Barr v. American Assn. of Political Consultants, Inc. , 207 L. Ed. 2d 784 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BARR, ATTORNEY GENERAL, ET AL. v. AMERICAN
ASSOCIATION OF POLITICAL CONSULTANTS,
INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 19–631. Argued May 6, 2020—Decided July 6, 2020
In response to consumer complaints, Congress passed the Telephone
Consumer Protection Act of 1991 (TCPA) to prohibit, inter alia, almost
all robocalls to cell phones. 47 U. S. C. §227(b)(1)(A)(iii). In 2015, Con-
gress amended the robocall restriction, carving out a new government-
debt exception that allows robocalls made solely to collect a debt owed
to or guaranteed by the United States. 129 Stat. 588. The American
Association of Political Consultants and three other organizations that
participate in the political system filed a declaratory judgment action,
claiming that §227(b)(1)(A)(iii) violated the First Amendment. The
District Court determined that the robocall restriction with the gov-
ernment-debt exception was content-based but that it survived strict
scrutiny because of the Government’s compelling interest in collecting
debt. The Fourth Circuit vacated the judgment, agreeing that the robo-
call restriction with the government-debt exception was a content-
based speech restriction, but holding that the law could not withstand
strict scrutiny. The court invalidated the government-debt exception
and applied traditional severability principles to sever it from the ro-
bocall restriction.
Held: The judgment is affirmed.
923 F. 3d 159, affirmed.
JUSTICE KAVANAUGH, joined by THE CHIEF JUSTICE, JUSTICE
THOMAS, and JUSTICE ALITO, concluded in Part II that the 2015 gov-
ernment-debt exception violates the First Amendment. Pp. 6–9.
(a) The Free Speech Clause provides that government generally “has
no power to restrict expression because of its message, its ideas, its
2 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Syllabus
subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408
U. S. 92, 95. Under this Court’s precedents, content-based laws are
subject to strict scrutiny. See Reed v. Town of Gilbert, 576 U. S. 155,
165. Section 227(b)(1)(A)(iii)’s robocall restriction, with the govern-
ment-debt exception, is content based because it favors speech made
for the purpose of collecting government debt over political and other
speech. Pp. 6–7.
(b) The Government’s arguments for deeming the statute content-
neutral are unpersuasive. First, §227(b)(1)(A)(iii) does not draw dis-
tinctions based on speakers, and even if it did, that would not “auto-
matically render the distinction content neutral.” Reed, 576 U. S., at
170. Second, the law here focuses on whether the caller is speaking
about a particular topic and not, as the Government contends, simply
on whether the caller is engaged in a particular economic activity. See
Sorrell v. IMS Health Inc., 564 U. S. 552, 563–564. Third, while “the
First Amendment does not prevent restrictions directed at commerce
or conduct from imposing incidental burdens on speech,” this law “does
not simply have an effect on speech, but is directed at certain content
and is aimed at particular speakers.” Id., at 567.
(c) As the Government concedes, the robocall restriction with the
government-debt exception cannot satisfy strict scrutiny. The Govern-
ment has not sufficiently justified the differentiation between govern-
ment-debt collection speech and other important categories of robocall
speech, such as political speech, issue advocacy, and the like. Pp. 7–9.
JUSTICE KAVANAUGH, joined by THE CHIEF JUSTICE and JUSTICE
ALITO, concluded in Part III that the 2015 government-debt exception
is severable from the underlying 1991 robocall restriction. The TCPA
is part of the Communications Act, which has contained an express
severability clause since 1934. Even if that clause did not apply to the
exception, the presumption of severability would still apply. See, e.g.,
Free Enterprise Fund v. Public Company Accounting Oversight Bd.,
561 U. S. 477. The remainder of the law is capable of functioning in-
dependently and would be fully operative as a law. Severing this rel-
atively narrow exception to the broad robocall restriction fully cures
the First Amendment unequal treatment problem and does not raise
any other constitutional problems. Pp. 9–24.
JUSTICE SOTOMAYOR concluded that the government-debt exception
fails under intermediate scrutiny and is severable from the rest of the
Act. Pp. 1–2.
JUSTICE BREYER, joined by JUSTICE GINSBURG and JUSTICE KAGAN,
would have upheld the government-debt exception, but given the con-
trary majority view, agreed that the provision is severable from the
rest of the statute. Pp. 11–12.
JUSTICE GORSUCH concluded that content-based restrictions on
Cite as: 591 U. S. ____ (2020) 3
Syllabus
speech are subject to strict scrutiny, that the Telephone Consumer
Protection Act’s rule against cellphone robocalls is a content-based re-
striction, and that this rule fails strict scrutiny and therefore cannot
be constitutionally enforced. Pp. 1–4.
KAVANAUGH, J., announced the judgment of the Court and delivered
an opinion, in which ROBERTS, C. J., and ALITO, J., joined, and in which
THOMAS, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion
concurring in the judgment. BREYER, J., filed an opinion concurring in
the judgment with respect to severability and dissenting in part, in
which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed an opinion
concurring in the judgment in part and dissenting in part, in which
THOMAS, J., joined as to Part II.
Cite as: 591 U. S. ____ (2020) 1
Opinion
Opinion ofAVANAUGH
of K the Court, J.
NOTICE: This opinion is subject to formal resvision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–631
_________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,
PETITIONERS v. AMERICAN ASSOCIATION OF
POLITICAL CONSULTANTS, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[July 6, 2020]
JUSTICE KAVANAUGH announced the judgment of the
Court and delivered an opinion, in which THE CHIEF
JUSTICE and JUSTICE ALITO join, and in which JUSTICE
THOMAS joins as to Parts I and II.
Americans passionately disagree about many things. But
they are largely united in their disdain for robocalls. The
Federal Government receives a staggering number of com-
plaints about robocalls—3.7 million complaints in 2019
alone. The States likewise field a constant barrage of com-
plaints.
For nearly 30 years, the people’s representatives in Con-
gress have been fighting back. As relevant here, the Tele-
phone Consumer Protection Act of 1991, known as the
TCPA, generally prohibits robocalls to cell phones and
home phones. But a 2015 amendment to the TCPA allows
robocalls that are made to collect debts owed to or guaran-
teed by the Federal Government, including robocalls made
to collect many student loan and mortgage debts.
This case concerns robocalls to cell phones. Plaintiffs in
this case are political and nonprofit organizations that want
2 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
to make political robocalls to cell phones. Invoking the First
Amendment, they argue that the 2015 government-debt ex-
ception unconstitutionally favors debt-collection speech
over political and other speech. As relief from that uncon-
stitutional law, they urge us to invalidate the entire 1991
robocall restriction, rather than simply invalidating the
2015 government-debt exception.
Six Members of the Court today conclude that Congress
has impermissibly favored debt-collection speech over polit-
ical and other speech, in violation of the First Amendment.
See infra, at 6–9; post, at 1–2 (SOTOMAYOR, J., concurring
in judgment); post, at 1, 3 (GORSUCH, J., concurring in judg-
ment in part and dissenting in part). Applying traditional
severability principles, seven Members of the Court con-
clude that the entire 1991 robocall restriction should not be
invalidated, but rather that the 2015 government-debt ex-
ception must be invalidated and severed from the remain-
der of the statute. See infra, at 10–25; post, at 2
(SOTOMAYOR, J., concurring in judgment); post, at 11–12
(BREYER, J., concurring in judgment with respect to sever-
ability and dissenting in part). As a result, plaintiffs still
may not make political robocalls to cell phones, but their
speech is now treated equally with debt-collection speech.
The judgment of the U. S. Court of Appeals for the Fourth
Circuit is affirmed.
I
A
In 1991, Congress passed and President George H. W.
Bush signed the Telephone Consumer Protection Act. The
Act responded to a torrent of vociferous consumer com-
plaints about intrusive robocalls. A growing number of tel-
emarketers were using equipment that could automatically
dial a telephone number and deliver an artificial or prere-
corded voice message. At the time, more than 300,000 so-
licitors called more than 18 million Americans every day.
Cite as: 591 U. S. ____ (2020) 3
Opinion of KAVANAUGH, J.
TCPA, §2, ¶¶3, 6, 105 Stat. 2394, note following 47 U. S. C.
§227. Consumers were “outraged” and considered robocalls
an invasion of privacy “regardless of the content or the ini-
tiator of the message.” ¶¶6, 10.
A leading Senate sponsor of the TCPA captured the zeit-
geist in 1991, describing robocalls as “the scourge of modern
civilization. They wake us up in the morning; they inter-
rupt our dinner at night; they force the sick and elderly out
of bed; they hound us until we want to rip the telephone
right out of the wall.” 137 Cong. Rec. 30821 (1991).
In enacting the TCPA, Congress found that banning ro-
bocalls was “the only effective means of protecting tele-
phone consumers from this nuisance and privacy invasion.”
TCPA §2, ¶12. To that end, the TCPA imposed various re-
strictions on the use of automated telephone equipment.
§3(a), 105 Stat. 2395. As relevant here, one restriction pro-
hibited “any call (other than a call made for emergency pur-
poses or made with the prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice” to “any telephone number
assigned to a paging service, cellular telephone service, spe-
cialized mobile radio service, or other radio common carrier
service, or any service for which the called party is charged
for the call.” Id., at 2395–2396 (emphasis added). That pro-
vision is codified in §227(b)(1)(A)(iii) of Title 47 of the U. S.
Code.
In plain English, the TCPA prohibited almost all ro-
bocalls to cell phones.1
——————
1 The robocall restriction, as implemented by the Federal Communica-
tions Commission, bars both automated voice calls and automated text
messages. See In re Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14115 (2003). The
robocall restriction applies to “persons,” which does not include the Gov-
ernment itself. See 47 U. S. C. §153(39). Congress has also authorized
the FCC to promulgate regulatory exceptions to the robocall restriction.
See §227(b)(2)(C). The FCC has authorized various exceptions over the
years, such as exceptions for package-delivery notifications and certain
4 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
Twenty-four years later, in 2015, Congress passed and
President Obama signed the Bipartisan Budget Act. In ad-
dition to making other unrelated changes to the U. S. Code,
that Act amended the TCPA’s restriction on robocalls to cell
phones. It stated:
“(a) IN GENERAL.—Section 227(b) of the Communica-
tions Act of 1934 (47 U. S. C. 227(b)) is amended—
(1) in paragraph (1)—
(A) in subparagraph (A)(iii), by inserting ‘, unless
such call is made solely to collect a debt owed to or guar-
anteed by the United States’ after ‘charged for the
call.’ ” 129 Stat. 588.2
In other words, Congress carved out a new government-
debt exception to the general robocall restriction.
The TCPA imposes tough penalties for violating the ro-
bocall restriction. Private parties can sue to recover up to
$1,500 per violation or three times their actual monetary
losses, which can add up quickly in a class action.
§227(b)(3). States may bring civil actions against ro-
bocallers on behalf of their citizens. §227(g)(1). And the
——————
healthcare-related calls. In this case, plaintiffs do not separately chal-
lenge the validity of the FCC’s regulatory exceptions.
2 After the 2015 amendment, §227(b)(1) now provides:
“It shall be unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United
States—
(A) to make any call (other than a call made for emergency purposes
or made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded
voice—
. . . . .
(iii) to any telephone number assigned to a paging service, cellular tel-
ephone service, specialized mobile radio service, or other radio common
carrier service, or any service for which the called party is charged for
the call, unless such call is made solely to collect a debt owed to or guar-
anteed by the United States.” (Emphasis added.)
Cite as: 591 U. S. ____ (2020) 5
Opinion of KAVANAUGH, J.
Federal Communications Commission can seek forfeiture
penalties for willful or repeated violations of the statute.
§503(b).
B
Plaintiffs in this case are the American Association of Po-
litical Consultants and three other organizations that par-
ticipate in the political system. Plaintiffs and their mem-
bers make calls to citizens to discuss candidates and issues,
solicit donations, conduct polls, and get out the vote. Plain-
tiffs believe that their political outreach would be more ef-
fective and efficient if they could make robocalls to cell
phones.3 But because plaintiffs are not in the business of
collecting government debt, §227(b)(1)(A)(iii) prohibits
them from making those robocalls.
Plaintiffs filed a declaratory judgment action against the
U. S. Attorney General and the FCC, claiming that
§227(b)(1)(A)(iii) violated the First Amendment. The U. S.
District Court for the Eastern District of North Carolina de-
termined that the robocall restriction with the government-
debt exception was a content-based speech regulation,
thereby triggering strict scrutiny. But the court concluded
that the law survived strict scrutiny, even with the content-
based exception, because of the Government’s compelling
interest in collecting debt.
The U. S. Court of Appeals for the Fourth Circuit vacated
the judgment. American Assn. of Political Consultants, Inc.
v. FCC, 923 F. 3d 159 (2019). The Court of Appeals agreed
with the District Court that the robocall restriction with the
government-debt exception was a content-based speech re-
striction. But the court held that the law could not with-
stand strict scrutiny and was therefore unconstitutional.
The Court of Appeals then applied traditional severability
——————
3 Plaintiffs have not challenged the TCPA’s separate restriction on ro-
bocalls to home phones. See 47 U. S. C. §227(b)(1)(B).
6 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
principles and concluded that the government-debt excep-
tion was severable from the underlying robocall restriction.
The Court of Appeals therefore invalidated the govern-
ment-debt exception and severed it from the robocall re-
striction.
The Government petitioned for a writ of certiorari be-
cause the Court of Appeals invalidated part of a federal
statute—namely, the government-debt exception. Plain-
tiffs supported the petition, arguing from the other direc-
tion that the Court of Appeals did not go far enough in
providing relief and should have invalidated the entire 1991
robocall restriction rather than simply invalidating the
2015 government-debt exception. We granted certiorari.
589 U. S. ___ (2020).
II
Ratified in 1791, the First Amendment provides that
Congress shall make no law “abridging the freedom of
speech.” Above “all else, the First Amendment means that
government” generally “has no power to restrict expression
because of its message, its ideas, its subject matter, or its
content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95
(1972).
The Court’s precedents allow the government to “consti-
tutionally impose reasonable time, place, and manner reg-
ulations” on speech, but the precedents restrict the govern-
ment from discriminating “in the regulation of expression
on the basis of the content of that expression.” Hudgens v.
NLRB, 424 U. S. 507, 520 (1976). Content-based laws are
subject to strict scrutiny. See Reed v. Town of Gilbert, 576
U. S. 155, 163–164 (2015). By contrast, content-neutral
laws are subject to a lower level of scrutiny. Id., at 166.
Section 227(b)(1)(A)(iii) generally bars robocalls to cell
phones. Since the 2015 amendment, the law has exempted
robocalls to collect government debt. The initial First
Amendment question is whether the robocall restriction,
Cite as: 591 U. S. ____ (2020) 7
Opinion of KAVANAUGH, J.
with the government-debt exception, is content-based. The
answer is yes.
As relevant here, a law is content-based if “a regulation
of speech ‘on its face’ draws distinctions based on the mes-
sage a speaker conveys.” Reed, 576 U. S., at 163. That de-
scription applies to a law that “singles out specific subject
matter for differential treatment.” Id., at 169. For exam-
ple, “a law banning the use of sound trucks for political
speech—and only political speech—would be a content-
based regulation, even if it imposed no limits on the politi-
cal viewpoints that could be expressed.” Ibid.; see, e.g., Si-
mon & Schuster, Inc. v. Members of N. Y. State Crime Vic-
tims Bd., 502 U. S. 105, 116 (1991); Arkansas Writers’
Project, Inc. v. Ragland, 481 U. S. 221, 229–230 (1987);
Widmar v. Vincent, 454 U. S. 263, 265, 276–277 (1981);
Carey v. Brown, 447 U. S. 455, 459–463 (1980); Erznoznik
v. Jacksonville, 422 U. S. 205, 211–212 (1975); Mosley, 408
U. S., at 95–96.
Under §227(b)(1)(A)(iii), the legality of a robocall turns on
whether it is “made solely to collect a debt owed to or guar-
anteed by the United States.” A robocall that says, “Please
pay your government debt” is legal. A robocall that says,
“Please donate to our political campaign” is illegal. That is
about as content-based as it gets. Because the law favors
speech made for collecting government debt over political
and other speech, the law is a content-based restriction on
speech.
The Government advances three main arguments for
deeming the statute content-neutral, but none is persua-
sive.
First, the Government suggests that §227(b)(1)(A)(iii)
draws distinctions based on speakers (authorized debt col-
lectors), not based on content. But that is not the law in
front of us. This statute singles out calls “made solely to
collect a debt owed to or guaranteed by the United States,”
not all calls from authorized debt collectors.
8 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
In any event, “the fact that a distinction is speaker based”
does not “automatically render the distinction content neu-
tral.” Reed, 576 U. S., at 170; Sorrell v. IMS Health Inc.,
564 U. S. 552, 563–564 (2011). Indeed, the Court has held
that “ ‘ laws favoring some speakers over others demand
strict scrutiny when the legislature’s speaker preference re-
flects a content preference.’ ” Reed, 576 U. S., at 170 (quot-
ing Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622,
658 (1994)).
Second, the Government argues that the legality of a ro-
bocall under the statute depends simply on whether the
caller is engaged in a particular economic activity, not on
the content of speech. We disagree. The law here focuses
on whether the caller is speaking about a particular topic.
In Sorrell, this Court held that a law singling out pharma-
ceutical marketing for unfavorable treatment was content-
based. 564 U. S., at 563–564. So too here.
Third, according to the Government, if this statute is con-
tent-based because it singles out debt-collection speech,
then so are statutes that regulate debt collection, like the
Fair Debt Collection Practices Act. See 15 U. S. C. §1692 et
seq.4 That slippery-slope argument is unpersuasive in this
case. As we explained in Sorrell, “the First Amendment
does not prevent restrictions directed at commerce or con-
duct from imposing incidental burdens on speech.” 564
U. S., at 567. The law here, like the Vermont law in Sorrell,
“does not simply have an effect on speech, but is directed at
certain content and is aimed at particular speakers.” Ibid.The Government’s concern is understandable, but the
courts have generally been able to distinguish impermissi-
ble content-based speech restrictions from traditional or or-
——————
4 This opinion uses the term “debt-collection speech” and “debt-collec-
tion robocalls” as shorthand for government-debt collection speech and
robocalls.
Cite as: 591 U. S. ____ (2020) 9
Opinion of KAVANAUGH, J.
dinary economic regulation of commercial activity that im-
poses incidental burdens on speech. The issue before us
concerns only robocalls to cell phones. Our decision today
on that issue fits comfortably within existing First Amend-
ment precedent. Our decision is not intended to expand ex-
isting First Amendment doctrine or to otherwise affect tra-
ditional or ordinary economic regulation of commercial
activity.
In short, the robocall restriction with the government-
debt exception is content-based. Under the Court’s prece-
dents, a “law that is content based” is “subject to strict scru-
tiny.” Reed, 576 U. S., at 165. The Government concedes
that it cannot satisfy strict scrutiny to justify the govern-
ment-debt exception. We agree. The Government’s stated
justification for the government-debt exception is collecting
government debt. Although collecting government debt is
no doubt a worthy goal, the Government concedes that it
has not sufficiently justified the differentiation between
government-debt collection speech and other important cat-
egories of robocall speech, such as political speech, charita-
ble fundraising, issue advocacy, commercial advertising,
and the like.5
——————
5 In his scholarly separate opinion, JUSTICE BREYER explains how he
would apply freedom of speech principles. But the Court’s longstanding
precedents, which we carefully follow here, have not adopted that ap-
proach. In essence, therefore, JUSTICE BREYER argues for overruling sev-
eral of the Court’s First Amendment cases, including the recent 2015 de-
cision in Reed v. Town of Gilbert, 576 U. S. 155 (2015). Before overruling
precedent, the Court usually requires that a party ask for overruling, or
at least obtains briefing on the overruling question, and then the Court
carefully evaluates the traditional stare decisis factors. Here, no party
has asked for overruling, and JUSTICE BREYER’s opinion does not analyze
the usual stare decisis factors. JUSTICE BREYER’s opinion therefore dis-
counts both the Court’s precedent and the Court’s precedent on prece-
dent.
10 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
III
Having concluded that the 2015 government-debt excep-
tion created an unconstitutional exception to the 1991 ro-
bocall restriction, we must decide whether to invalidate the
entire 1991 robocall restriction, or instead to invalidate and
sever the 2015 government-debt exception. Before we apply
ordinary severability principles, we must address plaintiffs’
broader initial argument for why the entire 1991 robocall
restriction is unconstitutional.
A
Plaintiffs correctly point out that the Government’s as-
serted interest for the 1991 robocall restriction is consumer
privacy. But according to plaintiffs, Congress’s willingness
to enact the government-debt exception in 2015 betrays a
newfound lack of genuine congressional concern for con-
sumer privacy. As plaintiffs phrase it, the 2015 exception
“undermines the credibility” of the Government’s interest
in consumer privacy. Tr. of Oral Arg. 38. Plaintiffs further
contend that if Congress no longer has a genuine interest
in consumer privacy, then the underlying 1991 robocall re-
striction is no longer justified (presumably under any level
of heightened scrutiny) and is therefore now unconstitu-
tional.
Plaintiffs’ argument is not without force, but we ulti-
mately disagree with it. It is true that the Court has recog-
nized that exceptions to a speech restriction “may diminish
the credibility of the government’s rationale for restricting
speech in the first place.” City of Ladue v. Gilleo, 512 U. S.
43, 52 (1994). But here, Congress’s addition of the govern-
ment-debt exception in 2015 does not cause us to doubt the
credibility of Congress’s continuing interest in protecting
consumer privacy.
After all, the government-debt exception is only a slice of
the overall robocall landscape. This is not a case where a
Cite as: 591 U. S. ____ (2020) 11
Opinion of KAVANAUGH, J.
restriction on speech is littered with exceptions that sub-
stantially negate the restriction. On the contrary, even af-
ter 2015, Congress has retained a very broad restriction on
robocalls. The pre-1991 statistics on robocalls show that a
variety of organizations collectively made a huge number of
robocalls. And there is no reason to think that the incen-
tives for those organizations—and many others—to make
robocalls has diminished in any way since 1991. The con-
tinuing robocall restriction proscribes tens of millions of
would-be robocalls that would otherwise occur every day.
Congress’s continuing broad prohibition of robocalls amply
demonstrates Congress’s continuing interest in consumer
privacy.
The simple reality, as we assess the legislative develop-
ments, is that Congress has competing interests. Con-
gress’s growing interest (as reflected in the 2015 amend-
ment) in collecting government debt does not mean that
Congress suddenly lacks a genuine interest in restricting
robocalls. Plaintiffs seem to argue that Congress must be
interested either in debt collection or in consumer privacy.
But that is a false dichotomy, as we see it. As is not infre-
quently the case with either/or questions, the answer to this
either/or question is “both.” Congress is interested both in
collecting government debt and in protecting consumer pri-
vacy.
Therefore, we disagree with plaintiffs’ broader initial ar-
gument for holding the entire 1991 robocall restriction un-
constitutional.
B
Plaintiffs next focus on ordinary severability principles.
Applying those principles, the question before the Court is
whether (i) to invalidate the entire 1991 robocall re-
striction, as plaintiffs want, or (ii) to invalidate just the
2015 government-debt exception and sever it from the re-
mainder of the statute, as the Government wants.
12 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
We agree with the Government that we must invalidate
the 2015 government-debt exception and sever that excep-
tion from the remainder of the statute. To explain why, we
begin with general severability principles and then apply
those principles to this case.
1
When enacting a law, Congress sometimes expressly ad-
dresses severability. For example, Congress may include a
severability clause in the law, making clear that the uncon-
stitutionality of one provision does not affect the rest of the
law. See, e.g., 12 U. S. C. §5302; 15 U. S. C. §78gg; 47
U. S. C. §608. Alternatively, Congress may include a non-
severability clause, making clear that the unconstitutional-
ity of one provision means the invalidity of some or all of
the remainder of the law, to the extent specified in the text
of the nonseverability clause. See, e.g., 4 U. S. C. §125; note
following 42 U. S. C. §300aa–1; 94 Stat. 1797.
When Congress includes an express severability or non-
severability clause in the relevant statute, the judicial in-
quiry is straightforward. At least absent extraordinary cir-
cumstances, the Court should adhere to the text of the
severability or nonseverability clause. That is because a
severability or nonseverability clause leaves no doubt about
what the enacting Congress wanted if one provision of the
law were later declared unconstitutional. A severability
clause indicates “that Congress did not intend the validity
of the statute in question to depend on the validity of the
constitutionally offensive provision.” Alaska Airlines, Inc.
v. Brock, 480 U. S. 678, 686 (1987). And a nonseverability
clause does the opposite.
On occasion, a party will nonetheless ask the Court to
override the text of a severability or nonseverability clause
on the ground that the text does not reflect Congress’s “ac-
tual intent” as to severability. That kind of argument may
Cite as: 591 U. S. ____ (2020) 13
Opinion of KAVANAUGH, J.
have carried some force back when courts paid less atten-
tion to statutory text as the definitive expression of Con-
gress’s will. But courts today zero in on the precise statu-
tory text and, as a result, courts hew closely to the text of
severability or nonseverability clauses. See Seila Law LLC
v. Consumer Financial Protection Bureau, ante, at 33 (plu-
rality opinion); cf. Milner v. Department of Navy, 562 U. S.
562, 569–573 (2011).6
Of course, when enacting a law, Congress often does not
include either a severability clause or a nonseverability
clause.
In those cases, it is sometimes said that courts applying
severability doctrine should search for other indicia of con-
gressional intent. For example, some of the Court’s cases
declare that courts should sever the offending provision un-
less “the statute created in its absence is legislation that
Congress would not have enacted.” Alaska Airlines, 480
U. S., at 685. But experience shows that this formulation
often leads to an analytical dead end. That is because
courts are not well equipped to imaginatively reconstruct a
prior Congress’s hypothetical intent. In other words, ab-
sent a severability or nonseverability clause, a court often
cannot really know what the two Houses of Congress and
the President from the time of original enactment of a law
would have wanted if one provision of a law were later de-
clared unconstitutional.
The Court’s cases have instead developed a strong pre-
——————
6 When Congress enacts a law with a severability clause and later adds
new provisions to that statute, the severability clause applies to those
new provisions to the extent dictated by the text of the severability
clause. Likewise, when Congress has not included a severability clause
in initial legislation, Congress can subsequently enact a severability
clause that applies to the existing statute to the extent dictated by the
text of the later-added severability clause. In both scenarios, the text of
the severability clause remains central to the severability inquiry.
14 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
sumption of severability. The Court presumes that an un-
constitutional provision in a law is severable from the re-
mainder of the law or statute. For example, in Free Enter-
prise Fund v. Public Company Accounting Oversight Bd.,
the Court set forth the “normal rule”: “Generally speaking,
when confronting a constitutional flaw in a statute, we try
to limit the solution to the problem, severing any problem-
atic portions while leaving the remainder intact.” 561 U. S.
477, 508 (2010) (internal quotation marks omitted); see also
Seila Law, ante, at 32 (same). In Regan v. Time, Inc., the
plurality opinion likewise described a “presumption” in “fa-
vor of severability” and stated that the Court should “re-
frain from invalidating more of the statute than is neces-
sary.” 468 U. S. 641, 652–653 (1984).
The Court’s power and preference to partially invalidate
a statute in that fashion has been firmly established since
Marbury v. Madison. There, the Court invalidated part of
§13 of the Judiciary Act of 1789. 1 Cranch 137, 179–180
(1803). The Judiciary Act did not contain a severability
clause. But the Court did not proceed to invalidate the en-
tire Judiciary Act. As Chief Justice Marshall later ex-
plained, if any part of an Act is “unconstitutional, the pro-
visions of that part may be disregarded while full effect will
be given to such as are not repugnant to the constitution of
the United States.” Bank of Hamilton v. Lessee of Dudley,
2 Pet. 492, 526 (1829); see also Dorchy v. Kansas, 264 U. S.
286, 289–290 (1924) (“A statute bad in part is not neces-
sarily void in its entirety. Provisions within the legislative
power may stand if separable from the bad”); Loeb v. Co-
lumbia Township Trustees, 179 U. S. 472, 490 (1900) (“one
section of a statute may be repugnant to the Constitution
without rendering the whole act void”).
From Marbury v. Madison to the present, apart from
some isolated detours mostly in the late 1800s and early
1900s, the Court’s remedial preference after finding a pro-
vision of a federal law unconstitutional has been to salvage
Cite as: 591 U. S. ____ (2020) 15
Opinion of KAVANAUGH, J.
rather than destroy the rest of the law passed by Congress
and signed by the President. The Court’s precedents reflect
a decisive preference for surgical severance rather than
wholesale destruction, even in the absence of a severability
clause.
The Court’s presumption of severability supplies a work-
able solution—one that allows courts to avoid judicial poli-
cymaking or de facto judicial legislation in determining just
how much of the remainder of a statute should be invali-
dated.7 The presumption also reflects the confined role of
the Judiciary in our system of separated powers—stated
otherwise, the presumption manifests the Judiciary’s re-
spect for Congress’s legislative role by keeping courts from
unnecessarily disturbing a law apart from invalidating the
provision that is unconstitutional. Furthermore, the pre-
sumption recognizes that plaintiffs who successfully chal-
lenge one provision of a law may lack standing to challenge
other provisions of that law. See Murphy v. National Colle-
giate Athletic Assn., 584 U. S. ___, ___–___ (2018) (THOMAS,
J., concurring) (slip op., at 5–6).
Those and other considerations, taken together, have
steered the Court to a presumption of severability. Apply-
ing the presumption, the Court invalidates and severs un-
constitutional provisions from the remainder of the law ra-
ther than razing whole statutes or Acts of Congress. Put in
common parlance, the tail (one unconstitutional provision)
——————
7 If courts had broad license to invalidate more than just the offending
provision, a reviewing court would have to consider what other provi-
sions to invalidate: the whole section, the chapter, the statute, the public
law, or something else altogether. Courts would be largely at sea in mak-
ing that determination, and usually could not do it in a principled way.
Here, for example, would a court invalidate all or part of the Bipartisan
Budget Act of 2015 rather than all or part of the 1991 TCPA? After all,
that 2015 Bipartisan Budget Act, not the 1991 TCPA, added the consti-
tutionally problematic government-debt exception. That is the kind of
free-wheeling policy question that the Court’s presumption of severabil-
ity avoids.
16 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
does not wag the dog (the rest of the codified statute or the
Act as passed by Congress). 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. If the rule were
otherwise, the entire Judiciary Act of 1789 would be invalid
as a consequence of Marbury v. Madison.8
Before severing a provision and leaving the remainder of
a law intact, the Court must determine that the remainder
of the statute is “capable of functioning independently” and
——————
8 The term “invalidate” is a common judicial shorthand when the Court
holds that a particular provision is unlawful and therefore may not be
enforced against a plaintiff. To be clear, however, when it “invalidates”
a law as unconstitutional, the Court of course does not formally repeal
the law from the U. S. Code or the Statutes at Large. Instead, in Chief
Justice Marshall’s words, the Court recognizes that the Constitution is a
“superior, paramount law,” and that “a legislative act contrary to the
constitution is not law” at all. Marbury v. Madison, 1 Cranch 137, 177
(1803). The Court’s authority on this front “amounts to little more than
the negative power to disregard an unconstitutional enactment.” Mas-
sachusetts v. Mellon, 262 U. S. 447, 488 (1923).
JUSTICE THOMAS’s thoughtful approach to severability as outlined in
Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___
(2018) (slip op., at 2–6), and Seila Law LLC v. Consumer Financial Pro-
tection Bureau, ante, at 14–24, (joined by JUSTICE GORSUCH in the latter)
would simply enjoin enforcement of a law as applied to the particular
plaintiffs in a case. Under either the Court’s approach or JUSTICE
THOMAS’s approach, an offending provision formally remains on the stat-
ute books (at least unless Congress also formally repeals it). Under ei-
ther approach, the formal remedy afforded to the plaintiff is an injunc-
tion, declaration, or damages. One difference between the two
approaches is this: Under the Court’s approach, a provision is declared
invalid and cannot be lawfully enforced against others. Under JUSTICE
THOMAS’s approach, the Court’s ruling that a provision cannot be en-
forced against the plaintiff, plus executive respect in its enforcement pol-
icies for controlling decisional law, plus vertical and horizontal stare de-
cisis in the courts, will mean that the provision will not and cannot be
lawfully enforced against others. The Court and JUSTICE THOMAS take
different analytical paths, but in many cases, the different paths lead to
the same place.
Cite as: 591 U. S. ____ (2020) 17
Opinion of KAVANAUGH, J.
thus would be “fully operative” as a law. Seila Law, ante,
at 33; see Murphy, 584 U. S., at ___–___ (slip op., at 25–30).
But it is fairly unusual for the remainder of a law not to be
operative.9
2
We next apply those general severability principles to
this case.
Recall how this statute came together. Passed by Con-
gress and signed by President Franklin Roosevelt in 1934,
the Communications Act is codified in Title 47 of the U. S.
Code. The TCPA of 1991 amended the Communications Act
by adding the robocall restriction, which is codified at
§227(b)(1)(A)(iii) of Title 47. The Bipartisan Budget Act of
2015 then amended the Communications Act by adding the
government-debt exception, which is codified along with the
robocall restriction at §227(b)(1)(A)(iii) of Title 47.
Since 1934, the Communications Act has contained an ex-
press severability clause: “If any provision of this chapter or
the application thereof to any person or circumstance is
held invalid, the remainder of the chapter and the applica-
tion of such provision to other persons or circumstances
shall not be affected thereby.” 47 U. S. C. §608 (emphasis
added). The “chapter” referred to in the severability clause
is Chapter 5 of Title 47. And Chapter 5 in turn encom-
passes §151 to §700 of Title 47, and therefore covers §227 of
Title 47, the provision with the robocall restriction and the
government-debt exception.10
——————
9 On occasion, of course, it may be that a particular surrounding or con-
nected provision is not operative in the absence of the unconstitutional
provision, even though the rest of the law would be operative. That sce-
nario may require severance of somewhat more than just the offending
provision, albeit not of the entire law. Courts address that scenario as it
arises.
10 A codifier’s note explains a change in wording from the original Pub-
lic Law: “This chapter, referred to in text, was in the original ‘this Act’,
18 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
Enacted in 2015, the government-debt exception added
an unconstitutional discriminatory exception to the ro-
bocall restriction. The text of the severability clause
squarely covers the unconstitutional government-debt ex-
ception and requires that we sever it.
To get around the text of the severability clause, plaintiffs
point out that the Communications Act’s severability clause
was enacted in 1934, long before the TCPA’s 1991 robocall
restriction and the 2015 government-debt exception. But a
severability clause must be interpreted according to its
terms, regardless of when Congress enacted it. See n. 6,
supra.
Even if the severability clause did not apply to the gov-
ernment-debt provision at issue in this case (or even if there
were no severability clause in the Communications Act), we
would apply the presumption of severability as described
and applied in cases such as Free Enterprise Fund. And
under that presumption, we likewise would sever the 2015
government-debt exception, the constitutionally offending
provision.
With the government-debt exception severed, the re-
mainder of the law is capable of functioning independently
and thus would be fully operative as a law. Indeed, the re-
mainder of the robocall restriction did function inde-
pendently and fully operate as a law for 20-plus years be-
fore the government-debt exception was added in 2015.
The Court’s precedents further support severing the 2015
government-debt exception. The Court has long applied
severability principles in cases like this one, where Con-
gress added an unconstitutional amendment to a prior law.
In those cases, the Court has treated the original, pre-
——————
meaning act June 19, 1934, ch. 652, 48 Stat. 1064, known as the Com-
munications Act of 1934, which is classified principally to this chapter.”
Note following 47 U. S. C. §608.
Cite as: 591 U. S. ____ (2020) 19
Opinion of KAVANAUGH, J.
amendment statute as the “valid expression of the legisla-
tive intent.” Frost v. Corporation Comm’n of Okla., 278
U. S. 515, 526–527 (1929). The Court has severed the “ex-
ception introduced by amendment,” so that “the original
law stands without the amendatory exception.” Truax v.
Corrigan, 257 U. S. 312, 342 (1921).
For example, in Eberle v. Michigan, the Court held that
“discriminatory wine-and-cider amendments” added in
1899 and 1903 were severable from the underlying 1889
state law generally prohibiting the manufacture of alcohol.
232 U. S. 700, 704–705 (1914). In Truax, the Court ruled
that a 1913 amendment prohibiting Arizona courts from is-
suing injunctions in labor disputes was invalid and severa-
ble from the underlying 1901 law authorizing Arizona
courts to issue injunctions generally. 257 U. S., at 341–342.
In Frost, the Court concluded that a 1925 amendment ex-
empting certain corporations from making a showing of
“public necessity” in order to obtain a cotton gin license was
invalid and severable from the 1915 law that required that
showing. 278 U. S., at 525–528. Echoing Marbury, the
Court in Frost explained that an unconstitutional statutory
amendment “is a nullity” and “void” when enacted, and for
that reason has no effect on the original statute. 278 U. S.,
at 526–527 (internal quotation marks omitted).11
Similarly, in 1932, Congress enacted the Federal Kidnap-
ing Act, and then in 1934, added a death penalty provision
to the Act. The death penalty provision was later declared
unconstitutional by this Court. In considering severability,
——————
11 The cases cited in the text above are pre-Erie decisions involving the
constitutionality of state laws. See Erie R. Co. v. Tompkins, 304 U. S. 64(1938). In that era, the Court often treated severability of state laws and
federal laws in the same general way. In the post-Erie era, severability
of state laws can potentially pose different questions than severability of
federal laws. We need not address post-Erie severability of state laws.
See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S.
320, 328–331 (2006); Leavitt v. Jane L., 518 U. S. 137, 139 (1996) (per
curiam) (“Severability is of course a matter of state law”).
20 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
the Court stated that the “law as originally enacted in 1932
contained no capital punishment provision.” United States
v. Jackson, 390 U. S. 570, 586 (1968). And when Congress
amended the Act in 1934 to add the death penalty, “the stat-
ute was left substantially unchanged in every other re-
spect.” Id., at 587–588. The Court found it “difficult to im-
agine a more compelling case for severability.” Id., at 589.
So too here.
In sum, the text of the Communications Act’s severability
clause requires that the Court sever the 2015 government-
debt exception from the remainder of the statute. And even
if the text of the severability clause did not apply here, the
presumption of severability would require that the Court
sever the 2015 government-debt exception from the remain-
der of the statute.
3
One final severability wrinkle remains. This is an equal-
treatment case, and equal-treatment cases can sometimes
pose complicated severability questions.
The “First Amendment is a kind of Equal Protection
Clause for ideas.” Williams-Yulee v. Florida Bar, 575 U. S.
433, 470 (2015) (Scalia, J., dissenting). And Congress vio-
lated that First Amendment equal-treatment principle in
this case by favoring debt-collection robocalls and discrimi-
nating against political and other robocalls.
When the constitutional violation is unequal treatment,
as it is here, a court theoretically can cure that unequal
treatment either by extending the benefits or burdens to
the exempted class, or by nullifying the benefits or burdens
for all. See, e.g., Heckler v. Mathews, 465 U. S. 728, 740
(1984). Here, for example, the Government would prefer to
cure the unequal treatment by extending the robocall re-
striction and thereby proscribing nearly all robocalls to cell
phones. By contrast, plaintiffs want to cure the unequal
treatment by nullifying the robocall restriction and thereby
Cite as: 591 U. S. ____ (2020) 21
Opinion of KAVANAUGH, J.
allowing all robocalls to cell phones.
When, as here, the Court confronts an equal-treatment
constitutional violation, the Court generally applies the
same commonsense severability principles described above.
If the statute contains a severability clause, the Court typ-
ically severs the discriminatory exception or classification,
and thereby extends the relevant statutory benefits or bur-
dens to those previously exempted, rather than nullifying
the benefits or burdens for all. In light of the presumption
of severability, the Court generally does the same even in
the absence of a severability clause. The Court’s precedents
reflect that preference for extension rather than nullifica-
tion. See, e.g., Sessions v. Morales-Santana, 582 U. S. ___,
___ (2017) (slip op., at 25); Califano v. Westcott, 443 U. S.
76, 89–91 (1979); Califano v. Goldfarb, 430 U. S. 199, 202–
204, 213–217 (1977) (plurality opinion); Jimenez v. Wein-
berger, 417 U. S. 628, 637–638 (1974); Department of Agri-
culture v. Moreno, 413 U. S. 528, 529, 537–538 (1973); Fron-
tiero v. Richardson, 411 U. S. 677, 678–679, 690–691 (1973)
(plurality opinion); Welsh v. United States, 398 U. S. 333,
361–367 (1970) (Harlan, J., concurring in result).
To be sure, some equal-treatment cases can raise complex
questions about whether it is appropriate to extend benefits
or burdens, rather than nullifying the benefits or burdens.
See, e.g., Morales-Santana, 582 U. S. ___. For example,
there can be due process, fair notice, or other independent
constitutional barriers to extension of benefits or burdens.
Cf. Miller v. Albright, 523 U. S. 420, 458–459 (1998) (Scalia,
J., concurring in judgment); see generally Ginsburg, Some
Thoughts on Judicial Authority to Repair Unconstitutional
Legislation, 28 Clev. St. L. Rev. 301 (1979). There also can
be knotty questions about what is the exception and what
is the rule. But here, we need not tackle all of the possible
hypothetical applications of severability doctrine in equal-
treatment cases. The government-debt exception is a rela-
tively narrow exception to the broad robocall restriction,
22 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
and severing the government-debt exception does not raise
any other constitutional problems.
Plaintiffs insist, however, that a First Amendment equal-
treatment case is different. According to plaintiffs, a court
should not cure “a First Amendment violation by outlawing
more speech.” Brief for Respondents 34. The implicit prem-
ise of that argument is that extending the robocall re-
striction to debt-collection robocalls would be unconstitu-
tional. But that is wrong. A generally applicable robocall
restriction would be permissible under the First Amend-
ment. Extending the robocall restriction to those robocalls
raises no First Amendment problem. So the First Amend-
ment does not tell us which way to cure the unequal treat-
ment in this case. Therefore, we apply traditional severa-
bility principles. And as we have explained, severing the
2015 government-debt exception cures the unequal treat-
ment and constitutes the proper result under the Court’s
traditional severability principles. In short, the correct re-
sult in this case is to sever the 2015 government-debt ex-
ception and leave in place the longstanding robocall re-
striction.12
4
JUSTICE GORSUCH’s well-stated separate opinion makes
a number of important points that warrant this respectful
response.
JUSTICE GORSUCH suggests that our decision provides
“no relief” to plaintiffs. Post, at 6. We disagree. Plaintiffs
want to be able to make political robocalls to cell phones,
——————
12 As the Government acknowledges, although our decision means the
end of the government-debt exception, no one should be penalized or held
liable for making robocalls to collect government debt after the effective
date of the 2015 government-debt exception and before the entry of final
judgment by the District Court on remand in this case, or such date that
the lower courts determine is appropriate. See Reply Brief 24. On the
other side of the ledger, our decision today does not negate the liability
of parties who made robocalls covered by the robocall restriction.
Cite as: 591 U. S. ____ (2020) 23
Opinion of KAVANAUGH, J.
and they have not received that relief. But the First
Amendment complaint at the heart of their suit was une-
qual treatment. Invalidating and severing the government-
debt exception fully addresses that First Amendment in-
jury.13 JUSTICE GORSUCH further suggests that plaintiffs
may lack standing to challenge the government-debt excep-
tion, because that exception merely favors others. See ibid.But the Court has squarely held that a plaintiff who suffers
unequal treatment has standing to challenge a discrimina-
tory exception that favors others. See Heckler v. Mathews,
465 U. S., at 737–740 (a plaintiff who suffers unequal treat-
ment has standing to seek “withdrawal of benefits from the
favored class”); see also Northeastern Fla. Chapter, Associ-
ated Gen. Contractors of America v. Jacksonville, 508 U. S.
656, 666 (1993) (“The ‘injury in fact’ in an equal protection
case of this variety is the denial of equal treatment result-
ing from the imposition of the barrier, not the ultimate in-
ability to obtain the benefit”).
JUSTICE GORSUCH also objects that our decision today
“harms strangers to this suit” by eliminating favorable
treatment for debt collectors. Post, at 6. But that is neces-
sarily true in many cases where a court cures unequal treat-
ment by, for example, extending a burden or nullifying a
benefit. See, e.g., Morales-Santana, 582 U. S., at ___ (slip
op., at 28) (curing unequal treatment of children born to un-
wed U. S.-citizen fathers by extending a burden to children
of unwed U. S.-citizen mothers); Orr v. Orr, 374 So. 2d 895,
896–897 (Ala. Civ. App. 1979) (extending alimony obliga-
tions to women after a male plaintiff successfully chal-
lenged Alabama’s discriminatory alimony statute in this
——————
13 Plaintiffs suggest that parties will not have incentive to sue if the
cure for challenging an unconstitutional exception to a speech restriction
is to eliminate the exception and extend the restriction. But many indi-
viduals and organizations often have incentive to challenge unequal
treatment of speech, especially when a competitor is regulated less heav-
ily.
24 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of KAVANAUGH, J.
Court).
Moreover, JUSTICE GORSUCH’s approach to this case
would not solve the problem of harming strangers to this
suit; it would just create a different and much bigger prob-
lem. His proposed remedy of injunctive relief, plus stare
decisis, would in effect allow all robocalls to cell phones—
notwithstanding Congress’s decisive choice to prohibit most
robocalls to cell phones. That is not a judicially modest ap-
proach but is more of a wolf in sheep’s clothing. That ap-
proach would disrespect the democratic process, through
which the people’s representatives have made crystal clear
that robocalls must be restricted. JUSTICE GORSUCH’s rem-
edy would end up harming a different and far larger set of
strangers to this suit—the tens of millions of consumers
who would be bombarded every day with nonstop robocalls
notwithstanding Congress’s clear prohibition of those ro-
bocalls.
JUSTICE GORSUCH suggests more broadly that severabil-
ity doctrine may need to be reconsidered. But when and
how? As the saying goes, John Marshall is not walking
through that door. And this Court, in this and other recent
decisions, has clarified and refined severability doctrine by
emphasizing firm adherence to the text of severability
clauses, and underscoring the strong presumption of sever-
ability. The doctrine as so refined is constitutionally well-
rooted, see, e.g., Marbury v. Madison, 1 Cranch 137 (Mar-
shall, C. J.), and can be predictably applied. True, there is
no magic solution to severability that solves every conun-
drum, especially in equal-treatment cases, but the Court’s
current approach as reflected in recent cases such as Free
Enterprise Fund and Seila Law is constitutional, stable,
predictable, and commonsensical.
Cite as: 591 U. S. ____ (2020) 25
Opinion of KAVANAUGH, J.
* * *
In 1991, Congress enacted a general restriction on ro-
bocalls to cell phones. In 2015, Congress carved out an ex-
ception that allowed robocalls made to collect government
debt. In doing so, Congress favored debt-collection speech
over plaintiffs’ political speech. We hold that the 2015 gov-
ernment-debt exception added an unconstitutional excep-
tion to the law. We cure that constitutional violation by
invalidating the 2015 government-debt exception and sev-
ering it from the remainder of the statute. The judgment of
the U. S. Court of Appeals for the Fourth Circuit is af-
firmed.
It is so ordered.
Cite as: 591 U. S. ____ (2020) 1
SOTOMAYOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–631
_________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,
PETITIONERS v. AMERICAN ASSOCIATION OF
POLITICAL CONSULTANTS, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[July 6, 2020]
JUSTICE SOTOMAYOR, concurring in the judgment.
I agree with much of the partial dissent’s explanation
that strict scrutiny should not apply to all content-based
distinctions. Cf. post, at 5–9 (BREYER, J., concurring in
judgment with respect to severability and dissenting in
part). In my view, however, the government-debt exception
in 47 U. S. C. §227(b) still fails intermediate scrutiny be-
cause it is not “narrowly tailored to serve a significant gov-
ernmental interest.” Ward v. Rock Against Racism, 491
U. S. 781, 791 (1989) (internal quotation marks omitted).
Even under intermediate scrutiny, the Government has not
explained how a debt-collection robocall about a govern-
ment-backed debt is any less intrusive or could be any less
harassing than a debt-collection robocall about a privately
backed debt. As the Fourth Circuit noted, the government-
debt exception is seriously underinclusive because it per-
mits “many of the intrusive calls that the automated call
ban was enacted to prohibit.” American Assn. of Political
Consultants, Inc. v. FCC, 923 F. 3d 159, 168 (2019) (case
below). The Government could have employed far less re-
strictive means to further its interest in collecting debt,
such as “secur[ing] consent from the debtors to make debt-
collection calls” or “plac[ing] the calls itself.” Id., at 169,
2 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
SOTOMAYOR, J., concurring in judgment
n. 10; see also §227(b)(1)(A). Nor has the Government “suf-
ficiently justified the differentiation between government-
debt collection speech and other important categories of ro-
bocall speech, such as political speech, charitable fundrais-
ing, issue advocacy, commercial advertising, and the like.”
Ante, at 9.
Nevertheless, I agree that the offending provision is sev-
erable. See ante, at 2; post, at 11–12 (opinion of BREYER,
J.); see also City of Ladue v. Gilleo, 512 U. S. 43, 51–53
(1994) (explaining that an appropriate “solution” to a law
that covers “too little speech because its exemptions dis-
criminate on the basis of [the speaker’s] messages” could be
to “remove” the discrimination).
With those understandings, I concur in the judgment.
Cite as: 591 U. S. ____ (2020) 1
BREYER, J., concurring
Opinioninofpart and, dissenting
BREYER J. in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–631
_________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,
PETITIONERS v. AMERICAN ASSOCIATION OF
POLITICAL CONSULTANTS, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[July 6, 2020]
JUSTICE BREYER, with whom JUSTICE GINSBURG and
JUSTICE KAGAN join, concurring in the judgment with re-
spect to severability and dissenting in part.
A federal statute forbids, with some exceptions, making
automatically dialed or prerecorded telephone calls (called
robocalls) to cell phones. This case concerns one of these
exceptions, which applies to calls “made solely to collect a
debt owed to or guaranteed by the United States.” 47
U. S. C. §227(b)(1)(A)(iii). A majority of the Court holds
that the exception violates the Constitution’s First Amend-
ment. In my view, it does not.
I
This case concerns the Telephone Consumer Protection
Act of 1991. That Act was designed to “protec[t ] telephone
consumers from th[e] nuisance and privacy invasion”
caused by automated and prerecorded phone calls. §2(12),
105 Stat. 2395. The Act, among other things, bans almost
all robocalls made to cell phones. In particular, it forbids
“any call (other than a call made for emergency purposes or
made with the prior express consent of the called party) us-
ing any automatic telephone dialing system or an artificial
or prerecorded voice . . . to any telephone number assigned
to a . . . cellular telephone service.” §3(a) (codified at 47
2 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of BREYER, J.
U. S. C. §227(b)(1)(A)(iii)). The Act delegates authority to
the Federal Communications Commission to make certain
additional exceptions from that general cell phone robocall
restriction. §227(b)(2)(C).
More than 20 years later, Congress enacted another stat-
ute, which created the government-debt exception. The Of-
fice of Management and Budget had reported to Congress
that in “this time of fiscal constraint . . . the Federal Gov-
ernment should ensure that all debt owed to the United
States is collected as quickly and efficiently as possible.”
Office of Management and Budget, Analytical Perspectives,
Budget of the U. S. Government, Fiscal Year 2016, p. 128
(2015), https://www.govinfo.gov/content/pkg/BUDGET-
2016-PER/pdf/BUDGET-2016-PER.pdf. It recommended
that Congress permit “the use of automatic dialing systems
and prerecorded voice messages” to contact “wireless
phones in the collection of debt owed to or granted [sic] by
the United States.” Ibid.
Congress adopted that recommendation. It enacted a
provision that excepts from the general cell phone robocall
restriction any call “made solely to collect a debt owed to or
guaranteed by the United States.” 129 Stat. 588; see also
ibid. (categorizing the exception as a “debt collection im-
provemen[t]” measure). The question here is whether the
First Amendment prohibits the Federal Government from
enacting that government-debt collection measure.
II
The plurality finds the government-debt exception un-
constitutional primarily by applying a logical syllogism: (1)
“Content-based laws are subject to strict scrutiny.” Ante, at
6 (citing Reed v. Town of Gilbert, 576 U. S. 155, 163–164
(2015)). (2) The exception is based on “content.” Ante, at 7.
(3) Hence, the exception is subject to “strict scrutiny.” Ante,
at 9. (4) And the Government concedes that the exception
cannot survive “strict scrutiny” examination. Ibid.Cite as: 591 U. S. ____ (2020) 3
Opinion of BREYER, J.
The problem with that approach, which reflexively ap-
plies strict scrutiny to all content-based speech distinctions,
is that it is divorced from First Amendment values. This
case primarily involves commercial regulation—namely,
debt collection. And, in my view, there is no basis here to
apply “strict scrutiny” based on “content-discrimination.”
To appreciate why, it is important to understand at least
one set of values that underlie the First Amendment and
the related reasons why courts scrutinize some speech re-
strictions strictly. The concept is abstract but simple: “We
the People of the United States” have created a government
of laws enacted by elected representatives. For our govern-
ment to remain a democratic republic, the people must be
free to generate, debate, and discuss both general and spe-
cific ideas, hopes, and experiences. The people must then
be able to transmit their resulting views and conclusions to
their elected representatives, which they may do directly,
or indirectly through the shaping of public opinion. The ob-
ject of that transmission is to influence the public policy en-
acted by elected representatives. As this Court has ex-
plained, “[t]he First Amendment was fashioned to assure
unfettered interchange of ideas for the bringing about of po-
litical and social changes desired by the people.” Meyer v.
Grant, 486 U. S. 414, 421 (1988) (internal quotation marks
omitted). See generally R. Post, Democracy, Expertise, and
Academic Freedom: A First Amendment Jurisprudence for
the Modern State 1–25 (2012).
In other words, the free marketplace of ideas is not simply
a debating society for expressing thought in a vacuum. It
is in significant part an instrument for “bringing about . . .
political and social chang[e ].” Meyer, 486 U. S., at 421. The
representative democracy that “We the People” have cre-
ated insists that this be so. See Sorrell v. IMS Health Inc.,
564 U. S. 552, 583 (2011) (BREYER, J., dissenting). See gen-
erally, e.g., B. Neuborne, Madison’s Music: On Reading the
First Amendment (2015).
4 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of BREYER, J.
It is thus no surprise that our First Amendment jurispru-
dence has long reflected these core values. This Court’s
cases have provided heightened judicial protection for polit-
ical speech, public forums, and the expression of all view-
points on any given issue. See, e.g., Buckley v. American
Constitutional Law Foundation, Inc., 525 U. S. 182, 186–
187 (1999) (heightened protection for “core political
speech”); Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U. S. 819, 829–830 (1995) (government discrimination
on basis of “particular views taken by speakers on a subject”
presumptively unconstitutional); Boos v. Barry, 485 U. S.
312, 321 (1988) (“content-based restriction[s] on political
speech in a public forum” subject to “most exacting scru-
tiny” (emphasis deleted)); Perry Ed. Assn. v. Perry Local Ed-
ucators’ Assn., 460 U. S. 37, 45–46 (1983) (content-based ex-
clusions in public forums subject to strict scrutiny). These
cases reflect the straightforward principle that “govern-
ments must not be allowed to choose which issues are worth
discussing or debating.” Reed, 576 U. S., at 182 (KAGAN, J.,
concurring in judgment) (internal quotation marks omit-
ted).
From a democratic perspective, however, it is equally im-
portant that courts not use the First Amendment in a way
that would threaten the workings of ordinary regulatory
programs posing little threat to the free marketplace of
ideas enacted as result of that public discourse. As a gen-
eral matter, the strictest scrutiny should not apply indis-
criminately to the very “political and social changes desired
by the people”—that is, to those government programs
which the “unfettered interchange of ideas” has sought to
achieve. Meyer, 486 U. S., at 421 (internal quotation marks
omitted). Otherwise, our democratic system would fail, not
through the inability of the people to speak or to transmit
their views to government, but because of an elected gov-
ernment’s inability to translate those views into action.
Thus, once again, it is not surprising that this Court has
Cite as: 591 U. S. ____ (2020) 5
Opinion of BREYER, J.
applied less strict standards when reviewing speech re-
strictions embodied in government regulatory programs.
This Court, for example, has applied a “rational basis”
standard for reviewing those restrictions when they have
only indirect impacts on speech. See Glickman v. Wileman
Brothers & Elliott, Inc., 521 U. S. 457, 469–470, 477 (1997).
And it has applied a mid-level standard of review—often
termed “intermediate scrutiny”—when the government di-
rectly restricts protected commercial speech. See Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y.,
447 U. S. 557, 561–564 (1980).
This account of well-established principles at the core of
the First Amendment demonstrates the problem with the
plurality’s approach. To reflexively treat all content-based
distinctions as subject to strict scrutiny regardless of con-
text or practical effect is to engage in an analysis unteth-
ered from the First Amendment’s objectives. And in this
case, strict scrutiny is inappropriate. Recall that the excep-
tion at issue here concerns debt collection—specifically a
method for collecting government-owned or -backed debt.
Regulation of debt collection does not fall on the first side of
the democratic equation. It has next to nothing to do with
the free marketplace of ideas or the transmission of the peo-
ple’s thoughts and will to the government. It has every-
thing to do with the second side of the equation, that is, with
government response to the public will through ordinary
commercial regulation. To apply the strictest level of scru-
tiny to the economically based exemption here is thus re-
markable.
I recognize that the underlying cell phone robocall re-
striction primarily concerns a means of communication.
And that fact, as I discuss below, triggers some heightened
scrutiny, reflected in an intermediate scrutiny standard.
Strict scrutiny and its strong presumption of unconstitu-
tionality, however, have no place here.
6 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of BREYER, J.
The plurality claims that its approach, which categori-
cally applies strict scrutiny to content-based distinctions,
will not “affect traditional or ordinary economic regulation
of commercial activity.” Ante, at 9. But how is that so?
Much of human life involves activity that takes place
through speech. And much regulatory activity turns upon
speech content. See, e.g., Reed, 576 U. S., at 177–178
(BREYER, J., concurring in judgment) (giving examples).
Consider, for example, the regulation of securities sales,
drug labeling, food labeling, false advertising, workplace
safety warnings, automobile airbag instructions, consumer
electronic labels, tax forms, debt collection, and so on. All
of those regulations necessarily involve content-based
speech distinctions. What are the differences between reg-
ulatory programs themselves other than differences based
on content? After all, the regulatory spheres in which the
Securities and Exchange Commission or the Federal Trade
Commission operate are defined by content. Put simply,
treating all content-based distinctions on speech as pre-
sumptively unconstitutional is unworkable and would ob-
struct the ordinary workings of democratic governance.
That conclusion is true here notwithstanding the plural-
ity’s effort to bring political speech into the First Amend-
ment analysis. See ante, at 7, 25 (characterizing Congress
as having “favored debt-collection speech over plaintiffs’ po-
litical speech”). It is true that the underlying cell phone
robocall restriction generally prohibits political speakers
from making robocalls. But that has little to do with the
government-debt exception or its practical effect. Nor does
it justify the application of strict scrutiny.
Consider prescription drug labels, securities forms, and
tax statements. A government agency might reasonably
specify just what information the form or label must contain
and further provide that the form or label may not contain
other information (thereby excluding political statements).
No one would think that the exclusion of political speech,
Cite as: 591 U. S. ____ (2020) 7
Opinion of BREYER, J.
say, from a drug label, means that courts must examine all
other regulatory exceptions with strict scrutiny. Put differ-
ently, it is hard to imagine that such exceptions threaten
political speech in the marketplace of ideas, or have any sig-
nificant impact on the free exchange of ideas. To treat those
exceptions as presumptively unconstitutional would work a
significant transfer of authority from legislatures and agen-
cies to courts, potentially inhibiting the creation of the very
government programs for which the people (after debate)
have voiced their support, despite those programs’ minimal
speech-related harms. See Sorrell, 564 U. S., at 584–585
(BREYER, J., dissenting). Given the values at the heart of
the First Amendment, see supra, at 3–5, that interpretation
threatens to stand that Amendment on its head. It could
also lead the Court to water down the strict scrutiny stand-
ard, which would limit speech protections in situations
where strict scrutiny’s strong protections should properly
apply. Reed, 576 U. S., at 178 (BREYER, J., concurring in
judgment).
If, as I have argued, the First Amendment does not sup-
port the mechanical conclusion that content discrimination
automatically triggers strict scrutiny, what role might con-
tent discrimination play? The plurality is correct when it
quotes this Court as having said that the government may
not discriminate “ ‘in the regulation of expression on the ba-
sis of the content of that expression.’ ” Ante, at 6 (quoting
Hudgens v. NLRB, 424 U. S. 507, 520 (1976)). If, however,
this Court is to apply the First Amendment consistently
with the democratic values embodied within that Amend-
ment, that kind of statement must reflect a rule of thumb
applicable only in certain circumstances. See Reed, 576
U. S., at 176 (BREYER, J., concurring in judgment); id., at
183 (KAGAN, J., concurring in judgment) (“We can adminis-
ter our content-regulation doctrine with a dose of common
sense, so as to leave standing laws that in no way implicate
its intended function”).
8 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of BREYER, J.
Indeed, that must be so given that this Court’s First
Amendment jurisprudence itself ties the constitutional pro-
tection speech receives to the content or purpose of that
speech. The Court has held that entire categories of
speech—for example, obscenity, fraud, and speech integral
to criminal conduct—are generally unprotected by the First
Amendment entirely because of their content. See Miller v.
California, 413 U. S. 15, 23 (1973) (obscenity); Virginia Bd.
of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U. S. 748, 771 (1976) (fraud); Giboney v. Empire Stor-
age & Ice Co., 336 U. S. 490, 498 (1949) (speech integral to
criminal conduct). As Justice Stevens pointed out, “our en-
tire First Amendment jurisprudence creates a regime based
on the content of speech.” R. A. V. v. St. Paul, 505 U. S. 377,
420 (1992) (opinion concurring in judgment); see id., at
420–422 (providing examples). Given that this Court looks
to the nature and content of speech to determine whether,
or to what extent, the First Amendment protects it, it
makes little sense to treat every content-based distinction
Congress has made as presumptively unconstitutional.
Moreover, it is no answer to claim that this Court’s prec-
edents categorically require such an analysis. See ante, at
9, n. 5 (plurality opinion). Our First Amendment jurispru-
dence has always been contextual and has defied straight-
forward reduction to unyielding categorical rules. The idea
that broad language in any one case (even Reed) has cate-
gorically determined how content discrimination should be
applied in every single context is both wrong and reflects an
oversimplification and over-reading of our precedent. The
diversity of approaches in this very case underscores the
point that the law here is far from settled. Indeed, the plu-
rality itself disclaims the idea that its rule would apply to
unsettle “traditional or ordinary economic regulation of
commercial activity,” indicating that the plurality presum-
ably thinks there are some outer bounds to its broad lan-
guage. Ante, at 9. The question here is whether the Court’s
Cite as: 591 U. S. ____ (2020) 9
Opinion of BREYER, J.
general statements about content discrimination triggering
strict scrutiny, including in Reed, make sense as applied in
this context. As I have explained, they do not.
That said, I am not arguing for the abolition of the con-
cept of “content discrimination.” There are times when us-
ing content discrimination to trigger scrutiny is eminently
reasonable. Specifically, when content-based distinctions
are used as a method for suppressing particular viewpoints
or threatening the neutrality of a traditional public forum,
content discrimination triggering strict scrutiny is gener-
ally appropriate. See Reed, 576 U. S., at 176 (BREYER, J.,
concurring in judgment); id., at 182–183 (KAGAN, J., con-
curring in judgment).
Neither of those situations is present here. Outside of
these circumstances, content discrimination can at times
help determine the strength of a government justification
or identify a potential interference with the free market-
place of ideas. See id., at 176–177 (BREYER, J., concurring
in judgment). But, as I have explained, this case is not
about protecting the marketplace of ideas. It is not about
the formation of public opinion or the transmission of the
people’s will to elected representatives. It is fundamentally
about a method of regulating debt collection.
III
I would examine the validity of the regulation at issue
here using a First Amendment standard that (unlike strict
scrutiny) does not strongly presume that a regulation that
affects speech is unconstitutional. However, given that the
government-debt exception does directly impact a means of
communication, the appropriate standard requires a closer
look at the restriction than does a traditional “rational ba-
sis” test. A proper inquiry should examine the seriousness
of the speech-related harm, the importance of countervail-
ing objectives, the likelihood that the restriction will
achieve those objectives, and whether there are other, less
10 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of BREYER, J.
restrictive ways of doing so. Narrow tailoring in this con-
text, however, does not necessarily require the use of the
least-restrictive means of furthering those objectives. Cf.
Ward v. Rock Against Racism, 491 U. S. 781, 797–799, and
n. 6 (1989) (explaining that outside of strict scrutiny review,
narrow tailoring does not require the use of least-restric-
tive-means analysis). That inquiry ultimately evaluates a
restriction’s speech-related harms in light of its justifica-
tions. We have typically called this approach “intermediate
scrutiny,” though we have sometimes referred to it as an
assessment of “fit,” sometimes called it “proportionality,”
and sometimes just applied it without using a label. See
United States v. Alvarez, 567 U. S. 709, 730–731 (2012)
(BREYER, J., concurring in judgment); Reed, 576 U. S., at
179 (BREYER, J., concurring in judgment).
Applying this Court’s intermediate scrutiny analysis, I
would begin by asking just what the First Amendment
harm is here. As JUSTICE KAVANAUGH notes, the govern-
ment-debt exception provides no basis for undermining the
general cell phone robocall restriction. Ante, at 10–11. In-
deed, looking at the government-debt exception in context,
we can see that the practical effect of the exception, taken
together with the rest of the statute, is to put non-govern-
ment debt collectors at a disadvantage. Their speech oper-
ates in the same sphere as government-debt collection
speech, communicates comparable messages, and yet does
not have the benefit of a particular instrument of commu-
nication (robocalls). While this is a speech-related harm,
debt-collection speech is both commercial and highly regu-
lated. See Brief for Petitioners 20–21 (describing multiple
restrictions imposed by the Fair Debt Collection Practices
Act on communications by debt collectors in the course of
debt collection). The speech-related harm at issue here—
and any related effect on the marketplace of ideas—is mod-
est.
Cite as: 591 U. S. ____ (2020) 11
Opinion of BREYER, J.
What, then, is the justification for this harm? The pur-
pose of the exception is to further the protection of the pub-
lic fisc. See supra, at 2. That protection is an important
governmental interest. Private debt typically involves pri-
vate funds; public debt typically involves funds that, in
principle, belong to all of us, and help to implement numer-
ous governmental policies that the people support.
Finally, is the exception narrowly tailored? Its limited
scope shows that it is. Congress has minimized any speech-
related harm by tying the exception directly to the Govern-
ment’s interest in preserving the public fisc. The statutory
text makes clear that calls will only fall within the bounds
of that exception if they are “made solely to collect” Govern-
ment debt. 47 U. S. C. §227(b)(1)(A)(iii) (emphasis added).
Thus, the exception cannot be used to permit communica-
tions unrelated or less directly related to that public fiscal
interest.
The upshot is that the government-debt exception, taken
in context, inflicts some speech-related harm. But the
harm, as I have explained, is related not to public efforts to
develop ideas or transmit them to the Government, but to
the Government’s response to those efforts, which here
takes the form of highly regulated commercial communica-
tions. Moreover, there is an important justification for that
harm, and the exception is narrowly tailored to further that
goal. Given those facts, the government-debt exception
should survive intermediate First Amendment scrutiny.
IV
For the reasons described above, I would find that the
government-debt exception does not violate the First
Amendment. A majority of the Court, however, has con-
cluded the contrary. It must thus decide whether that pro-
vision is severable from the rest of the statute. As to that
question, I agree with JUSTICE KAVANAUGH’s conclusion
that the provision is severable. Accordingly, I respectfully
12 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of BREYER, J.
concur in the judgment with respect to severability and dis-
sent in part.
Cite as: 591 U. S. ____ (2020) 1
GORSUCH, J., concurring inGpart
Opinion of and,dissenting
ORSUCH J. in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–631
_________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,
PETITIONERS v. AMERICAN ASSOCIATION OF
POLITICAL CONSULTANTS, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[July 6, 2020]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins as
to Part II, concurring in the judgment in part and dissent-
ing in part.
I agree with JUSTICE KAVANAUGH that the provision of
the Telephone Consumer Protection Act before us violates
the First Amendment. Respectfully, however, I disagree
about why that is so and what remedial consequences
should follow.
I
The TCPA is full of regulations on robocalls. The statute
limits robocalls to residential landlines, hospitals, emer-
gency numbers, and business lines. The only provision be-
fore us today, however, concerns robocalls to cell phones,
mobile devices, or “any service for which the called party is
charged for the call.” 47 U. S. C. §227(b)(1)(A)(iii). Before
the law’s enactment, many cell phone users had to pay for
each call, so they suffered not only the pleasure of robocalls,
but also the privilege of paying for them. In 1991, Congress
sought to address the problem by banning nearly all unso-
licited robocalls to cell phones.
But much has changed since then. Now, cell phone users
often pay a flat monthly fee for unlimited minutes, reducing
the cost (if not the annoyance) of hearing from robocallers.
2 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of GORSUCH, J.
New weapons in the fight against robocallers have
emerged, too—including tools that allow consumers to more
easily screen and block unwanted calls. Perhaps in recog-
nition of these changes, Congress relaxed the ban on cell-
phone robocallers in 2015. Today, unsolicited calls are per-
mitted 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 gov-
ernment backs millions upon millions of loans—student
loans, home mortgages, veterans’ loans, farm loans, busi-
ness loans. When it comes to student loans alone, the gov-
ernment 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.
Today’s plaintiffs wish to use robocalls for something dif-
ferent: to campaign and solicit donations for political
causes. The plaintiffs allege that the law’s continuing ban
on calls like theirs violates the First Amendment, and on
the main points of their argument the parties agree. First,
no one doubts the TCPA regulates speech. Second, every-
one accepts that restrictions on speech—no matter how ev-
enhanded—must be justified by at least a “ ‘significant gov-
ernmental interest.’ ” Ward v. Rock Against Racism, 491
U. S. 781, 791 (1989). And, third, the parties agree that
laws that go further by regulating speech on the basis of
content invite still greater scrutiny. When the government
seeks to censor speech based on its content, favoring certain
voices and punishing others, its restrictions must satisfy
“strict scrutiny”—meaning they must be justified by inter-
ests that are “compelling,” not just significant. After all, a
constitutional right would hardly be needed to protect pop-
ular speakers; the First Amendment does its real work in
Cite as: 591 U. S. ____ (2020) 3
Opinion of GORSUCH, J.
giving voice to those a majority would silence. See McCul-
len v. Coakley, 573 U. S. 464, 477–478 (2014); but see ante,
at 5–6 (BREYER, J., concurring in judgment with respect to
severability and dissenting in part) (seeking to overturn
precedent and allow the government sometimes to impose
content-based restrictions to “respon[d] to the public will”).
In my view, the TCPA’s rule against cellphone robocalls
is a content-based restriction that fails strict scrutiny. The
statute is content-based because it allows speech on a sub-
ject the government favors (collecting its debts) while ban-
ning speech on other disfavored subjects (including political
matters). Cf. ante, at 9–11 (opinion of BREYER, J.) (mistak-
enly characterizing the content discrimination as “not
about” political activities). The statute fails strict scrutiny
because the government offers no compelling justification
for its prohibition against the plaintiffs’ political speech. In
fact, the government does not dispute that, if strict scrutiny
applies, its law must fall.
It’s easy enough to see why the government makes no ef-
fort to satisfy strict scrutiny. Now that most cell phone
plans do not charge by the call, the only justification the
government cites for its robocall ban is its interest in pro-
tecting consumer privacy. No one questions that protecting
consumer privacy qualifies as a legitimate and “genuine”
interest for the government to pursue. Ante, at 2–3, 10. But
before the government may censor the plaintiffs’ speech
based on its content, it must point to a compelling interest.
And if the government thinks consumer privacy interests
are insufficient to overcome its interest in collecting debts,
it’s hard to see how the government might invoke consumer
privacy interests to justify banning private political speech.
Especially when consumers seem to find debt collection ef-
forts particularly intrusive: Year after year, the Federal
Trade Commission receives more complaints about the debt
collection industry than any other. The nature and breadth
of the law’s exception calls into question the necessity of its
4 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of GORSUCH, J.
rule.
Much precedent supports this course. As this Court has
long explained, a law’s failure to address a wide swath of
conduct implicating its supposed concern “diminish[es] the
credibility of the government’s [stated] rationale for [its] re-
strict[ion].” City of Ladue v. Gilleo, 512 U. S. 43, 52 (1994).
Or, as the Court has elsewhere put it, the compellingness
of the government’s putative interest is undermined when
its law “leaves appreciable damage to [the] supposedly vital
interest unprohibited.” Church of Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U. S. 520, 547 (1993) (internal quotation
marks omitted); see also Gonzales v. O Centro Espírita Be-
neficente União do Vegetal, 546 U. S. 418, 433 (2006). The
insight is simple: A law’s failure to cover “significant tracts
of conduct implicating [its] putatively compelling interes[t]
can raise . . . the inference that the . . . claimed interest isn’t
. . . so compelling after all.” Yellowbear v. Lampert, 741
F. 3d 48, 60 (CA10 2014).
That’s not to say the inference is irrebuttable. The gov-
ernment might, for example, show that the apparent incon-
sistency in its law is justified by some qualitative or quan-
titative difference between the speech it favors and the
speech it disfavors. See id., at 61. So if debt collection ro-
bocalls were less invasive of consumer privacy than other
kinds of robocalls, or if they were inherently rare, an excep-
tion permitting debt collection calls might not undermine
the government’s claimed interest in banning other calls.
But the government, a party with every incentive and am-
ple resources, has not even tried to suggest conditions like
those are present here, and understandably so: The
government-debt exception allows a seemingly infinite
number of robocalls of the type consumers appear to find
most invasive.
II
With a First Amendment violation proven, the question
Cite as: 591 U. S. ____ (2020) 5
Opinion of GORSUCH, J.
turns to remedy. Because the challenged robocall ban un-
constitutionally infringes on their speech, I would hold that
the plaintiffs are entitled to an injunction preventing its en-
forcement against them. This is the traditional remedy for
proven violations of legal rights likely to work irreparable
injury in the future. Preventing the law’s enforcement
against the plaintiffs would fully address their injury. And
going this far, but no further, would avoid “short circuit[ing]
the democratic process” by interfering with the work of Con-
gress any more than necessary. Washington State Grange
v. Washington State Republican Party, 552 U. S. 442, 451
(2008).
JUSTICE KAVANAUGH’s opinion pursues a different
course. Invoking “severability doctrine,” it declares the
government-debt exception void and severs it from the stat-
ute. As revised by today’s decision, the law prohibits nearly
all robocalls to cell phones, just as it did back in 1991. In
support of this remedy, we are asked to consider cases in-
volving equal protection violations, where courts have
sometimes solved the problem of unequal treatment by lev-
eling others “down” to the plaintiff ’s status rather than by
leveling the plaintiff “up” to the status others enjoy.
I am doubtful of our authority to rewrite the law in this
way. Many have questioned the propriety of modern sever-
ability doctrine,* and today’s case illustrates some of the
reasons why. To start, it’s hard to see how today’s use of
severability doctrine qualifies as a remedy at all: The plain-
tiffs have not challenged the government-debt exception,
they have not sought to have it severed and stricken, and
far from placing “unequal treatment” at the “heart of their
——————
*See, e.g., Seila Law LLC v. Consumer Financial Protection Bureau,
ante, at 14–24 (THOMAS, J., concurring in part and dissenting in part);
Harrison, Severability, Remedies, and Constitutional Adjudication, 83
Geo. Wash. L. Rev. 56 (2014); see also Movsesian, Severability in Stat-
utes and Contracts, 30 Ga. L. Rev. 41, 41–42 (1995) (collecting academic
criticism of severability doctrine).
6 BARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of GORSUCH, J.
suit,” they have never complained of unequal treatment as
such. Ante, at 23. The plaintiffs point to the government-
debt exception only to show that the government lacks a
compelling interest in restricting their speech. It isn’t even
clear the plaintiffs would have standing to challenge the
government-debt exception. They came to court asserting
a right to speak, not a right to be free from other speakers.
Severing and voiding the government-debt exception does
nothing to address the injury they claim; after today’s rul-
ing, federal law bars the plaintiffs from using robocalls to
promote political causes just as stoutly as it did before.
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?
A severance remedy not only fails to help the plaintiffs, it
harms strangers to this suit. Just five years ago, Congress
expressly authorized robocalls to cell phones to collect gov-
ernment-backed debts. Yet, today, the Court reverses that
decision and outlaws the entire industry. It is highly unu-
sual for judges to render unlawful conduct that Congress
has explicitly made lawful—let alone to take such an ex-
traordinary step without warning to those who have or-
dered their lives and livelihoods in reliance on the law, and
without affording those individuals any opportunity to be
heard. This assertion of power strikes me as raising serious
separation of powers questions, and it marks no small de-
parture from our usual reliance on the adversarial process.
Nor does the analogy to equal protection doctrine solve
the problem. That doctrine promises equality of treatment,
whatever that treatment may be. The First Amendment
isn’t so neutral. It pushes, always, in one direction: against
governmental restrictions on speech. Yet, 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.
Cite as: 591 U. S. ____ (2020) 7
Opinion of GORSUCH, J.
In an effort to mitigate at least some of these problems,
JUSTICE KAVANAUGH suggests that the ban on government-
debt collection calls announced today might be applied only
prospectively. See ante, at 22, n. 13. But prospective deci-
sionmaking has never been easy to square with the judicial
power. See, e.g., James B. Beam Distilling Co. v. Georgia,
501 U. S. 529, 548–549 (Scalia, J., concurring in judgment)
(judicial power is limited to “discerning what the law is, ra-
ther than decreeing . . . what it will tomorrow be”). And a
holding that shields only government-debt collection callers
from past liability under an admittedly unconstitutional
law would wind up endorsing the very same kind of content
discrimination we say we are seeking to eliminate.
Unable to solve the problems associated with its pre-
ferred severance remedy, today’s decision seeks at least to
identify “harm[s]” associated with mine. Cf. ante, at 24
(opinion of KAVANAUGH, J.). In particular, we are reminded
that granting an injunction in this case would allow the
plaintiffs’ (unpopular) speech, and that could induce others
to seek injunctions of their own, resulting in still more (un-
popular) speech. But this “harm” is hardly comparable to
the problems associated with using severability doctrine:
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.
*
In the end, I agree that 47 U. S. C. §227(b)(1)(A)(iii) vio-
lates the First Amendment, though not for the reasons
JUSTICE KAVANAUGH offers. Nor am I able to support the
remedy the Court endorses today. Respectfully, if this is
what modern “severability doctrine” has become, it seems
to me all the more reason to reconsider our course.