Today, the Supreme Court issued its decision in Barr v. American Association of Political Consultants, which addressed the constitutionality of the Telephone Consumer Protection Act (TCPA).  Although the Court splintered in its reasoning—producing four separate opinions—the justices nevertheless coalesced around two core conclusions: (1) the TCPA’s exception for government debt collection calls is unconstitutional, and (2) the exception can be severed from the rest of the TCPA.  Six justices determined that the TCPA’s government-debt exception violates the First Amendment, and seven justices concluded that the exception is severable from the rest of the statute.  The end result is that the government-debt exception is invalid but the rest of the TCPA—including its general prohibition on automated calls and text messages to mobile numbers—remains intact.  The narrow scope of this ruling suggests that it may have limited practical effect for most parties.

As we previously explained, the TCPA, as originally enacted in 1991, restricts the use of an automatic telephone dialing system (ATDS) to transmit calls or texts to mobile numbers without the recipient’s prior express consent (the ATDS prohibition).  In 2015, Congress amended the TCPA to exempt from the ATDS prohibition calls made to collect a debt owed to the United States.  The question before the Supreme Court was whether the government-debt exception violates the First Amendment and, if so, whether the proper remedy is to sever the exception—leaving intact the rest of the TCPA—or invalidate the entire ATDS prohibition.

Justice Kavanaugh, writing for a plurality of the Court, held that the TCPA’s government-debt exception is unconstitutional, but that it is severable from the rest of the TCPA.  Justice Kavanaugh’s opinion reasons that the government-debt exception is a content-based speech restriction and that strict scrutiny applies as a result. The opinion goes on to hold that the government-debt exception cannot meet that rigorous standard—and is thus unconstitutional.

Next, Justice Kavanaugh applied the Court’s traditional severability principles to find that the government-debt exception is severable from the rest of the TCPA.  Justice Kavanaugh reasoned that the Communications Act—of which the TCPA is a part—has an express severability provision, providing that if any part of the statute is held to be invalid, it is to be severed from the remaining provisions.  Justice Kavanaugh also found that the presumption of severability—which generally applies in the absence of an express severability provision—required that the government-debt exception be severed from the rest of the TCPA.

Justice Breyer, joined by Justices Ginsburg and Kagan, dissented in part, reasoning that the government-debt exception does not violate the First Amendment.  Justice Breyer would have applied a lower level of constitutional scrutiny—intermediate scrutiny rather than strict scrutiny—arguing that strict scrutiny does not apply to all content-based speech distinctions.  However, recognizing that a majority of the Court held the government-debt exception to be unconstitutional, Justice Breyer concurred in the plurality’s holding that the exception is severable from the rest of the TCPA.

Justice Sotomayor also would have applied a lower form of constitutional scrutiny, but concurred in the plurality’s opinion, reasoning that the TCPA’s government-debt exception violates the First Amendment even when intermediate scrutiny is applied.  Justice Sotomayor also concurred in the plurality’s holding that the government-debt exception is severable from the rest of the TCPA.

Justice Gorsuch concurred in part and dissented in part, agreeing that strict scrutiny applies and that the government-debt exception does not satisfy this standard.  However, Justice Gorsuch—joined in this respect by Justice Thomas—would have declined to engage in a severability analysis, in part because the plurality’s remedy (severing the government-debt exception from the rest of the TCPA) “fails to help the plaintiffs.”  Instead, Justice Gorsuch would have awarded the plaintiffs in this case an injunction preventing the TCPA from being applied to them.