WASHINGTON – The Supreme Court on Monday upheld a nearly 30-year-old ban on automated calls to cellphones despite concerns that it violates the First Amendment.
To fix that constitutional problem, the justices ruled that a recent exception to the law allowing robocalls to people who owe the government money must be eliminated. The decision was written by Associate Justice Brett Kavanaugh, and several justices agreed only in part.
The ruling brought to a close an unusual case in which neither side sought what the court deemed the most acceptable result. Political consultants and pollsters wanted the original law declared unconstitutional, while the government wanted the ban and the government-debt exception upheld.
Instead, as Associate Justice Neil Gorsuch quipped during oral argument in May, the result was “the irony of a First Amendment challenge leading to the suppression of more speech as a remedy.” He and Associate Justice Clarence Thomas would have given political operatives the exemption they sought.
A majority of justices went in the opposite direction and took away the exemption for debt collection.
“Americans passionately disagree about many things. But they are largely united in their disdain for robocalls,” Kavanaugh wrote. By severing the exception for government debt rather than the entire law, he said, “the tail (one unconstitutional provision) does not wag the dog.”
“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 statute,” Kavanaugh said.
He noted the federal government gets “a staggering number of complaints about robocalls – 3.7 million complaints in 2019 alone. The states likewise field a constant barrage of complaints.”
During oral argument in May, Roman Martinez, the lawyer representing political challengers to the law, noted the exception “exposes 60 million Americans to unlimited calls to collect more than $4.2 trillion in debt. Those are the kinds of calls consumers hate the most.”
Although Martinez wanted his clients to be able to reach cellphones, the high court’s ruling emerged as the least objectionable way to uphold its free speech precedents against content-based discrimination. If debts to the government merit an unwanted call, some justices reasoned, then political calls would have to be permitted.
“If you just take a peek, just a peek, at the real world here, this is one of the more popular laws on the books, because people don’t like cellphone robocalls,” Kavanaugh said in May. “That seems just common sense.”
Associate Justice Stephen Breyer wrote for himself and fellow liberal Justices Ruth Bader Ginsburg and Elena Kagan that the original law and the exception for debt collection pass muster. Given that a majority of justices disagreed on the exception, they agreed it should be severed rather than bring down the entire law with it.
Gorsuch said the better course would have been to declare the cellphone ban unconstitutional because of the exception and allow debt collectors and political operatives to call freely.
He noted that, unlike when the original law was enacted, cellphone owners generally pay monthly fees rather than being charged for outgoing and incoming calls, and they can screen and block unwanted calls.
“Somehow, in the name of vindicating the First Amendment, our remedial course today leads to the unlikely result that not a single person will be allowed to speak more freely and, instead, more speech will be banned,” he wrote.