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Robocall Ban Upheld, Broadened by Supreme Court in Speech Case

July 6, 2020, 8:48 PM

The U.S. Supreme Court broadened the federal ban on robocalls to mobile phones, eliminating an exception that had existed for government-debt collection while leaving the rest of the law intact.

In a splintered ruling, the court said the 2015 exception, which allowed robocalls if made to recoup debt owed to or guaranteed by the federal government, violated the Constitution’s free speech guarantee. Writing the court’s controlling opinion, Justice Brett Kavanaugh said that exception “favors speech made for collecting government debt over political and other speech.”

But Kavanaugh also said the court could strip out the exception without tossing the ban in its entirety.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Kavanaugh wrote for himself, Chief Justice John Roberts and Justice Samuel Alito.

The ruling is a defeat for political groups that had sought a new avenue for campaign activity in the months leading up to the November election. The challengers -- which included the Oregon Democratic Party, the Washington State Democratic Central Committee and a trade group that represents political consultants -- sought to overturn the entire robocall ban.

The ruling upholds the decision of a federal appeals court. President Donald Trump’s administration defended the ban, along with the government exception.

Splintered Court

Justices Neil Gorsuch, Clarence Thomas and Sonia Sotomayor joined Kavanaugh in concluding that the government exception was unconstitutional.

Gorsuch and Thomas said they wouldn’t have stripped the government exception from the statute and instead would have held that the measure could no longer be applied to the groups that sued. The two said Kavanaugh’s approach amounted to a rewriting of the statute and left the suing groups without anything to show for their constitutional challenge.

“Severing and voiding the government-debt exception does nothing to address the injury they claim; after today’s ruling, federal law bars the plaintiffs from using robocalls to promote political causes just as stoutly as it did before,” Gorsuch wrote for the pair. “What is the point of fighting this long battle, through many years and all the way to the Supreme Court, if the prize for winning is no relief at all?”

Three other justices -- Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan -- said they would have upheld the government exception but agreed with the decision to keep the rest of the law intact.

The 1991 Telephone Consumer Protection Act imposes liability of up to $1,500 for any call or text placed to a mobile phone without prior consent using an automatic dialing system or artificial or prerecorded voice.

The case is Barr v. American Association of Political Consultants, 19-631.

(Updates with Gorsuch’s opinion starting in eighth paragraph)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Elizabeth Wasserman, Laurie Asséo

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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