content-based, the court easily noted the law did not pass strict scrutiny. Even the government conceded that if strict scrutiny applies, there is no way to treat government robocalls differently than “other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising and the like.”

Kavanaugh and six other members of the court, however, refused to invalidate the bulk of the federal law generally barring robocalls. He reasoned that the government-debt exception could be severed, or removed, from the rest of the legislation without running afoul of the First Amendment — a ruling only disagreed with by Justices Neil Gorsuch and Clarence Thomas.  When a provision is severed, it means that it is cut out of the law but the rest of the law remains in place.

That is an interesting point regarding severability. Good arguments can be made on both sides. The net effect of the court’s ruling is that the federal law barring robocalls remains on the books.

But what is also very clear from the court’s decision is that the content discrimination principle still stands in First Amendment jurisprudence.

What Justice Thurgood Marshall wrote so beautifully years ago in Chicago Police Dept. v. Mosley (1972) is still true today:

“The First Amendment, above all else means that the government may not restrict expression because of its message, ideas, subject matter or content.”

David L. Hudson, Jr. is a First Amendment Fellow at the Freedom Forum, and a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of “First Amendment: Freedom of Speech” (2012), the author of a 12-part lecture series titled, “Freedom of Speech: Understanding the First Amendment” (2018) and a 24-part lecture series titled, “The American Constitution 101” (2019).

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