Thursday, April 25, 2019
TCPA's content-based robocall ban survives in the Fourth Circuit because of severability; previously exempt debt-collecting robocallers apparently in new legal jeopardy.
In American Association of Political Consultants, Inc. v. FCC, the Fourth Circuit yesterday held unconstitutional an exemption from the federal ban on automated calls to cellphones. This exemption authorized automated calls that relate to the collection of debts owed to or guaranteed by the federal government. In an opinion joined by Judges Keenan and Quattlebaum, Judge King wrote that the exemption was content-based and failed strict scrutiny, but that it could be severed. The result is that the plaintiffs' political calls remain subject to the general ban.
The Fourth Circuit panel seems to have been tripped up in entanglements among standing, substantive constitutional law, and severability. As a matter of standing, the plaintiffs are injured by the ban, not the exemption for federal debt collections. As a matter of substantive constitutional law, the ban and its exemptions form a single unit for purposes of constitutional analysis. The challenge is to a content-based restriction on speech, not to the exemption itself. If this challenge succeeds, there is no work for severability to do in separating the ban from the exemption; the whole unit is unconstitutional. Severability would keep the rest of the TCPA intact, but the content-based ban should fall because of the exemption it contains.
The appropriate unit of analysis for unconstitutionality varies among various areas of substantive constitutional law. But for freedom of speech purposes, a speech prohibition and its exemptions are a single unit of analysis for purposes of determining whether the prohibition is content-based. Consider, for instance, the ordinance in Police Department of Chicago v. Moseley:
"A person commits disorderly conduct when he knowingly:
"(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute . . . ." Municipal Code, c. 193-1 (i)
The proviso protecting picketing of schools involved in a labor dispute renders the ban content-based. There is not a first-step consideration of the proviso on its own followed by a second-step severability inquiry.
Another way of thinking about the Fourth Circuit's ruling on the robocall ban is by analogy to R.A.V. v. City of St. Paul. The ordinance in that case provided:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
As authoritatively construed by state courts, this ordinance extended only to fighting words, which are constitutionally unprotected. The ordinance was nevertheless subject to strict scrutiny because of its content discrimination ("on the basis of race, color, creed, religion, or gender") within the otherwise unprotected class. Similarly, a blanket prohibition on robocalls may be perfectly fine on its own, unconstitutional if exemptions from the prohibition render it content-based.
In any event, I'm guessing this is not the last we'll see of this issue. In addition to the plaintiffs in the Fourth Circuit case who are smarting from their Pyrrhic victory, I expect that robocallers in the Fourth Circuit may also be alarmed. "Severance" of the statutory provision making their conduct legal means that their robocalls will be subject to the general ban. That's not how this should have gone. But now that it has, it's going to take some more lawyer and judge time to sort things out.