Defamation / Reputation, Privacy, Data Protection and Retention
Marina v. Romania
Closed Mixed Outcome
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The Supreme Court of the United States held that the exception carved out to allow robocalls for collection of government debt was unconstitutional and should be severed from the remainder of the statute. Robocalls had been restricted in 1991 through the enactment of the Telephone Consumer Protection Act, but an exception was added in 2015 which allowed robocalls “made solely to collect a debt owed to or guaranteed by the United States.” A group of organizations that participated in political advocacy challenged the robocall restriction, arguing that it violated their First Amendment rights by preventing them from using robocalls to communicate their political messages efficiently. The Supreme Court found the exception was an unjustifiable content-based restriction and hence could not survive strict scrutiny. It therefore, severed that exception but kept the broad restriction on the use of robocalls intact, recognizing “Congress’s continuing interest in protecting consumer privacy.”
In 1991, the United States Congress passed the U.S. Telephone Consumer Protection Act (TCPA) to regulate robocalls, and to amend the Communications Act 1934 (codified in Title 47 of the U.S. Code). The legislation responded to the “torrent of vociferous consumer complaints about robocalls” – a tool used by telemarketers to “automatically dial a telephone number and deliver an artificial or prerecorded voice message” [p. 2]. The legislation sought to “’protec[t] telephone consumers from the nuisance and privacy invasion’ caused by automated and prerecorded phone calls” [p. 1, Breyer opinion]. The TCPA prohibited all robocalls – including to cell phones – except when the calls were made for any emergency purpose or with prior express consent of the person being called. At the time, Congress found that this almost-complete ban was “the only effective means of protecting telephone consumers from this nuisance and privacy invasion” [p. 3].
In 2015, Congress passed the Bipartisan Budget Act which amended the TCPA prohibition on robocalls to cell phones and introduced a new exception. The amendment allowed for robocalls “made to collect debts owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage debts” (the government-debt exception) [p. 1]. The purpose of this exception was to ensure that “all debt owed to the United States is collected as quickly and efficiently as possible” [p. 2 Breyer opinion].
The American Association of Political Consultants (AAPC) and three other organizations which regularly “make calls to citizens to discuss [political] candidates and issues, solicit donations, conduct polls, and get out the vote” wanted to make robocalls but knew that the TCPA and its government-debt exception prevented them from doing so as they were not collecting government debt. The AAPC approached the U.S. District Court for the Eastern District of North Carolina, seeking a declaration that the robocalls restriction violated the First Amendment to the U.S. Constitution. The First Amendment states “Congress shall make no law … abridging the freedom of speech …”. The District Court found that although the restriction was a content-based speech regulation and so “triggered strict scrutiny”, it “survived strict scrutiny … because of the Government’s compelling interest in collecting debt” [p. 5].
The AAPC then appealed to the U.S. Court of Appeals for the Fourth Circuit which applied the strict scrutiny analysis and held that the law “could not withstand strict scrutiny and was therefore unconstitutional” [p. 5]. The Court severed the exception for government-debt from the robocall restriction in the TCPA.
The U.S. government petitioned the Supreme Court to hear the matter. The AAPC supported the government’s petition, arguing that the Court of Appeals should have declared the entire robocall restriction unconstitutional rather than severing the government-debt exception from the rest of the provision.
Justice Kavanaugh, along with the Chief Justice Roberts and Justices Thomas and Alito, delivered the plurality opinion for the nine-judge bench of the Court. Justice Sotomayor delivered a concurring opinion. Justice Breyer, along with Justices Ginsburg and Kagan, delivered a partially dissenting opinion. Justice Gorsuch delivered a partially dissenting opinion (to which Justice Thomas joined in the dissent).
The central issue for the Court’s determination was whether the robocall restriction, with the amendment including the government-debt exception, violated the First Amendment.
The AAPC recognized that the purpose for the 1991 restriction was consumer privacy, but submitted that the 2015 government-debt exception “betrays a newfound lack of genuine congressional concern for consumer privacy” [p. 10]. It argued that because this newer exception demonstrates a lack of interest in that consumer privacy then the entire restriction, adopted in 1991, is no longer justified and therefore unconstitutional [p. 10]. In respect of what the Court should do if it finds the government-debt exception unconstitutional, the AAPC argued that the exception should not merely be severed from the restriction because the nature of the case involving the First Amendment meant that “a court should not cure ‘a First Amendment violation by outlawing more speech’” [p. 22], and so should declare the entire robocall restriction unconstitutional.
The government argued that the regulation in the TCPA was not content-based, primarily because it distinguished between speakers and not content on the grounds that it allowed robocalls from debt collectors rather than allowing calls about debt collecting. The government accepted that, if the TCPA regulation was found to be content-based, it “cannot satisfy strict scrutiny to justify the government-debt exception” [p. 9].
The Court examined the alleged violation of the First Amendment, and referred to the case of Police Dept. of Chicago v. Mosly 408 U.S. 92, 95 (1972) in characterizing the First Amendment as meaning that the government generally “has no power to restrict expression because of its message, its ideas, its subject matter or its content” [p. 6]. The Court explained that the jurisprudence allows government to impose various regulations on speech but, in accordance with Hudgens v. NLRB 424 U.S. 507, 520 (1976) and Reed v. Town of Gilbert 576 U.S. 155 (2015), any restrictions on the content of speech are strictly scrutinized. The Court defined a content-based restriction as one which, on its face, “draws distinctions based on the message a speaker conveys”, and held that the government-debt exception in the TCPA was content based because it “favors speech made for collecting government debt over political and other speech” [p. 7]. The Court dismissed the government’s arguments that the regulation was not content-based, holding that the provision addresses robocalls talking about debt collection and not calls only made from debt collectors.
The question of whether the provision was content based was vitally important because the Court agreed with the government’s concession that the provision could not pass the strict scrutiny test required of content-based restrictions. The Court noted that “the Government concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like” [p. 9]. Accordingly, the Court held that the “2015 government-debt exception created an unconstitutional exception to the 1991 robocall restriction” [p. 10].
The Court then examined whether it should “invalidate the entire 1991 robocall restriction, or instead … invalidate and sever the 2015 government-debt exception” [p. 10]. The Court rejected the AAPC’s argument that the addition of the government-debt exception invalidates the purpose of protecting consumer privacy in the entire exception. The Court found that the 2015 addition “does not cause us to doubt the credibility of Congress’s continuing interest in protecting consumer privacy” [para. 10]. The Court stressed that there are very few exceptions to the overall restriction on robocalls in the legislation, and the restriction “proscribes tens of millions of would-be robocalls that would otherwise occur every day” [p. 11]. In noting that Congress has an interest in collecting government debt, the Court added that the AAPC was wrong to characterize Congress’s interests as either protecting consumer privacy or collecting debt as Congress “is interested both in collecting government debt and in protecting consumer privacy” [p. 11]. By applying principles governing the ability of the Courts to sever unconstitutional elements of legislation and the Communications Act’s severability clause, the Court held that it was required to sever the 2015 addition of the government-debt exception from the provision, leaving the earlier restriction on robocalls intact [p. 20].
The Court noted that because Congress had favored debt-collection robocalls over other types of robocalls this case fell into the category of “equal-treatment” case for the question of severability. In equal-treatment cases, Courts seek orders which “cure that unequal treatment either by extending the benefits or burdens to the exempted classes… or by nullifying the benefits or burdens for all” [p. 20]. The Court disagreed with the AAPC that a First Amendment equal-treatment case should be treated differently from other equal-treatment cases on the grounds that extending the restrictions to create equality would limit more speech: the AAPC had argued that courts must chose the option that creates equality by protecting free speech. The Court emphasized that it was permissible for Congress to enact a general robocall restriction (and so restrict speech), and so the Court is not bound to solve the equal-treatment problem by choosing the option which does not limit speech [p. 22].
Accordingly, the Court found that the 2015 amendment which extended the exceptions to the prohibition on robocalls to government-debt collection robocalls was unconstitutional, and ruled that the 2015 government-debt exception be severed from the legislation.
Justice Breyer, Dissenting Opinion
Justice Breyer delivered a partially dissenting opinion, to which Justices Ginsburg and Kagan joined. This opinion would have held that the government-debt exception does not violate the First Amendment. The focus of Justice Breyer’s opinion was on the characterization of the government-debt exception as content-based and the consequences that follow. Justice Breyer set out the plurality’s reasoning as being a “logical syllogism”: content-based restrictions must be subjected to strict scrutiny; the government-debt exception is a content-based restriction; the government accepted that the restriction would not pass strict scrutiny; therefore the exception is unconstitutional. However, Justice Breyer described that approach as being “divorced from First Amendment values”, and stated that it should not be necessary to apply strict scrutiny to the “content-discrimination” in this case [p. 3].
Justice Breyer explained that the goal of the First Amendment is the promotion of democracy by noting that, in order to remain a democratic republic, it is important to ensure that citizens are able to “generate, debate, and discuss both general and specific ideas, hopes, and experiences” and transmit these ideas to their elected representatives so as to be able to “influence the public policy enacted by public representatives [p. 3]. Here, Justice Breyer referred to the Meyer v. Grant 486 U.S. 414 (1988) and Sorrell v. IMS Health Inc. U.S. 552 (2011) cases which linked the “marketplace of ideas” to the ability to create political and social change [p. 3]. This is why, Justice Breyer explained with reference to Buckley v. American Constitutional Law Foundation Inc. 525 U.S. 182 (1999) Rosenberger v. Rector and Visitors of Univ. of Va. 515 U.S. 819 (1995), Boos v. Barry 485 U.S. 312 (1988), Perry Ed. Assn. v. Perry Local Educators’ Assn. 460 U.S. 37 (1983) and Reed, the Courts have “provided heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issues” and established the jurisprudence for the need for strict scrutiny for content-based restrictions [p. 4]. Justice Breyer criticized the plurality’s approach as treating all content-based distinctions the same and stressed that the First Amendment should be used to protect the free marketplace of ideas and not to regulate speech that poses little threat to that marketplace. Accordingly, the Justice maintained that the First Amendment “does not support the mechanical conclusion that content discrimination automatically triggers strict scrutiny” [p. 7] and that the context and practical effect of content-based restrictions must be considered by the Court when it determines whether it should apply strict scrutiny to that restriction. To fail to do so, Justice Breyer states, is to “engage in an analysis untethered from the First Amendment’s objectives” [p. 5].
The justice referred to the Miller v. California 413 U.S. 15 (1973), Virginia Bd. Of Pharmacy v. Virginia Citizens Consumer Council Inc. 425 U.S. 748 (1976) and Giboney v. Empire Storage & Ice Co. 366 U.S 490 (1949) cases to illustrate that the Court has consistently tied the protection given by the First Amendment to the content of the speech sought to be protected: for example, there is no constitutional protection given to speech “integral to criminal conduct” [p. 8]. Accordingly, he noted that as the Court considers 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” [p. 8]. In applying this principle to the present case, Justice Breyer characterised debt-collection as playing a role in “ordinary commercial regulation” and not relevant to the “free marketplace of ideas or the transmission of the people’s thoughts and will to the government” [p. 5]. He would, therefore, have applied an intermediate scrutiny standard rather than the strict scrutiny – which has an attendant presumption of unconstitutionality – that the plurality did. Justice Breyer explained that if all content-based distinctions on speech were deemed to be presumptively unconstitutional it would “obstruct the ordinary workings of democratic governance” [p. 6].
Justice Breyer therefore applied an analysis to the government-debt exception that did not presume its unconstitutionality. He explained this inquiry should “examine the seriousness of the speech-related harm, the importance of countervailing objectives, the likelihood that the restriction will achieve those objectives, and whether there are other, less restrictive ways of doing so” [p. 9-10]. This approach – which he notes has been referred to as “intermediate scrutiny” or “proportionality” – focuses on the justifications for the restrictions to freedom of speech. The first inquiry of this analysis is determining the First Amendment harm, and Justice Breyer found that the harm would be felt by non-government debt collectors who are not able to utilise the robocalls that government-debt collectors are, but noted that this harm “and any related effect on the marketplace of ideas” was merely “modest” [p. 10]. The second inquiry is determining the justification for the harm, and Justice Breyer found that because the debt-collection exception was to protect public finances its purpose was important. The last inquiry is determining whether the exception is narrowly tailored, and Justice Breyer noted that “Congress has minimized any speech-related harm by tying the exception directly to the Government’s interest in preserving the public fisc.” [p. 11]. Justice Breyer therefore acknowledged that there was some harm to freedom of speech by allowing government-debt collectors to use robocalls, but that this harm does not relate to the core purpose of the First Amendment (namely to generate and transmit ideas to the government) and the justification of the harm (namely to protect public funds) is important and the exception is narrowly tailored. Accordingly, he would have found that the government-debt exception would survive intermediate First Amendment scrutiny.
The plurality opinion disagreed with Justice Breyer, noting that Justice Breyer’s approach would amount to overturning several Supreme Court cases – notably the Reed case. The plurality opinion stated that no party to the present case had sought an overruling of the Supreme Court precedent and so no arguments were made, and there was no justification to go against precedent in the present case.
Justice Sotomayor, Concurring Opinion
Justice Sotomayor issued a concurring opinion, agreeing with the plurality opinion and with Judge Breyer’s partially dissenting opinion on the need to apply intermediate scrutiny to the government-debt exception. Judge Sotomayor emphasized that the government had “not explained how a debt-collection robocall about a government-backed debt is any less intrusive or could be any less harassing than a debt-collection robocall about a privately-backed debt” [p. 1]. She stated that the government could have adopted less restrictive means than allowing government-debt robocalls to achieve its goal of collecting debt.
Justice Gorsuch, Concurring Opinion
Justice Gorsuch delivered a concurring opinion, agreeing that the government-debt exception violated the First Amendment but disagreeing on why and on how to remedy that unconstitutionality. With reference to Ward v. Rock Against Racism 491 U.S. 781 (1989), Justice Gorsuch recognized that all restrictions on speech “must be justified by at least a ‘significant governmental interest’” and that content-based restrictions require strict scrutiny [p. 2]. He stated that the government-debt exception is a content-based restriction that fails strict scrutiny because it “allows speech on a subject the government favors (collecting its debts) while banning speech on other disfavored subjects (including political matters)” [p. 3]. Justice Gorsuch agreed with the government’s submissions that the government-debt exception could not withstand strict scrutiny: he noted that the government recognized that the goal of collecting its debts could not outweigh the goal of ensuring consumer privacy, and extrapolated this to an inability of the government to justify infringing political speech (which the AAPC sought to express) on the grounds of consumer privacy. Justice Gorsuch therefore found that there had been a First Amendment violation.
Justice Gorsuch disagreed with the plurality’s approach to the severability of the government-debt exception, on the grounds that severing that exception does not provide any relief to the AAPC. Justice Thomas joined this aspect of Justice Gorsuch’s opinion. Justice Gorsuch stressed that the AAPC had not sought to have the government-debt exception removed from the legislation but had sought to have their own rights to speak using robocalls protected: the AAPC merely used unconstitutionality of the government-debt exception to demonstrate that “the government lacks a compelling interest in restricting their speech” [p. 6]. Justice Gorsuch noted that by severing the government-debt exception on the basis that it violated the First Amendment in fact “leads to the unlikely result that not a single person will be allowed to speak more freely and, instead, more speech will be banned” [p. 6]. He added that “[h]aving 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” [p. 7].
The plurality responded to Justice Gorsuch’s criticism that the AAPC would receive no relief by emphasizing that the core argument in the AAPC’s case was a desire for equal treatment: by severing the government-debt exception the Court had removed the unequal treatment government-debt collecting calls received under the TCPA. The plurality also disagreed with Justice Gorsuch’s reasoning as it would allow for all robocalls: the plurality stressed that Congress had made the decision to restrict robocalls and the Court overruling that decision would “disrespect the democratic process” [p. 24].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In upholding the broad restriction on robocalls while removing the permissible exception for government-debt collecting robocalls, the Supreme Court restricted the freedom of expression of all entities seeking to utilize robocalls.
However, the Court upheld “Congress’s continuing interest in protecting consumer privacy” finding that overruling that interest would “disrespect the democratic process.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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