Amicus Brief: Supreme Court Should Strike Down Ban on Political Calls

Current law lets the FCC pick and choose what speech is allowed in prerecorded calls

April 1, 2020   •  By IFS Staff   •  
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Washington, DC – The Institute for Free Speech today urged the U.S. Supreme Court to strike down a federal law banning automated political calls. The group’s amicus brief notes that the same law allows government to use automated calls to collect debts and provides for many other exceptions. The Court is scheduled to hear arguments in the case, Barr v. American Association of Political Consultants, on April 22.

“The First Amendment doesn’t allow the government to ban an entire mode of speech, and then exempt favored groups,” said Institute for Free Speech Senior Attorney Parker Douglas. “The Supreme Court should recognize that the government is regulating speech based on its content, in violation of longstanding precedent.”

The federal Telephone Consumer Protection Act (TCPA) generally prohibits the use of any automatic telephone dialing system or artificial or prerecorded messages in calling cell phone numbers. But the TCPA exempts certain calls from the blanket prohibition based on their content, such as those made to collect a federal debt, those made for emergencies, and other categories the Federal Communications Commission has deemed worthy of exemption, such as calls from a medical provider reminding recipients of appointments.

In the landmark 2015 Supreme Court case, Reed v. Town of Gilbert, the Court held that content-based regulations on speech are plainly unconstitutional. That case involved sign restrictions based on the content of messages. A prohibition on automatic calls to cell phones that exempts some calls due to their content flatly violates Reed‘s rule, Douglas wrote.

“The [TCPA’s] blanket prohibition on automatic calling … is appallingly overinclusive. It assumes that all Americans would prefer not to receive [any] political communications[,] and consequently it is not narrowly tailored at all,” IFS’s brief observes.

The lower courts excised certain exemptions but left the general prohibition in place. Both the United States government and the plaintiffs contend that was an error, though for different reasons. The plaintiffs correctly see the blanket ban as unconstitutionally overinclusive. The government believes that exemptions, such as the debt collection exemption, are justified and constitutional. IFS submitted its brief in support of the plaintiffs.

To read the Institute’s brief, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

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