May 6, 2020 - Technology

Robocallers make First Amendment case at the Supreme Court

Illustration of suited hand holding glass cloche protecting a phone.

Illustration: Eniola Odetunde/Axios

The future of a major nuisance for millions of Americans hangs in the balance Wednesday as the Supreme Court weighs whether federal limits on robocalls are unconstitutional.

Why it matters: A decision barring restrictions on robocalls could open the floodgates to many more than the tens of billions Americans already endure — and expand the treatment of corporate activities and political organizations' expenditures as constitutionally protected speech.

What's happening: As part of its limited spring docket of cases argued via teleconference, the Supreme Court is hearing oral arguments Wednesday in Barr v. American Association of Political Consultants Inc.

  • At issue in the case is a 2015 amendment to the 1991 Telephone Consumer Protection Act (TCPA), the law that places limits on the use of robocalls and is the foundation of all the mechanisms federal regulators have to enforce those limits. The 2015 change exempts callers that are collecting debts owed to the U.S. government, such as federal student and housing loans.
  • The question before the court is whether that carve-out violates the First Amendment by establishing a content-based test for what calls can and can't be made. The Fourth Circuit Court of Appeals last year ruled that it did and said the exemption should be stripped out from the law.

Yes, but: If a majority on the Supreme Court agrees that the TCPA as amended is unconstitutional, it could also take aim at the statute instead of the exemption, hollowing or tossing out the 1991 law and regulations that depend on it.

  • In other words, such a ruling would broadly treat robocalls as protected speech that can't be abridged by the government.

Throwing out the law would be an extreme outcome. But some parties weighing in on the case are urging the court to take broader slashes at TCPA.

  • Facebook in an amicus brief asked the court to toss out severe restrictions TCPA places on the use of autodialers, a central piece of the law. The company said the law's definition of what constitutes an autodialer is squishy, arguably applying to all modern smartphones and opening the door for any number of unconstitutional limits on speech.
  • The U.S. Chamber of Commerce made a similar argument in its own brief, criticizing both the autodialer restrictions and limits placed on calls made to cell phones. "The remedy for a First Amendment violation is more speech, not less," the group wrote. "If the TCPA violates the First Amendment, the prohibition must go, not the exemption."

Justice Brett Kavanaugh, for one, has shown sympathy in the past for an expansive reading of the First Amendment as superseding laws meant to restrict corporations' behavior.

  • While still on the D.C. Circuit, Kavanaugh authored the dissent to the 2017 ruling that upheld the (since-reversed) Obama-era net neutrality rules. One of his two core arguments was that the rules abridged the First Amendment rights of ISPs by overriding their editorial discretion over content that passes through their networks.
  • More broadly, the 2010 Citizens United decision, citing the First Amendment rights of corporations and private organizations, lifted many restrictions on political ad spending.

Our thought bubble: Most Americans want fewer robocalls in their lives. Today's laws aren't very effective at limiting them, but striking them down would likely lead to even more calls.

  • In that case, winners would include political groups aiming to spend big ahead of the November election, and conservatives who champion the rights of corporations and the idea that spending money is a form of speech.
  • Losers would be those Americans who want to be left alone.
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