On July 6, the Supreme Court issued a long-awaited decision in Barr v. American Association of Political Consultants addressing whether a provision of the Telephone Consumer Protection Act (“TCPA”)—which generally prohibits robocalls to cell phones—violates the First Amendment by exempting calls made to collect a debt owed to or guaranteed by the United States. In a fractured set of opinions, the Court invalidated the government-debt exception, but it left the TCPA’s restrictions on automated calls intact. The opinion dashed the hopes of those who saw the appeal as a potential avenue for a broader invalidation of the 1991 Act that has engendered significant class action litigation, particularly in recent years. Three days later, however, the Court granted a petition for certiorari in Facebook, Inc. v. Duguid to address a growing circuit split regarding what devices constitute autodialers under the statute.

• The plaintiffs in Barr were political and nonprofit organizations that want to make political robocalls to cell phones. They argued that the TCPA’s government-debt exception violates the First Amendment by favoring debt-collection speech over political and other speech. Accordingly, plaintiffs sought to invalidate the TCPA’s restrictions on automated calls in their entirety, rather than simply invalidating the government-debt exception.
• Justice Kavanaugh authored a plurality opinion, joined in full by Chief Justice Roberts and Justice Alito and in part by Justice Thomas. After concluding that the government-debt exception is, in fact, a content-based speech restriction, the plurality applied strict scrutiny—a standard that the government conceded it could not satisfy.
• Justice Kavanaugh then turned to the remedy for the constitutional violation. Rather than striking down the restrictions in their entirety, as plaintiffs requested, the plurality severed the exception from the TCPA, citing both the “strong presumption” that “an unconstitutional provision in a law is severable” and an explicit severability clause in the Communications Act, which the TCPA amended.
• Three other justices wrote separate opinions.
  • Justice Sotomayor authored a two-paragraph opinion concurring in the judgment. Justice Breyer submitted an opinion concurring in the judgment with respect to severability and dissenting with respect to constitutionality, which was joined by Justices Ginsburg and Kagan. Justice Gorsuch submitted an opinion concurring in part and dissenting in part, agreeing that the exception was unconstitutional, albeit for different reasons, but dissenting with respect to severability. Justice Thomas joined in Gorsuch’s dissent regarding severability.
  • Notably, Gorsuch stated that he would hold that the plaintiffs are entitled to an injunction preventing enforcement of the robocall ban against them. Gorsuch explained that severing the government-debt exception gave plaintiffs no meaningful relief because they did not challenge the exception—they challenged the entire robocall ban. He queried: “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?”
• The same week, the Supreme Court granted Facebook’s petition for certiorari asking the Court to resolve the circuit split regarding the TCPA’s definition of “autodialers.” The Court limited its review to the second question presented: whether the definition “encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’”
  • As we reported in the February edition of Predominant Issues, the Eleventh and Seventh Circuits have narrowly interpreted “autodialer,” limiting the term to devices that send messages or make calls to randomly or sequentially generated phone numbers. The Ninth and Second Circuits’ interpretation is much broader, encompassing all devices with the capacity to store and automatically dial numbers.
  • The Supreme Court’s ruling in Facebook will have a significant impact on the ever-growing number of class actions under the TCPA. Briefing will commence soon, and argument will be heard after the Court’s next term begins in October.
• Read the Supreme Court’s opinion in Barr here. The Facebook docket is here.