In a decision that divided the court, Judge Brett Kavanaugh writes that an exception to the ban created by Congress is unconstitutional under the First Amendment, and that the general ban must remain in effect.
“Americans passionately disagree about many things. But they are largely united in their disdain for automatic calls,” writes Kavanaugh. “The Federal Government receives a staggering number of complaints about automatic calls … States also have a constant barrage of complaints.”
Automatic calls to cell phones were banned by Congress under the Telephone Consumer Protection Act of 1991, which limits the use of automatic dialing systems and prerecorded voice messages to protect Americans from intrusion. The law imposes a liability of up to $ 1,500 for any call or text message made or sent without express prior consent. An exception was added to the law in 2015 that exempts government debt collection services from that law.
Kavanaugh wrote that while invalidating the TCPA was one of the plaintiffs’ primary concerns in the case, invalidating the 2015 exception puts the speech of political consultants on an equal footing with the collection of government debt. According to the ruling, both forms of expression are prohibited in automatic calls to mobile phones.
“Separation from the 2015 government debt exception cures unequal treatment and constitutes the appropriate outcome in accordance with the Court’s traditional principles of separability,” wrote Kavanaugh.
The case was closely followed in political circles due to the potential impact on political publicity.
A federal appeals court last year held that the government’s debt waiver violated the First Amendment because it banned some content-based calls, but allowed others. The court said, however, that the provision could be cut and the rest of the law could remain in effect. This ruling was confirmed by the Supreme Court.
The legal doctrine used by Kavanaugh in the opinion, known as separability, in which Kavanaugh decided not to invalidate the entire law while ruling an unconstitutional provision, could have broad implications for future cases known to the court.
“The result is not especially surprising given the uphill battle the government faced in defending such a content-based speech constraint. But the implications of the Court’s decision to save the rest of the statute are potentially quite significant,” he said. Steve Vladeck, CNN Supreme Judicial analyst and professor at the University of Texas School of Law.
“The way the courts should deal with the rest of a statute when a provision is unconstitutional is at the core of Obamacare’s great challenge that judges must hear next fall,” added Vladeck. “Today’s decision suggests that only the judges [Clarence] Thomas and [Neil] Gorsuch sympathizes with the Texas argument in that case that the entire ACA should be removed. “
The case entered national consciousness during oral arguments in June about what happened in the phone call between lawyers and judges.
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