The Supreme Court on Monday upheld a nearly 30-year-old ban on automated calls to cellphones despite concerns that it violates the First Amendment.
To fix that constitutional problem, the justices ruled that a recent exception to the law allowing robocalls to people who owe the government money must be eliminated. The decision was written by Associate Justice Brett Kavanaugh, with many justices agreeing only in part.
The ruling brought to a close an unusual case in which neither side sought what the court deemed the most acceptable result. Political consultants and pollsters wanted the original law declared unconstitutional, while the government wanted both the ban and the government-debt exception upheld.
Instead, as Associate Justice Neil Gorsuch quipped during oral argument in May, the result was “the irony of a First Amendment challenge leading to the suppression of more speech as a remedy.” He was the only justice to dissent from the entire judgment.
Still, that seemed preferable in the end to tossing out a popular law protecting cellphones from unwanted calls.
“Americans passionately disagree about many things. But they are largely united in their disdain for robocalls,” Kavanaugh wrote. By severing the exception for government debt because it made the ban unconstitutional, he said, “plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.”
Kavanaugh noted the federal government get “a staggering number of complaints about robocalls – 3.7 million complaints in 2019 alone. The states likewise field a constant barrage of complaints.”
During oral argument in May, Roman Martinez, the lawyer representing political challengers to the law, noted the exception “exposes 60 million Americans to unlimited calls to collect more than $4.2 trillion in debt. Those are the kinds of calls consumers hate the most.”
But while Martinez wanted the entire law struck down, the high court’s ruling emerged as the least objectionable way to uphold its free speech precedents against content-based discrimination. If debts to the government merit an unwanted call, some justices reasoned, then political calls would have to be permitted.
“If you just take a peek, just a peek, at the real world here, this is one of the more popular laws on the books, because people don’t like cellphone robocalls,” Kavanaugh said in May. “That seems just common sense.”
Still, Gorsuch said the better course would have been to declare the cellphone ban unconstitutional and allow both debt collectors and political operatives to call freely.
“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,” he wrote.
