Supreme Court's Robocall Ban Has a Big Downside

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There’s more than meets the eye in today’s Supreme Court decision striking down a 2015 law that allows some robocalls to your mobile phone — namely, calls seeking to collect government debts. 

On the surface, the court straightforwardly said that if Congress bans robocalls across the board (as it did in the 1990s) it violates the First Amendment to make an exception for calls with certain content (as it did in 2015). Sensibly, the court didn’t re-allow all robocalls; it just eliminated the more recent debt collection exception.

But underneath, the justices were engaged in an important, ongoing debate about how the First Amendment applies to government regulation.

The court’s conservatives deepened their commitment to a rigid, formalistic view of free speech that says the government may never treat speech differently on the basis of its content. That doctrine could be used to attack the many forms of government regulation that arguably do exactly that — for example, by saying what information must or must not appear on a drug warning label.

The court’s liberals responded by pointing out the looming threat to progressive regulation that may come from the conservatives’ attachment to the ban on content-based laws. Justice Stephen Breyer, in his partial dissent, made it clear that he views the conservatives as gathering their forces to stage a free-speech assault on the administrative state.

The general ban on robocalls to your mobile device goes back to 1991. (Although, as anyone who ever answers a call from an unknown number knows, this law is still very imperfectly enforced.) Writing for the conservative plurality, Justice Brett Kavanaugh may actually have understated the case when he said that although Americans “passionately disagree about many things … they are largely united in their disdain for robocalls.”

In 2015, Congress passed and Barack Obama signed a short provision carving out an exception for calls “made solely to collect a debt owed to or guaranteed by the United States.” That provision was good news for some debt collectors and bad news for the rest of us.

Today’s case, Barr v. American Association of Political Consultants, arose when a group of political consultants challenged the scheme as a form of discrimination against the kinds of calls they want to make, namely political robocalls. Their goal wasn’t to get the debt collection exception rolled back. Their stated aim was for the Supreme Court to strike down the 1991 robocall ban.

The consultants’ argument relied on a 2015 case called Reed v. Town of Gilbert — the most important free-speech decision you’ve never heard of. In the Reed case, written by Justice Clarence Thomas, the court struck down the town’s complicated and slightly ridiculous scheme for regulating which signs could go where (and even their size) based on factors like whether they were political signs or temporary directional signs for events.

In the Reed case, Thomas said that because the sign ordinance was based on the content of the signs — what they said, in other words — it must be subject to “strict scrutiny,” the toughest form of judicial review of government action. Once a speech restriction is subject to strict scrutiny, it’s almost always held to be unconstitutional. The only way a speech restriction can survive strict scrutiny is if the government shows that it serves a compelling government interest and is narrowly tailored to achieving that end.

When Reed v. Gilbert was decided, this bright-line rule — all content-based regulation gets strict scrutiny — was radically new. Traditionally, the court applied strict scrutiny only to government regulation that discriminated based on viewpoint, like favoring Democrats over Republicans or certain ideas over others. The core idea was that in a democracy, the government should not be picking and choosing between different ideas, but should let the different ideas fight it out on a (nominally) level playing field.

The Reed rule goes further. Not all content-based regulation is really about the government favoring certain ideas over others.

For the last five years, court watchers like me have been poring over the court’s free-speech decisions to see whether the justices really meant what they said in Reed v. Gilbert. Until now, it’s been genuinely unclear. I teach my First Amendment students all about Reed and what it might or might not mean, but I haven’t ever put the question on my exam, because answering it would just take too long and be too complicated.

The robocall case offers some clarity. Kavanaugh’s opinion squarely applies the Reed standard. Because the current robocall scheme is content-based, he reasons, it gets strict scrutiny, and it loses. Justices Neil Gorsuch and Clarence Thomas wanted the result to be that the 1991 robocall ban would be struck down. Kavanaugh is far more practical than that, and with a grudging assist from the court’s liberals, he reaches the result of striking down only the 2015 exception for government debt.

Breyer’s partial dissent reveals the true stakes. He warns that the courts must not “use the First Amendment in a way that would threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas.” He points out that nearly all regulations — including of securities, food and drugs, false advertising, and workplace health and safety — involve content-based rules because they tell people what to say and what not to say. If all these regulations are to be subject to strict scrutiny, he reasons, either many will fail, or else the concept of strict scrutiny will itself be weakened.

Breyer would like to preserve the administrative power of the regulatory state. He knows Gorsuch and Thomas are coming after it. The First Amendment is one of several angles conservatives can use to attack regulation. Today’s decision suggests that the bright-line rule that content-based regulation gets strict scrutiny is going to be an important weapon as the attack is launched.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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