Barr v. AAPC: Kavanaugh is ready to defend Free Speech by banning every-bodies speech equally.

Protest tegen vieze wc’s op school / Protest against dirty toilets at school — Nationaal Archief

Barr v. American Assn. of Political Consultants, Inc., is a SCOTUS case brought by the American Association of Political Consultants, an industry trade group, and others that desired to use robocalls to make political ads, challenging the exemption unconstitutionally favored debt collection speech over political speech. Plaintiffs challenged the constitutionality of certain provisions in the Telephone Consumer Protection Act of 1991 (TCPA) banning the use of robocalls made to cell phones, where the ban was subject to exemptions for government debt collection. As a remedy, the curt struct the exception but let the prohibition standing (i.e. the court cured a violation of Free Speech by outlawing additional speech.)

This SCOTUS decision is a wolf in sheep’s clothing.

We should have expected the decision in this case to stink….

We should have expected the decision to stink since this is the notorious case in which one of the Supreme Court (SCOTUS) justices audibly flushed a toilet during the live-streamed oral arguments in May 2020 (oral arguments were temporally being held remotely during the coronavirus.) The investigation on which Justice is the “flusher” is ongoing. Still, we can exonerate notorious RBG (my hero) as she joins the call from a hospital bed. My money is on Kavanaugh being the flusher, as he did his part to flush down the toilet the reputation of the Court even before he joined it by perjuring himself in front of the Senate during his live-televised nomination hearing (#IBelieveDrFord)

This case in a nutshell….

Image from page 102 of “Journeys through Bookland : a new and original plan for reading applied to the world’s best literature for children” (1922) — IABI

This case resulted from a challenge to the constitutionality of the Telephone Consumer Protection Act of 1991 (TCPA), which requires express consent for robocalls. Plaintiffs argued that the TCPA prohibition on robocalls, which exempted calls made to collect debts to the Government, was an unconstitutional content-based violation of the right to Free Speech.

Looking at the government-debt exception in context, we all can see that the practical effect of the exception, taken together with the rest of the statute, is to put non-government debt collectors at a disadvantage.

The Court had three choices:

(1) find no violation (hint-hint “editors choice”);

(2) find a violation and strike the TCPA prohibition altogether (curing a violation of Free Speech by enabling more speech); or

(3) find a violation and strike only the exemption but leave the prohibition in place (curing a violation of Free Speech by restricting speech.)

SCOTUS went for option (3).

“A generally applicable robocall restriction would be permissible under the First Amendment. Extending the robocall restriction to those robocalls raises no First Amendment problem.”

Barr v. AAPC – Kavanough writing for the majority

However, how Kavanaugh et al. got to the outcome, in this case, is quite problematic:

In all honesty, it could have been worse. They could have gone for option (2) which would have been a significant loss for privacy advocates, as it would potentially lead to deeming unconstitutional laws requiring organizations to obtain consent before calling or texting cellphones.

Yup, you got that right: Kavanouhg’s remedy for a free speech violation is less speech free for everyone.

About the other two wolves… (Gorsuch and Thomas)

Thomas (who made it clear to all of us in his dissenting opinion in [Planned Parenthood v. Casey](https://en.wikipedia.org/wiki/PlannedParenthoodv.Casey), 505 U.S. 833 (1992) that “Roe was wrongly decided, and that it can and should be overruled”) makes number two in my top list of bad choices for Justices, right after Kavanaugh. Since birds of a feather flock together, Thomas also got to where he is by [perjuring himself in his nomination ](https://en.wikipedia.org/wiki/ClarenceThomasSupremeCourt_nomination)hearing (#IBelieveAnitaHill). Still, for some reason, no one can explain he has chosen to be silent ever since. Also, he may be a groper (#IMayBelieveMoiraSmith)

The silver lining for me with Thomas is his strong stance for State rights and his consistent rejection of the Dormant Commerce Clause (but that is a different topic.)

Thomas joined forces with Gorsuch, who wrote a partially dissenting opinion that mostly aligns with Kavanaugh’s approach: TCPA regulates speech – restrictions on speech based on content must always satisfy “strict scrutiny” – the government-debt collection exception is therefore unconstitutional.

Thomas and Gorsuch part ways with Kavanaugh regarding the remedy and go for a version of the option (2). Thomas's remedy would have been to grant an injunction preventing the enforcement of the whole TCPA prohibition against the plaintiffs only (which we should assume would have led to multiple other plaintiffs requesting the same remedy?.). It seems Gorsuch wanted TCPA just gone, which is intellectually consistent but quite radical.

Kavanaugh did respond to Gorsuch’s dissent in the majority opinion by stating the proposed remedy of injunctive relief, plus stare decisis, “would in effect allow all robocalls to cell phones — notwithstanding Congress’s decisive choice to prohibit most robocalls to cell phones. That is not a judicially modest approach but is more of a wolf in sheep’s clothing.”

Surprisingly, Kavanaugh, I am with you on this one (except that I do not think Gorsuch is a “real wolf” like Thomas and you, Mr. pot calling the kettle black.)

June 2020

In re: Gorsuch’s dissenting opinion on Barr v. AAPC

Dear Gorsuch:

Thanks, but no thanks.

I have nothing against you personally but this red-ridding hood already gets enough annoying robocalls from China and is not thrilled with the idea of being bombarded with pre-recorded Trump calls this fall (I already get those in my landline BTW).

And sorry, but stating in your partial dissent that somehow cheaper unlimited calling plans are supposed to make me feel better about getting calls I do not want in the first place does not really change anything. Cricket Wireless does not quite work in my area and I am currently in #COVID19 lock-down.

Here is the other thing Gorsuch: I really do not want to see good privacy laws in the US invalidated by your radical interpretation of the First Amendment.

So, respectfully, I am going to take a pass on your intellectual integrity this time around.

Kind regards,

Me.

P.D.: Have you and Thomas ever wondered how the free apps offering to block robocalls that you propose as a solution in your dissent get monetized? Because some of us privacy advocates do, you know…

My take on how this case should have gone:

Image from page 58 of “What happened then stories” (1918) / IABI

I believe SCOTUS should stop applying strict scrutiny across the board to all content-based restrictions and start administering its First Amendment content-regulation doctrine with a dash of common sense.

When the content in question is commercial speech, applying intermediate scrutiny should get us to the right outcome and entirely avoid the absurdity of solving for a violation of the First Amendment by restraining more speech.

“I believe SCOTUS should stop applying strict scrutiny across the board to all content-based restrictions and start administering its First Amendment content-regulation doctrine with a dash of common sense.”

So let’s reserve strict scrutiny for what it was meant to do: set a strong presumption of unconstitutionality to protect the laws that directly implicate the interest the First Amendment was created to defend (like, let’s say, banning the #IBelieveDrFord and #IBeliveAnitaHill hashtags from protecting the reputation of a couple of very influential werewolves.)

Justices Breyer, Ginsburg, and Kagan's dissenting opinions (which I analyze below) go through the path I suggest.

Alas, so long as the likes of Kavanaugh (under whose logic unconstitutional restraint on speech can be cured by outlawing more speech) or Gorsuch (who for some strange reason must dig robocalls) write majority opinions for the Court, I am afraid Barr v. AAPC is not the last wolf in sheep’s clothing SCOTUS is going to hand out.

...WARNING: Stop reading here if you are not a legal nerd…

CASE ANALYSIS

Background on the case

Passed by Congress and signed by President Franklin Roosevelt in 1934, the Communications Act is codified in Title 47 of the U. S. Code. The Telephone Consumer Protection Act(TCPA) was enacted in 1991 under George H. W. Bush's presidency to amend the Communications Act by adding the robocall restriction, which is codified at §227(b)(1)(A)(iii) of Title 47. In addition, the Bipartisan Budget Act of 2015 amended the Communications Act during the Obama presidency by adding the government-debt exception to the TCPA, which is codified along with the robocall restriction at §227(b)(1)(A)(iii) of Title 47.

In plain English, the TCPA prohibits almost all robocalls to cell phones absent opt-in consent.

NOTE: The TCPA also restrains calls to residential homes, but plaintiffs did not challenge the TCPA’s separate restriction on robocalls to home phones. (See 47 U. S. C. §227(b)(1)(B).)

The lower court case

The American Association of Political Consultants (AAPC) and three other nonprofit political organizations(the plaintiffs in this case) wanted to make political robocalls to cell phones without complying with TCPA (i.e., without obtaining prior consent.) However, since plaintiffs were not in the business of collecting government debt, 47 U. S. C. §227(b)(1)(A)(iii) prohibited them from making those robocalls without prior explicit consent.

Plaintiffs supported the petition, arguing that the Court of Appeals did not provide enough relief and should have invalidated the 1991 robocall restriction rather than simply invalidating the 2015 government-debt exception. (that is to say, plaintiffs wanted 47 U. S. C. §227(b)(1)(A)(iii) entirely gone, not just edited to eliminate the government dept exception.)

SCOTUS granted certiorari.

## Legal Analysis of the Decision

### MAJORITY OPINION (KAVANAUGH, THOMAS, and ALITO)

###### Image from page 325 of “Animal heroes; being the histories of a cat, a dog, a pigeon, a lynx, two wolves & a reindeer and in elucidation of the same over 200 drawings” (1905) — IABI

The majority’s Constitutional precedent allows the Government to “constitutionally impose reasonable time, place, and manner regulations” on speech. Still, the precedents restrict the Government from discriminating “in the regulation of expression on the basis of the content of that expression.” (Hudgens v. NLRB, 424 U. S. 507, 520 (1976).)

Brett Kavanaugh apparently believes the First Amendment “does not tell us which way to cure the unequal treatment” of speech (really?) and is therefore ready to solve all of our First Amendment problems by making sure every-bodies speech is equally banned.

Then, it goes on to state that, under US constitutional doctrine, content-based laws are subject to the highest form of scrutiny than content-neutral laws (Reed v. Town of Gilbert, 576 U. S. 155, 163–164 and 166 (2015).)

On the initial First Amendment question of whether the robocall restriction, with the government-debt exception, is content-based, it provides the obvious answer (yes, it is content based.)

The defense’s arguments that the restriction was not content-based did not persuade the Court namely that the government-debt exception: (i) discriminated based on who were the speakers (authorized debt collectors); (ii) discriminated based on whether the caller was engaged in a particular economic activity; and (iii) should not be found to be content-based because it singles out debt-collection speech or else all statutes that regulate debt collection (like the Fair Debt Collection Practices Act) are also content based.

The defense conceded during arguments that if the government-debt exception were to be found content-based, it would not satisfy strict scrutiny.

SCOTUS agreed.

“Although collecting government debt is no doubt a worthy goal, the Government concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.”

Barr v. AAPC — Kavanough writing for the majority

Ergo, as a content-based restrain on speech subject to strict scrutiny, the 1995 government-debt collection exception is struck down.

Kavanaugh then asserts that the Communications Act (of which TCPA is an amendment) has contained an express severability clause since 1934 (47 U. S. C. §608) that the Court found squarely applies to both the robocall restriction and the government-debt exception. Even if the provision did not apply, absent a specific anti-severability provision, courts should presume Congress intended provisions to be severable. ( “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional law. If the rule were otherwise, the entire Judiciary Act of 1789 would be invalid as a consequence of Marbury v. Madison.”)

With the government-debt exception severed, “the remainder of the law is capable of functioning independently and thus would be fully operative as a law. Indeed, the remainder of the robocall restriction did function independently and fully operate as a law for 20-plus years before the government-debt exception was added in 2015.”

Then Kavanaugh went on to solve “[o]ne final severability wrinkle,” and there is where things went south really fast….

Citing the dissenting opinion in Williams-Yulee v. Florida Bar, 575 U. S. 433, 470 (2015) (Scalia, J., dissenting), Kavanaugh went on to affirm the “First Amendment is a kind of Equal Protection Clause for ideas.”

“ The implicit premise of that argument is that extending the robocall restriction to debt-collection robocalls would be unconstitutional. But that is wrong. A generally applicable robocall restriction would be permissible under the First Amendment. Extending the robocall restriction to those robocalls raises no First Amendment problem. So the First Amendment does not tell us which way to cure the unequal treatment in this case. Therefore, we apply traditional severability principles. And as we have explained, severing the 2015 government-debt exception cures the unequal treatment and constitutes the proper result under the Court’s traditional severability principles. In short, the correct result in this case is to sever the 2015 government-debt exception and leave in place the longstanding robocall restriction”

Barr v. AAPC — Kavanough writing for the majority

SIDE NOTE: Interestingly, the opinion acknowledges the Government’s asserted interest for the 1991 robocall restriction was consumer privacy and recognized that exceptions to a speech restriction “may diminish the credibility of the government’s rationale for restricting speech in the first place.” (City of Ladue v. Gilleo, 512 U. S. 43, 52 (1994).) However, in this case “Congress’s addition of the government-debt exception in 2015 does not cause us to doubt the credibility of Congress’s continuing interest in protecting consumer privacy.” That would be the case “where a restriction on speech is littered with exceptions that substantially negate the restriction.”

In sum, the Court states t“Congress’s growing interest (as reflected in the 2015 amendment) in collecting government debt does not mean that Congress suddenly lacks a genuine interest in restricting robocalls.”

DISSENTING OPINION (BREYER, RBG, KAGAN)

Gear Meat Company :Prime quality. The Gear Meat Preserving and Freezing Co. of New Zealand Ld. Wellington, N.Z. [Sheep. 1880–1890]. / National Library NZ on The Commons

In the view of Breyer, Ginsburg, and Kagan, “there is no basis here to apply “strict scrutiny” based on “content-discrimination.” They maintain that to reflexively treat all content-based distinctions as subject to strict scrutiny regardless of context or practical effect is to engage in an analysis untethered from the First Amendment’s objectives.

Breyer beautifully lays out the values that underline the First Amendment:

“The concept is abstract but simple: “We the People of the United States” have created a government of laws enacted by elected representatives. For our government to remain a democratic republic, the people must be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences. The people must then be able to transmit their resulting views and conclusions to their elected representatives, which they may do directly, or indirectly through the shaping of public opinion. The object of that transmission is to influence the public policy enacted by elected representatives. As this Court has explained, “[t]he First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Meyer v. Grant, 486 U. S. 414, 421 (1988) (internal quotation marks omitted). See generally R. Post, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State 1–25 (2012).”

Since this case primarily involves commercial speech (debt collection), the dissent applies intermediate scrutiny analysis to conclude (after doing the analysis) that the government-debt exception does not violate the First Amendment (and, by extension, neither does TCPA). The harm in the government-debt exclusion, as the dissenting opinion states, “is related not to public efforts to develop ideas or transmit them to the Government, but to the Government’s response to those efforts, which here takes the form of highly regulated commercial communications. Moreover, there is an important justification for that harm, and the exception is narrowly tailored to further that goal. Given those facts, the government-debt exception should survive intermediate First Amendment scrutiny”

“[…] the free marketplace of ideas is not simply a debating society for expressing thought in a vacuum. It is in significant part an instrument for “bringing about . . . political and social chang[e].” Meyer, 486 U. S., at 421. The representative democracy that “We the People” have created insists that this be so. See Sorrell v. IMS Health Inc., 564 U. S. 552, 583 (2011) (BREYER, J., dissenting). See generally, e.g., B. Neuborne, Madison’s Music: On Reading the First Amendment (2015).”

Barr v. AAPC — Breyer Dissent

This approach aligns with the SCOTUS tradition of providing heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issue (Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182, 186– 187 (1999) (heightened protection for “core political speech”); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829–830 (1995) (government discrimination based on “particular views taken by speakers on a subject” presumptively unconstitutional); Boos v. Barry, 485 U. S. 312, 321 (1988) (“content-based restriction[s] on political speech in a public forum” subject to “most exacting scrutiny” (emphasis deleted)); Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45–46 (1983) (content-based exclusions in public forums subject to strict scrutiny).)

FINAL NOTES:

  1. Sotomayor concluded that the government-debt exception fails under intermediate scrutiny and is severable from the rest of the Act.

  2. For Gorsuch and Thomas's dissent analysis, see the initial section)

Resources

[Barr v. American Association of Political Consultants](https://www.supremecourt.gov/opinions/19pdf/19-6312d93.pdf)_

Barr v. AAPC – Kavanough writing for the majority