October 20, 2020

Volume X, Number 294

October 19, 2020

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A Dark Day for Free Speech: Supreme Court Upholds Statute Supposedly Preventing Robocalls–But at what Cost?

This last weekend our nation celebrated–if that word can rightly be used given the current turmoil– its Independence Day.

First among the freedoms we hold dear is the right to speak without fear of legal consequences. See it says so right here in the First Amendment:

Congress shall make no law… abridging the freedom of speech…

Seems pretty black and white. Congress shall make no law.. etc.

In today’s Supreme Court decision of Barr v AAPC, however, the Supreme Court not only upheld the broadest restriction on Constitutionally-protected speech in our nation’s history, it did so in a manner that will help shut down future challenges to statutes that abridge speech–creating an entirely new First Amendment doctrine in the meantime. And that is a really big deal.

As dark as this decision is for free speech–more on that below–many will cheer the decision as a victory. The “Supreme Court Pushes Back Against Robocalls”–the headlines will read.

In truth the Supreme Court breathed new life into a bad statute–the Telephone Consumer Protection Act (“TCPA”)–that does little (probably nothing) to prevent the sort of robocalls consumers hate most. That’s because the TCPA is not effective against overseas call centers and fly-by-night scammers– the ones causing all the trouble. Those sorts of calls are stopped by the FCC’s far more effective call blocking and authentication rules. These technological solutions have cut down massively on robocalls–in a way the TCPA never achieved.

But the perception that the TCPA prevents robocalls undoubtedly guided the court’s analysis of the statute and generated the court’s stunning conclusion–that although the statute is unconstitutional as written it can still be applied against the party challenging it.

How is that possible you might ask?

The TCPA–unlike most restrictions on speech–is written extremely broadly. (Again it is the most broad restriction on speech Congress has ever devised.) Rather than target specific speech for its illicit or undesired content it targets ALL speech made in a certain manner. And while it might seem counter intuitive that a broad restriction on speech is superior to a narrow one under the First Amendment–again the First Amendment is supposed to prevent Congress from restricting any speech– the Barr court focused on the statute’s great and even breadth as one of its most palatable attributes.

The problem with the TCPA–from the Supreme Court’s perspective–is not its tremendous breadth but with a tiny sliver of calls that Congress did allow– debt collection calls on government-backed debt. And while the average American might think it is a good thing for the government to be able to call folks that owe it money, this uneven restriction on speech triggered strict scrutiny– a very intense form of Court review that is supposed to prevent intrusions on our freedom.

So far so good actually. First Amendment doctrine has long held that where a statute restricts speech unevenly–in a so-called “content specific” sort of way– the Supreme Court is to apply strict scrutiny to that statute and strike it down. That way our freedoms enshrined in the Bill of Rights are protected from government intrusion–Independence Day and all that.

Except, in Barr, the Supreme Court did not strike down the TCPA the way it was supposed to. Instead–focusing on the importance of preventing robocalls– the Supreme Court struck down solely the exemption permitting speech, and expanded the TCPA to cover even more speech.

What this means is that the party challenging the statute as unconstitutional won– but still lost. Instead of having its own speech deemed legal, it only got to see other speakers also lose their voice.

This, the Barr court tells us in a footnote, is ok because many times private speakers will want other private speakers to be quiet–such as when one wishes to silence a business rival. But the fact that private speakers may wish to silence one another certainly shouldn’t justify allowing the government so silence all of us–and that is exactly what the Court’s decision accomplishes.

Specifically, Barr introduces a new First Amendment doctrine and new parlance to go with it: introducing the First Amendment “equal treatment” case. In such cases, the Supreme Court holds for the first time ever in Barr, the proponent of free speech is not actually entitled to free speech–as the First Amendment seems to assure–rather he/she/it is entitled only to as much speech as everyone else gets. No more, no less.

While “evenness” has long been the touchstone of review in Equal Protection challenges, the First Amendment has traditionally operated differently. The goal in a free speech challenge is not to “even out” speech–it is to set it free. Its not to assure that the muzzle I wear is the muzzle you wear–it is to take off the blasted muzzle.

Sadly, in Barr the Supreme Court left the muzzle on and handed the government a big victory in doing so. Indeed, it follows from Barr that the government can safely restrict all speech to everyone so long as it does so evenly. And where Congress chooses to cherry-pick favored speech and remove it from a broad restriction the worst that can happen is that the Congressional permission slip will be revoked and everyone will be silenced again.

This is a really bad day for free speech folks. A day that saw the creation of an entirely new First Amendment doctrine that appears developed specifically to justify denying speech to a successful First Amendment challenger. A doctrine that perversely (yet expressly) converts the First Amendment from a tool designed to protect speech into a tool that can only be used by private actors to take away speech from other private actors. Simply remarkable.

Against this backdrop, the impact AAPC has on the actual TCPA is almost immeasurably small. The ruling is extremely narrow and tightly-confined. It does not move the needle on TCPA jurisprudence at all except to expand the statute to reach collectors of government-backed debt again. (And it remains to be seen whether this expansion can be applied retroactively.)

But for all of us as Americans the decision in Barr should send a chill down our collective spines. The Supreme Court has sacrificed some of our most cherished rights and ideals today in the name of upholding a bad statute that does not even do what it was intended to do–all in the name of preventing robocalls. And while it is true that we all hate unwanted robocalls, I would like to think we all still love our freedom of speech a little bit more.

Then again, we all live on our echo chambers these days–listening only to the views/news/opinions we want to hear and discounting all others. (A phenomenon that has absolutely nothing to do with the state of the Nation more broadly I am sure.) So perhaps then, here in 2020 Americans have finally had enough of free speech and prefer simply to be left alone.

If so, Barr is certainly the Supreme Court ruling for you.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 188

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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

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