Supreme Court bans debt collection robocalling to cellphones

by Stephen Gardner

Today, the Supreme Court held that collecting government debt by robocalling cellphones didn’t deserve special First Amendment treatment. In Barr v. American Assn. of Political Consultants, Inc., the Court held that a 2015 amendment to the Telephone Consumer Protection Act, which allowed cellphone robocalls to collect federal debts (such as student loans and mortgages), gave unconstitutionally favorable treatment to federal debt collection over other types of speech.

The provision was dead from the first sentence of Justice Kavanaugh’s opinion: “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls. The Federal Government receives a staggering number of complaints about robocalls—3.7 million complaints in 2019 alone. The States likewise field a constant barrage of complaints.”

Justice Kavanaugh proceeded to answer two questions. First, was allowing debt collectors to make robocalls, but prohibiting all other types of robocalls, allowed by the First Amendment? Second, if not, could the debt collection provision be severed?

Answering the first question, Justice Kavanaugh found that the restriction on speech was content-based and thus subject to strict scrutiny. “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 categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.”

Answering the second question, Justice Kavanaugh determined that the debt collection provision was easily severed. “With the government-debt exception severed, the remainder of the law is capable of functioning independently and thus would be fully operative as a law. Indeed, the remainder of the robocall restriction did function independently and fully operate as a law for 20-plus years before the government-debt exception was added in 2015.”

So good news for debtors, especially those in the throes of the COVID-45 pandemic.


In this summary, I say “Justice Kavanaugh” instead of “the Court” because this case resulted in four separate opinions, dissenting and concurring, with the ultimate result being that six justices (the CJ, the conservative four, and Justice Sotomayor) agreed that favoritism given federal debt collection was bad and that it could be severed.

For those keeping score, here’s the breakdown of the four opinions, from the Syllabus:

Kavanaugh, J., announced the judgment of the Court and delivered an opinion, in whichRoberts, 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 Ginsburgand 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.

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