A Dark Day for Free Speech: Supreme Court Upholds Statute Supposedly Preventing Robocalls–But at what Cost?

This last weekend our nation celebrated–if that word can rightly be used given the current turmoil– its Independence Day.

First among the freedoms we hold dear is the right to free speech. See it says so right here in the First Amendment:

Congress shall make no law… abridging the freedom of speech…

Seems pretty black and white. Congress shall make no law.. etc.

In today’s Supreme Court decision of Barr v AAPC, however, the Supreme Court not only upheld the broadest restriction on Constitutionally-protected speech in our nation’s history, it did so in a manner that will help shut down future challenges to statutes that abridge speech–creating an entirely new First Amendment doctrine in the meantime. And that is a really big deal.

As dark as this decision is for free speech–more on that below–many will cheer the decision as a victory. The “Supreme Court Pushes Back Against Robocalls”–the headlines will read.

In truth the Supreme Court breathed new life into a bad statute–the Telephone Consumer Protection Act (“TCPA”)–that does little (probably nothing) to prevent the sort of robocalls consumers hate most. That’s because the TCPA is not effective against overseas call centers and fly-by-night scammers– the ones causing all the trouble. Those sorts of calls are stopped by the FCC’s far more effective call blocking and authentication rules. These technological solutions have cut down massively on robocalls–in a way the TCPA never achieved.

But the perception that the TCPA prevents robocalls undoubtedly guided the court’s analysis of the statute and generated the court’s stunning conclusion–that although the statute is unconstitutional as written it can still be applied against the party challenging it.

How is that possible you might ask?

The TCPA–unlike most restrictions on speech–is written extremely broadly. (Again it is the most broad restriction on speech Congress has ever devised.) Rather than target specific speech for its illicit or undesired content it targets ALL speech made in a certain manner. And while it might seem counter intuitive that a broad restriction on speech is superior to a narrow one under the First Amendment–again the First Amendment is supposed to prevent Congress from restricting any speech– the Barr court focused on the statute’s great and even breadth as one of its most palatable attributes.

The problem with the TCPA–from the Supreme Court’s perspective–is not its tremendous breadth but with a tiny sliver of calls that Congress did allow– debt collection calls on government-backed debt. And while the average American might think it is a good thing for the government to be able to call folks that owe it money, this uneven restriction on speech triggered strict scrutiny– a very intense form of Court review that is supposed to prevent intrusions on our freedom.

So far so good actually. First Amendment doctrine has long held that where a statute restricts speech unevenly–in a so-called “content specific” sort of way– the Supreme Court is to apply strict scrutiny to that statute and strike it down. That way our freedoms enshrined in the Bill of Rights are protected from government intrusion–Independence Day and all that.

Except, in Barr, the Supreme Court did not strike down the TCPA the way it was supposed to. Instead–focusing on the importance of preventing robocalls– the Supreme Court struck down solely the exemption permitting speech, and expanded the TCPA to cover even more speech.

What this means is that the party challenging the statute as unconstitutional won– but still lost. Instead of having its own speech deemed legal, it only got to see other speakers also lose their voice.

This, the Barr court tells us in a footnote, is ok because many times private speakers will want other private speakers to be quiet–such as when one wishes to silence a business rival. But the fact that private speakers may wish to silence one another certainly shouldn’t justify allowing the government so silence all of us–and that is exactly what the Court’s decision accomplishes.

Specifically, Barr introduces a new First Amendment doctrine and new parlance to go with it: introducing the First Amendment “equal treatment” case. In such cases, the Supreme Court holds for the first time ever in Barr, the proponent of free speech is not actually entitled to free speech–as the First Amendment seems to assure–rather he/she/it is entitled only to as much speech as everyone else gets. No more, no less.

While “evenness” has long been the touchstone of review in Equal Protection challenges, the First Amendment has traditionally operated differently. The goal in a free speech challenge is not to “even out” speech–it is to set it free. Its not to assure that the muzzle I wear is the muzzle you wear–it is to take off the blasted muzzle.

Sadly, in Barr the Supreme Court left the muzzle on and handed the government a big victory in doing so. Indeed, it follows from Barr that the government can safely restrict all speech to everyone so long as it does so evenly. . And where Congress chooses to cherry-pick favored speech and remove it from a broad restriction the worst that can happen is that the Congressional permission slip will be revoked and everyone will be silenced again.

This is a really bad day for free speech folks. A day that saw the creation of an entirely new First Amendment doctrine that appears developed specifically to justify denying speech to a successful First Amendment challenger. A doctrine that perversely (yet expressly) converts the First Amendment from a tool designed to protect speech into a tool that can only be used by private actors to take away speech from other private actors. It converts the First Amendment into a glorified ironing board. Simply remarkable.

Against this backdrop, the impact AAPC has on the actual TCPA is almost immeasurably small. The ruling is extremely narrow and tightly-confined. It does not move the needle on TCPA jurisprudence at all except to expand the statute to reach collectors of government-backed debt again. (And it remains to be seen whether this expansion can be applied retroactively.)

But for all of us as Americans the decision in Barr should send a chill down our collectives spines. The Supreme Court has sacrificed some of our most cherished rights and ideals today in the name of upholding a bad statute that does not even do what it was intended to do–all in the name of preventing robocalls. And while it is true that we all hate unwanted robocalls, I would like to think we all still love our freedom of speech a little bit more.

Then again, we all live in our private echo chambers these days–listening only to the views/news/opinions we want to hear and discounting all others. (A phenomenon that has absolutely nothing to do with the state our Nation is in more broadly I am sure.) Perhaps then, here in 2020 Americans have finally had enough of free speech and prefer simply to be left alone.

If so, Barr is certainly the Supreme Court ruling for you.

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26 Comments

  1. This is a horrible day for our country. The fact that the supreme court is more worried about the political/popular ramifications vs protecting our liberties is scary. This law should of never withstood this test with some basic logic. The TCPA is littered with content based exemptions. Furthermore if the justices took a more global view we could all agree that if the DNC were simply enforced then the problem is moot. Shoot down the law, if people dont want to receive robocalls they sign their number for the DNC thus OPTING OUT of free speech vs the government opting them out automatically.

      1. Thank you! Love the blog! You should occasionally bring some people on from the standpoint of the businesses. Hopefully people could hear how this affects all businesses.

    1. The only problem is that the DNC doesn’t apply to non-telemarketing calls. In other words, the DNC doesn’t apply to the exact type of calls that the American Association of Political Consultants wanted to allow. There was an effort years ago to include non-telemarketing calls within the DNC but the lobby suppressed that effort. I agree that if the DNC applied for all calls this could be a workable solution.

  2. I, like many others, have a pay-as-you-go cell phone plan. Each minute, rounded up to the next full minute, costs me $0.07. So, for me and many others, it is hardly “free” speech.

  3. Your freedom of speech ends at my front door. Robicalls cross my threshold without the decency of an actual person’s time behind them. At least going door to door takes human effort.

    If you want to exercise your freedom of speech at my door, the cost is a human’s time. That’s not an unreasonable price.

    1. True. But First Amendment requires- or used to require- affirmative action by an unwilling listener to silence speakers. The DNC list is constitutional. A prior restraint imposed by the government is/was not.

      1. What part of the First Amendment “requires- or used to require- affirmative action by an unwilling listener to silence speakers”?

    2. Don’t companies have the right to free speech and marketing too? Its also extremely tasking on the human to expect them to hand dial.

      1. Agreed! If they would exempt predictive dialers then I would think everything would be fine but and automatic dialer actually is a medical relief to people vs hand dialing them. The repetitive movement of dialing over and over is actually a common workmans comp claim.

  4. You can’t yell fire! in a crowded movie theatre, if there is no fire. You would probably condemn that as an assault on your First Amendment Rights as well. Fool.

    1. Certain kinds of speech have long been deemed outside of constitutional protection- such as lies, obscenity and speech that creates a clear and present danger. The TCPA restricts protected speech. The Barr decision, therefore, prevents Americans from taking advantage of First Amendment protections for all speech- good and bad.

  5. Hi Eric,

    I am a HUGE fan of your blog, and been reading a lot of your posts. I love your passion and dedication for the work you do, it shines through in everything you write. Keep it up!

    I knew nothing of these things, nor the law, since I am a computer guy, but having been brainstorming a product idea, the laws surrounding TCPA have become very relevant.

    From your posts I think it’s safe to say you are not a fan of the TCPA in general.

    My most burning questions I have is for you is what your ideal solution would be, if the TCPA would fall? Because I just can’t see that letting all calls fly would be advocated by anyone? A cell phone user could effectively become a victim of a ‘denial-of-service attack’ as we say in computer parlance by becoming unreachable due to being flooded with unwanted calls, which would drown out wanted calls. Would there not be a solution which is more narrowly tailored that can withstand the Central Hudson test?

    And does a cell phone owner then not have any recourse to take a stand? I suppose ‘opting out’ is a way, but with millions of parties calling this could become a DOS attack in itself.

    Anyways, some comments on your article:

    1) “Rather than target specific speech for its illicit or undesired content it targets ALL speech made in a certain manner.”
    Are you suggesting that speech can be targeted? Isn’t the courts solution at least an elegant one i.e. make all players, including the g’ment equal speakers?

    2) “This is a really bad day for free speech folks.”
    In my view the speech of the the litigants is not abridged. There are other channels still available.. e.g. mail me a flyer, fly a plane with a banner over my house, drive a truck with a billboard through my street. The court said nothing about the speech itself here.

    3) “What this means is that the party challenging the statute as unconstitutional won– but still lost.”
    My understanding is that AAPC challenged the Free Speech Clause of the First Amendment by imposing a content-based restriction on speech. Their desired outcome no doubt was to have TCPA struck, but like the square root of -1 is ‘i’ but also ‘-i’, the outcome still satisfies here. This is similar to the June medical case and expecting Roe v Wade to be overturned. Maybe that is how precedent is overturned, but I would think a court to remain legitimate would have to struck down such lows on their merit. Alas…

    4) “Then again, we all live in our private echo chambers these days–listening only to the views/news/opinions we want to hear and discounting all others”
    I agree wholeheartedly, but are ‘we’ not entitled to listen to what we want to in that ‘chamber’? I always think that some preacher on a public square has all the rights to share his views, but can not do so in my house. As the court held in Rowan v Post Office: “The ancient concept that “a man’s home is his castle” into which “not even the king may enter” has lost none of its vitality.”
    Also, other channels remain in place… why does it have to be a call to a mobile number?

    Sincerely

    1. Lots of good stuff here. Don’t have time to respond to everything but happy to share these thoughts with my readers. My main point is that SCOTUS used our disdain for robocalls to pull the wool over our eyes and take away our ability to leverage the First Amendment. The First Amendment is NOT an ironing board.

  6. Robocalls are very harassing. Sometimes I get as many as 30 calls a day one after the other. Free speech ends when it comes to harassing others.

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