INSIGHT: SCOTUS Curtails Government Power to Regulate Through Speech Restriction

July 28, 2020, 8:01 AM

The U.S. Supreme Court’s decision in Barr v. American Association of Political Consultants Inc. could greatly limit the government’s ability to use speech regulation as a regulatory tool. While the immediate impact of the decision is only to eliminate the government debt exception to the Telephone Consumer Protection Act’s bar on using robocalls for debt collection purposes, its doctrinal underpinning may have far greater consequences.

The court’s four member plurality opinion, to which Justice Samuel Alito added a fifth vote in his separate concurrence, analyzed the “robocall” restriction as a First Amendment cognizable restraint on the association’s speech and content based because government collection calls differed in content from the political messages association members wished to transmit.

Strict Scrutiny

Because the TCPA incorporated a selective content-based restriction after it was amended to except government debt collection, the court subjected it to First Amendment “strict scrutiny” and found it unconstitutional after rejecting the government’s argument that pervasive regulation of the activities of debt collectors triggered greater constitutional latitude.

To save the statute, and perhaps to avoid a firestorm of public concern were all “robocall” restrictions to be set aside, the court simply leveled the playing field by striking down the government exception.

The court gave no separate attention to the fact that the speech being restrained by the TCPA was largely commercial, a category of restraint that it had heretofore analyzed under a more flexible intermediate scrutiny standard.

While the plurality disavowed any intent “to expand existing First Amendment doctrine or otherwise affect traditional or ordinary economic regulation of commercial activity,” Justice Stephen Breyer’s three justice dissents warned that the court’s approach would reflexively apply “strict scrutiny to all content-based speech distinction ... divorced from First Amendment values.”

He argued that the decision would make “all content-based discrimination on speech presumptively unconstitutional ... and would obstruct the ordinary workings of democratic governance” because “much regulatory activity turns upon speech content.” Thus, he gave no credence to the majority’s disavowal of interference with traditional or ordinary economic regulation.

Unanswered Questions

The universal application of strict scrutiny to all speech restraints would resolve the question left open in the court’s Sorrell v. IMS Health Inc. decision whether commercial speech is entitled to full First Amendment protection. Justice Clarence Thomas has long espoused the view that “speech is speech’’ and the gradation of review standards is a judicial construct without basis in the language of the First Amendment. Association of Political Consultants may well signal that he has won that interpretive battle and put government to a more stringent test in regulating through speech mandates.

Strict scrutiny, requiring the government to demonstrate both a compelling interest in restriction and the selection of the narrowest restriction necessary to advance that interest, is often considered a death knell for government restrictions. But that need not be the case.

Thus, for example, required warnings in drug labels and advertising could be argued to serve a compelling government interest in protecting the public health in a way that could not be achieved by directly regulating drug approval standards. Conversely, requiring drug advertisements to include price disclosures as an indirect means of price control would seem virtually impossible under a narrowest means analysis.

Thus, Justice Breyer may be crying wolf too expansively against a ruling that would force the government to target its regulatory restraints with more precision without making them impossible.

Variations in First Amendment review standards are not limited to commercial speech challenges and the door may now be open to applying strict scrutiny as a universal standard. For example, the imposition of contribution disclosure requirements to political speech has been reviewed under an amorphous “exacting scrutiny” standard more akin to intermediate than strict scrutiny.

Comprehensive disclosure might well survive strict scrutiny in a candidate election where the potential for future influence is of great concern to voters. However, its imposition in referendum campaigns leading to up or down results rests on a shakier foundation. It is an open question as to whether a narrower disclosure from speakers with an economic interest in the result would suffice to inform voters sufficiently to evaluate any conflicting views.

The Association of Political Consultants decision may have flown under public radar for now but litigants and courts have not seen the last of it.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Bert W. Rein is a founding partner of Wiley. He is widely recognized as a leading antitrust and commercial litigator with international law expertise. He has been on the forefront of constitutional litigation involving the First Amendment and free commercial speech.

Kevin G. Rupy, partner in Wiley’s Telecom, Media & Technology Practice, is a former vice president of law and policy at USTelecom. His practice centers on the legal and policy issues surrounding both traditional and emerging communications technologies.

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