In the interest of equity, the court won’t let government-contracted debt collectors make automated calls, either.
On Monday, the U.S. Supreme Court both upheld and bolstered a law banning telemarketing robocalls.
According to USA Today, the justices’ ruling maintains a nearly 30-year old ban on automated calls to cell phones, despite marketers’ concerns that such prohibitions violate the First Amendment. In order to keep robocalls illegal, the court made an important exemption: in ensuring uniformity, the justices struck down a 2015 provision that the federal government was fighting to keep.
That provision, says USA Today, allowed the government—and its contractors—to employ robocalls when attempting to collect debts from everyday Americans.
The 7-2 decision—characterized as “unusual” by USA Today—may not sit well with either plaintiff telemarketers or the government. That’s because, while telemarketing lobbyists had hoped to strike the robocall ban down in its entirety, government attorneys wanted to preserve both the legislation and their exemption therefrom.
Writing on behalf of several members of the majority, Justice Brett Kavanaugh discarded the government exception to preserve the law’s intent and application. He also noted “the irony of a First Amendment challenge leading to the suppression of more speech as a remedy.”
Judge Brett Kavanaugh; image by U.S. Court of Appeals for the District of Columbia Circuit [Public domain], via Wikimedia Commons.“Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment,” Kavanaugh wrote. Despite the court’s continuing prohibition on robocalls, Justice Kavanaugh—somewhat ironically—noted that political groups’ speech “is now treated equally with debt-collection speech.”
“Americans passionately disagree about many things. But they are largely united in their disdain for robocalls,” Kavanaugh wrote, explaining that the exception’s removal ensures that “the tail does not wag the dog.”
“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Kavanaugh explained.
Kavanaugh was also keen to point out Americans’ disdain for government-sponsored robocalls: in 2019 alone, more than 3.7 million complaints were filed against the government for automated phone calls.
“If you take a peek, just a peek, at the real world here, this is one of the more popular laws on the books, because people just don’t like cellphone robocalls,” Kavanaugh said earlier this year. “That just seems common sense.”
But Kavanaugh’s conservative colleague, Justice Neil Gorsuch—another Trump appointee—had argued for the law’s revocation in full. In his dissent, Gorsuch argued that it would be more constitutional to allow both telemarketers and the federal government to use robocalls.
“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,” Gorsuch wrote.
Regardless, robocalls remain as much of a dinnertime menace today as they did years ago. According to Reuters, automated calls are, in fact, on the rise—despite the legislation prohibiting their use.
YouMail, “a company that provides a service to block automated calls,” told Reuters that Americans received a staggering 58.5 billion robocalls in 2019—a significant 22% increase over 2018.
Interestingly, the court’s ruling was praised by Federal Communications Commission Chairman Ajit Pai.
“Thanks to the Supreme Court, the carve-out [exception] is no more,” Pai said in a statement. “Today, the Court found that the last Administration’s attempt to create a special exemption or favored debt collectors was not only bad policy but unconstitutional. I am glad to hear that Americans, who are sick and tired of unwanted robocalls, will now get the relief from federal-debt-collector robocalls they have long deserved.”
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