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Monday, July 06, 2020

Notes on Barr v. AAPC

There is a lot in the Court's decision in Barr v. AAPC, declaring invalid the government-debt exception (enacted in 2015) to the ban on robocalls to cell phones (enacted in 1991), but holding that the remedy is to allow government to enforce the original 1991 ban on everyone. Kavanaugh writes for the Chief, Thomas, and Alito that the exception is unconstitutionally content-based and does not survive strict scrutiny and for the Chief and Alito that the remedy is to level everyone down. Sotomayor finds the law constitutionally invalid under the less-rigid scrutiny proposed by Breyer and severable. Breyer writes for Ginsburg and Kagan that the law is constitutionally valid under less-rigid scrutiny, but that, since everyone else disagrees, they agree that the 2015 exception is severable. Justice Gorsuch agrees the 2015 exception invalid on a different analysis, but that the proper remedy is prohibiting enforcement of the entire robocall ban. So one 6-3 on the First Amendment issue, a largely different 7-2 on severability.

• The First Amendment portion is Reed redux. Five Justices (Kavanaugh's four + Gorsuch) say that the statute is content-based and requires strict scrutiny because it distinguishes based on subject matter--robocalls about government debt are ok, everything else (non-government debt, political speech, sales calls about baseball tickets) are prohibited. Breyer continues the squishier balancing he proposed in Bartnicki and then in Reed. The First Amendment is designed to protect political speech, public forums, and an airing for all viewpoints, but is not designed to interfere with commercial regulatory schemes that incidentally affect speech and that do not affect meaningful public discourse. Such incidental regulation should be subject to a less-rigid balancing of the seriousness of the speech-related harm, the importance of countervailing government objectives, the likelihood the regulation will achieve those objectives, and whether there are less-restrictive ways of doing so. Applying that, Breyer argues that the speech disadvantaged (non-government debt collection) is commercial and highly regulated, while the government has an interest in protecting the public fisc by enabling collection of government debts through calls made solely to collect government debt.

• Sotomayor argues the statute fails even under that test, because the government has not explained how collection calls about government debt are less intrusive and less privacy-invading than collection calls about private debt.

• Breyer (and the government) remain concerned that the application of strict scrutiny threatens regulatory schemes such as the SEC, FDCPA, and FDA, all of which limit what regulated entities can say in order to protect consumers. Kavanaugh dismisses the slippery-slope arguments, insisting that "courts have generally been able to distinguish impermissible content-based speech restrictions from tradition or ordinary economic regulation of economic activity."

• People have argued that the severability analysis shows that it is unlikely that the Court will declare invalid the entire ACA next Term, even if the individual mandate is invalid as a tax. Perhaps, although do not underestimate irrational hatred for the ACA. Plus, this case was as much a leveling case as a severability case--the 2015 exception was invalid because it treated the plaintiffs less favorably than collectors of government debt. The majority resolves that problem by "leveling down," leaving the 2015 exception unenforceable and placing all speakers in the same position of being unable to use robocalls. Gorsuch (joined by Thomas in this part) rejects this, arguing that the Court fails to remedy the violation of the plaintiffs' First Amendment rights--they want to be able to speak, not to have others prevented from speaking. The result of the case is that no one can make robo calls, which does not give the plaintiffs anything and harms non-plaintiffs.

The point of departure is what provision is invalid in this case. For Gorsuch, it was the original 1991 ban, whose invalidity is shown by the 2015 exception. Thus, the proper remedy for the violation is to make the 1991 ban unenforceable against the plaintiffs. But that, Kavanaugh argues, harms a different group of strangers--the millions of people who will be bombarded by robocalls.

• Kavanaugh's opinion includes a discursive footnote engaging Thomas on the  what it means to "invalidate" a law and what courts should do. I save that for a second post.

Posted by Howard Wasserman on July 6, 2020 at 01:35 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


But if a district court imposes this remedy (assume it is not appealed), is anyone really bound by it in a new case? Suppose someone is sued/charged for making robocalls to collect government-backed debt, can't he defend himself by pointing to the exception in the law? Unless his defense is foreclosed by the first district court ruling, how did the first plaintiffs gain any redress?

Posted by: Jr | Jul 7, 2020 8:07:58 AM

Re, the district court: Yes, it could have reached this result and imposed this remedy, for the reasons you note--the Court does not have grester remedial power than the district court, only the power to make the judgment Article III final.

You are right about the result. But this is what happens whenever the court levels down. In Morales-Sanatana from a few years ago, the petitioner won, but the end result was that it was harder for everyone to establish citizenship.

No, there is no standing to ensure that government is prosecuting such cases. Gorsuch is right in this respect: The plaintiffs challenged the general ban; the only role for the exception was to show under-inclusiveness. But the general ban without the exception was valid.

Posted by: Howard Wasserman | Jul 6, 2020 10:16:07 PM

Important and interesting ruling indeed. Many complications here. Just worth to note, the most fundamental angel presented by Justice Kavanugh:

And it is, that basic and fundamental notion, that free speech, meant first of all, not letting the government itself ( and the Congress) to restrict and limit free speech. Yet, in our case, I quote:

The First Amendment isn’t so neutral. It pushes, always, in one direction: against governmental restrictions on speech. Yet, 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.

End of quotation:

So, instead of being restricted, the government itself, tool liberty, to make such robocalls at the back of private entities, while, not showing even, compelling interest for such restriction.


Posted by: El roam | Jul 6, 2020 3:10:53 PM

I look forward to part 2.

I find the result interesting: The government is the losing party, yet ends up with the power to enforce more rules, while the winning plaintiffs get nothing.

Would a district court have had power to achive this result on its own? If the answer is no, this seems odd, because the SC is not supposed to have any extra remedial powers in an individual case. If the answer is yes, how would one handle contradictorary district court judgements on the matter.

Gorsuch's point about Article III standing is also interesting. Would the plaintiffs had standing to ask solely for removal of the debt exception? Will they have standing afterwards to make sure the government is prosecuting such cases? If not, how it is a remedy they get exactly?

Posted by: Jr | Jul 6, 2020 1:57:43 PM

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