OP-ED: Robocall case exposes a troubling free-speech split on the Supreme Court
On Monday the Supreme Court gladdened the hearts of cellphone users by ruling that a 1991 federal law outlawing most robocalls could largely remain on the books. But it struck down a 2015 amendment that made an exception for calls seeking to collect debts owed to or guaranteed by the federal government.
The carveout, the majority concluded, was an unconstitutional “content-based” restriction on speech. That was small consolation for the political consultants who brought the lawsuit. They still can’t use robocalls to solicit contributions to political campaigns or conduct polls.
The decision in Barr vs. American Association of Political Consultants was obviously a victory for long-suffering cellphone users. But if you read the several opinions in the case, something else becomes clear: The various justices don’t see free speech in the same way.
That’s worrisome because, with the spectacular exception of the 2010 Citizens United campaign-spending case, liberal and conservative justices alike usually have been receptive to free-speech claims under the 1st Amendment.
For example, in 2011 the court ruled 8 to 1 in favor of the hateful Westboro Baptist Church, which had been sued by the father of a Marine killed in Iraq whose funeral had been picketed by the anti-gay “church.” In his majority opinion Chief Justice John G. Roberts Jr. wrote: “As a nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Flash forward to Monday’s robocall decision. Kavanaugh, in an opinion joined by Roberts and Justices Samuel A. Alito Jr. and Clarence Thomas, said the exception for government debt collectors was the sort of content-based regulation of speech that the court subjects to “strict scrutiny.” (Justice Neil M. Gorsuch agreed in a separate opinion. Justice Sonia Sotomayor said the debt-collection provision couldn’t survive even a less exacting standard of scrutiny.)
But three of the court’s liberal justices would have upheld the carveout for robocalls related to government debt collection.
Justice Stephen G. Breyer, in an opinion joined by Justices Ruth Bader Ginsburg and Elena Kagan, suggested that the court needn’t subject the debt-collection carveout to strict scrutiny because it concerned “commercial regulation,” not political speech. (Breyer also warned that too zealous an application of the “content-neutrality principle could undermine regulations that involve speech, such as drug labels or safety warnings in the workplace.)
Actually, so-called commercial free speech has been protected by the court under the 1st Amendment since 1976, when the court struck down a Virginia law prohibiting pharmacists from advertising the prices of prescription drugs.
In the majority opinion in that case, Justice Harry Blackmun wrote: “As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”
Then and now, the idea that the 1st Amendment protects commercial speech is controversial, but the issue hasn’t always divided liberals and conservative members of the court.
Liberal justices William J. Brennan and Thurgood Marshall joined Blackmun’s opinion in the drug advertising case. The only dissenter was the conservative Justice William H. Rehnquist, who complained that the majority “elevates commercial intercourse between a seller hawking his wares and a buyer seeking to strike a bargain to the same plane as has been previously reserved for the free marketplace of ideas.”
Moreover, advertising by profit-making businesses isn’t the only area in which courts have found 1st Amendment protection for speech involving money.
In 1980, the Supreme Court struck down an ordinance that prevented some charities from soliciting door to door. (Rehnquist dissented in that case as well.) And in 2015, the U.S. 7th Circuit Court of Appeals cited a Supreme Court precedent in striking down a local ordinance banning panhandling. It’s a reach to describe a request for “spare change” as a political statement that would be protected under Breyer’s reading of the 1st Amendment.
Not every legal thinker approves of the doctrine of “commercial free speech.” An old joke has it that liberals hate it because it’s commercial and conservatives hate it because it’s free speech. But whatever your opinion, a divide on the court about what the 1st Amendment means is troubling — even in a case about annoying phone calls.