The Supreme Court recently ruled the government-debt exception in the Telephone Consumer Protection Act (TCPA) violates the First Amendment, but found the unconstitutional provision could be severed from the main TCPA statute. Specifically, the Court held that the government-debt exception was a content-based restriction under the First Amendment subject to strict scrutiny, and because the government conceded they could not meet strict scrutiny, the exception was unconstitutional. Further, although some justices disagreed with the ultimate remedy, the majority held that because the Communications Act, which contains the TCPA, has a severability provision, the proper remedy was to sever the government-debt exception from the TCPA. The ruling affirms a prior decision by the Fourth Circuit Court of Appeals.
As background, the TCPA generally prohibits robocalls and texts sent to consumers without their consent. Among other categories of calls, the TCPA exempts calls and texts sent to consumers to collect debts owed to or guaranteed to the federal government, such as mortgages and student loans. This is generally referred to as the government-debt exception.
In the underlying case, a group of political and nonprofit organizations sought a declaratory ruling challenging the exception, and arguing that it allowed the government’s message regarding debts to be heard by consumers, but prevented their own ability to send political messages. They argued that because severing only the exception from the TCPA would restrict more speech, the proper remedy was to find the entire TCPA unconstitutional. The government defended that the exception distinguishes based on the speaker, not the content of the call. However, the government conceded that if the exception was a content-based restriction, it could not meet strict scrutiny, and the proper remedy would be to sever the exception from the rest of the TCPA under the Communication Act’s severability clause.
Thus, two issues were presented to the Court. First, the Court had to decide whether the TCPA’s government-debt exception was a content-based restriction under the First Amendment. Second, if the exception did violate strict scrutiny as a content-based restriction, then the court had to decide the proper remedy for the constitutional violation.
The majority easily observed that the exception turns on the content of the message. As the court explained, whether a call is prohibited turns on whether the message is about collecting a government debt. Calls or texts for other nonexempt purposes would still be subject to the TCPA’s broad prohibition on robocalls. Because the exception functioned as a content-based restriction, strict scrutiny applied. However, the government conceded that they could not justify the government-debt exception based on that standard. Thus, the Court ruled that the exception violated the First Amendment.
Turning to the remedy, the majority noted that where Congress has provided an express severability clause, the Court should adhere to the text of the clause. Although the TCPA itself does not contain a severability clause, the Communications Act contains both the TCPA’s provisions and a severability clause. The Court also explained, that even if no severability clause existed, the Court assumes that an unconstitutional provision is severable from the remaining statute. Applying these standards in a straightforward fashion, the majority held the proper remedy was to sever the provision.
As a final matter, the court rebutted the plaintiffs’ argument that severing only the government-debt exception would prohibit more speech, causing more First Amendment harm. The majority recognized more speech would be restrained by severing only the exception, but that it was entirely constitutional for Congress to ban all robocalls under the First Amendment. Thus, the Court affirmed the Fourth Circuit’s prior ruling.