The Supreme Court has ruled that a law previously allowing robocalls to cell phones is unconstitutional and that the calls must stop. While six justices agreed the current law is not constitutional, they very much disagreed on why and what the remedies should be. The result, for now, is that no robocalls may be made to cell phones. The Supreme Court is still releasing opinions from its most recent term into July — something it hasn’t done since 1996.
The American Association of Political Consultants “won” the case against the government, but there’s a good reason why the word is in quotes. The consultants did not get what they wanted. They sued to be able to use robocalls to reach Americans with political messaging. On Monday, July 6, the Supreme Court ruled that, while the law forbidding them from doing so was unjust, the remedy does not involve allowing the consultants to make these calls.
Okay for Me, But Not for Thee
In 1991, federal law banned robocalls to cell phones. Then in 2015, President Barack Obama signed into law an amendment that allowed the government to make collection calls. That’s no small number of calls, as Justice Neil Gorsuch reminded us:
“Today, unsolicited calls are permitted if they are ‘made solely to collect a debt owed to or guaranteed by the United States.’ That leaves robocallers no shortage of material. The government backs millions upon millions of loans — student loans, home mortgages, veterans’ loans, farm loans, business loans. When it comes to student loans alone, the government guarantees more than $150 billion in private loans involving over 7 million individuals. And, to be clear, it’s not just the government that’s allowed to call about these loans. Private lenders and debt collectors are free to send in the robots too, so long as the debt at issue is ultimately guaranteed by the government.”
The political consultants sued for the right to make their own calls. They argued, in part, that their proposed political speech — and no matter how maddening those calls are, they are certainly political speech — must be afforded greater protection than student-loan dunning calls. They won. Instead of allowing others to exercise free speech in the form of robocalls, however, a majority of justices ruled that the 2015 amendment to the law will be eliminated, and we will return to no robocalls to cell phones for any reason.
Losing While Winning
The opinions in Barr v. American Association of Political Consultants went like this: Justices John Roberts, Clarence Thomas, Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh agreed that the law was an impermissible violation of the First Amendment. Gorsuch and Thomas thought the appropriate remedy would be to issue an injunction against enforcing the law. Kavanaugh’s opinion noted that Gorsuch’s reasoning would allow a flood of robocalls: “That approach would disrespect the democratic process, through which the people’s representatives have made crystal clear that robocalls must be restricted.”
Having none of it, Gorsuch replied, “Having to tolerate unwanted speech imposes no cognizable constitutional injury on anyone; it is life under the First Amendment, which is almost always invoked to protect speech some would rather not hear.”
A 7-2 majority that said the appropriate remedy was to restrict the collection calls rather than allow unrestricted robocalls. They ruled that the law will revert to its status before the unconstitutional changes Obama signed. Gorsuch and Thomas were the only two members of the Court who said the First Amendment guarantees the right to make these sorts of calls. Gorsuch wrote, “What is the point of fighting this long battle, through many years and all the way to the Supreme Court, if the prize for winning is no relief at all?”
The First Amendment does not exist to support popular opinions or speakers for the obvious reason that popular speech will be hard to suppress. Congress has a limited choice now: Either everybody gets to make the calls or no one does.
Read more from Scott D. Cosenza.