On Monday, the United States Supreme Court blocked the use of robocalls to collect government-backed debt, closing an exception Congress enacted in 2015 to a decades-old ban on unwanted and intrusive automated cellphone-dialing campaigns.
“Americans passionately disagree about many things,” Justice Brett Kavanaugh wrote for the court’s plurality. “But they are largely united in their disdain for robocalls.”
That unity didn’t extend, however, to the justices, themselves, in the rationale for invalidating the debt collecting exception. While seven justices ultimately agreed to strike it down, they divided over the best way to resolve a constitutional challenge to the robocall law.
In 1991, Congress banned most robocalls, but in 2015 added the exception for debt collectors working on government-backed loans.
The American Association of Political Consultants, whose members viewed robocalls as a cost effective way to promote candidates and drum up contributions, seized on that exception to mount a First Amendment challenge. It argued the government impermissibly was favoring a single type of its own speech and therefore, the entire ban on all robocalls was unconstitutional.
Last year, a federal appeals court in Richmond, Va., agreed that it was unconstitutional to favor government debt collection above all other forms of unwanted speech inflicted upon people with cell phones. Its remedy, however, was simply to cross out the 2015 exception, not the result the political consultants wanted.
They appealed to the Supreme Court, as did the Justice Department, seeking to reinstate the debt collection exception. Justice Kavanaugh wrote that Congress couldn’t be assumed to have lost interest in consumer privacy simply because it decided to give government a new tool to collect debt.
“That is false dichotomy,” he wrote, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. “The answer to this either/or question is ‘both.’ Congress is interested both in collecting government debt and in protecting consumer privacy.”
But while “collecting government debt is no doubt a worthy goal,” the plurality concludes it was unconstitutional to favor speech of that kind over others.
Justice Neil Gorsuch, in dissent, joined in part by Justice Thomas, said the correct remedy was to create another exception for political robocalls, however unwelcome consumers might find it.
“A constitutional right would be needed to protect popular speakers; the First Amendment does its real work in giving voice to those a majority would silence,” he explained.
The Supremes decision will probably be welcomed by most people.