This came in while I was mixing two bags of different flavored tea together in making my afternoon treat (yes, and why not? It’s a Friday afternoon). And I almost screamed when I saw this news.
The United States Supreme Court just granted a petition for a writ of certiorari in William P. Barr et al. v. American Association of Political Consultants, Inc. et al., No. 19-631, to review the Fourth Circuit’s decision striking down 47 U.S.C. 227(b)(1)(A)(iii) as unconstitutional. (Hold my breath for a second…)
First, some background for this case. Petitioners here, are William P. Barr, Attorney General of the United States (“Attorney General”) and the Federal Communications Commission (“FCC”). Respondents are an association of political consultants and various political organizations. In 2016, respondents sued Attorney General and the FCC in the Eastern District of North Carolina, alleging that “the government-debt exception to the automated0call restriction effects an impermissible form of content-based discrimination, in violation of the Free Speech Clause of the First Amendment.” (See Petition at p. 4.) The district court granted summary judgment in favor of the government and rejected respondents’ claim that the TCPA violates the First Amendment. However, upon appeal by respondents, the Fourth Circuit vacated the lower court’s judgment. The court concluded that “the government-debt exception renders that automated-call restriction ‘fatally underinclusive’ ‘by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit,’ and by ‘imped[ing] the privacy interests of the automated call ban.’” The court of appeals therefore held that the TCPA provision “fails strict scrutiny review” and “violates the Free Speech Clause.” The court of appeals further denied rehearing en banc. (See Petition at pp. 5 and 6.)
Petitioners filed their Petition on November 14, 2019 and presented the Supreme Court with the following question:
Whether the government-debt exception to the TCPA’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
Respondents submitted their brief in support of certiorari on December 4, 2019. They agreed that certiorari should be granted, but on slightly different grounds. Respondents argue that although the Fourth circuit held that the statute at issue is unconstitutional, it refused to invalidate the speech restriction or provide any other meaningful relief. Instead, the court of appeals “severed” an exception to the speech restriction, and its severability analysis was wrong and therefore required the Supreme Court’s urgent attention. (See Respondents’ Brief.) The question presented by respondents to the Supreme Court was:
Whether the TCPA’s automated-call prohibition is an unconstitutional content-based restriction of speech, and if so whether the Fourth Circuit erred in addressing the constitutional violation by broadening the prohibition to abridge more speech.
Now, attention please: as the Supreme Court granted the petition for a writ of certiorari today (although it did not explain the grounds for granting), this long fought battle over the controversial robocall ban is likely going to have a winner (in some ways)… The whole TCPA World is watching closely and we will keep you updated as always.
p.s.: (1) Stay tuned in. Further analysis is coming up on whether the TCPA provision is unconstitutional and whether the proper remedy is to server the unconstitutional content-specific exemption.
(2) If you are interested (as you should be), the Petition for A Writ of Certiorari, Respondents’ Brief In Support of Certiorari, and Petitioners’ Reply are attached here for your further reading.