Amicus Curiae Brief — William P. Barr, Attorney General, et al., Petitioners v. American Association of Political Consultants, Inc., et al.

No. 19-631

IN THE

Supreme Court of the United States

WILLIAM P. BARR, ATTORNEY GENERAL;

FEDERAL COMMUNICATIONS COMMISSION,

Petitioners,

v.

AMERICAN ASSOCIATION OF POLITICAL

CONSULTANTS, INC., ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURIAE PUBLIC CITIZEN

AND PUBLIC CITIZEN FOUNDATION

IN SUPPORT OF PETITIONERS

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amici Curiae

March 2020

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 3

I.

The TCPA is not subject to strict scrutiny. ......... 3

A. The TCPA regulates conduct to protect

significant privacy interests. ........................... 3

B. The TCPA’s restriction on automated calls to

cell phones is not content based. ..................... 7

1. The TCPA’s differential regulation of one

category of commercial conduct is not

content based. ............................................. 7

2. AAPC’s alternative arguments for strict

scrutiny fail. .............................................. 11

II. The TCPA’s restriction on robocalls to cell

phones survives strict scrutiny. ........................ 13

III. The debt-collection exception is severable. ....... 16

IV. Respondents’ arguments, even if accepted, would

not justify facial invalidation of the robocalling

provision. ............................................................ 26

CONCLUSION.......................................................... 29

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Alaska Airlines, Inc. v. Brock,

480 U.S. 678 (1987) ............................................. 17

Ayotte v. Planned Parenthood of N. New Eng.,

546 U.S. 320 (2006) ............................................. 17

Bd. of Trustees of State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989) ............................................. 28

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ............................................. 28

Brockett v. Spokane Arcades, Inc.,

472 U.S. 491 (1985) ..................... 17, 18, 26, 27, 29

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) ............................................. 14

Buckley v. Valeo,

424 U.S. 1 (1976) ................................................. 17

Carey v. Brown,

447 U.S. 455 (1980) ............................................... 5

Cent. Hudson Gas & Elec. Corp. v.

Pub. Serv. Comm’n,

447 U.S. 557 (1980) ....................................... 27, 28

City of Ladue v. Gilleo,

512 U.S. 43 (1994) ............................................... 26

City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) ....................................... 18, 20

Clark v. Comty. for Creative Non-Violence,

468 U.S. 288 (1984) ............................................... 4

Cook Cty. v. United States ex rel. Chandler,

538 U.S. 119 (2003) ............................................. 12

iii

Denver Area Educ. Telecommc’ns

Consortium, Inc. v. FCC,

518 U.S. 727 (1996) ............................................. 18

Duguid v. Facebook, Inc.,

926 F.3d 1146 (9th Cir. 2019), pet. for cert.

pending, No. 19-511 (filed Oct. 17, 2019) ..... 16, 23

Fla. Bar v. Went For It, Inc.,

515 U.S. 618 (1995) ............................................. 28

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

561 U.S. 477 (2010) ..................... 17, 22, 23, 24, 25

Frisby v. Schultz,

487 U.S. 474 (1988) ........................................... 4, 5

Frost v. Corp. Comm’n,

278 U.S. 515 (1929) ............................................. 24

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ............................................... 8

Gomez v. Campbell-Ewald Co.,

768 F.3d 871 (9th Cir. 2014),

aff’d, 136 S. Ct. 663 (2016) .................................... 5

Greater New Orleans Broad. Ass’n v. United States,

527 U.S. 173 (1999) ............................................. 21

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) ........................................... 8

Hill v. Colorado,

530 U.S. 703 (2000) ......................................... 7, 10

Legal Servs. Corp. v. Velazquez,

531 U.S. 533 (2001) ............................................. 24

Levin v. Commerce Energy, Inc.,

560 U.S. 413 (2010) ............................................. 19

iv

Matal v. Tam,

137 S. Ct. 1744 (2017) ......................................... 28

McCullen v. Coakley,

573 U.S. 464 (2014) ......................................... 4, 10

Mims v. Arrow Fin. Servs., LLC,

565 U.S. 368 (2012) ........................................... 1, 5

Murphy v. NCAA,

138 S. Ct. 1461 (2018) ................................... 17, 18

Nat’l Inst. of Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018) ......................................... 28

New York v. United States,

505 U.S. 144 (1992) ............................................. 24

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ............................................. 12

Rappa v. New Castle Cty.,

18 F.3d 1043 (3d Cir. 1994) ................................. 21

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) ....7, 9, 10, 11, 12, 20, 22, 23

Reno v. ACLU,

521 U.S. 844 (1997) ............................................. 18

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ............................................. 11

Rowan v. U.S. Post Office Dep’t,

397 U.S. 728 (1970) ............................................... 5

Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995) ............................................. 21

Rumsfeld v. Forum for Academic & Inst. Rights, Inc.,

547 U.S. 47 (2006) ................................................. 8

v

Sessions v. Morales-Santana,

137 S. Ct. 1678 (2017) ................................... 19, 25

Smith v. Daily Mail Publ’g Co.,

443 U.S. 97 (1979) ............................................... 15

Street v. New York,

394 U.S. 576 (1969) ............................................... 5

Smith v. Truman Rd. Dev., LLC,

414 F. Supp. 3d 1205 (W.D. Mo. 2019) ............... 12

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) ......................................... 4, 13

United States v. O’Brien,

391 U.S. 367 (1968) ........................................... 4, 7

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ........................................... 4, 7

Williams-Yulee v. Florida Bar,

575 U.S. 433 (2015) ................................. 14, 15, 16

Wisconsin v. Mitchell,

508 U.S. 476 (1993) ............................................. 10

Statutes

47 U.S.C. § 153(39) ................................................... 12

47 U.S.C. § 608 .................................................... 18, 21

Fair Debt Collection Practices Act,

15 U.S.C. § 1692 et seq. ................................... 8, 11

Pallone-Thune Telephone Robocall Abuse Criminal

Enforcement & Deterrence Act,

Pub. L. No. 116-105, 133 Stat. 3274

(2019) ................................................................. 7, 8

vi

Telephone Consumer Protection Act

47 U.S.C. § 227(b)(1)(A) ............................. 1, 13, 29

47 U.S.C. § 227(b)(1)(A)(iii) ....................... 1, 2, 3, 8

47 U.S.C. § 227(b)(2)............................................ 12

47 U.S.C. § 227(b)(2)(B) ....................................... 27

47 U.S.C. § 227(b)(2)(H) ........................................ 8

47 U.S.C. § 227 note ........................................ 6, 18

Other

Patricia Figliola, Protecting Consumers and

Businesses from Fraudulent Robocalls,

Congressional Research Service

(December 21, 2018),

https://fas.org/sgp/crs/misc/R45070.pdf. ............. 27

S. Rep. No. 116-41 (2019) ..................................... 6, 27

YouMail Robocall Index,

https://robocallindex.com/.................................... 27

INTEREST OF AMICI CURIAE1

Amici curiae Public Citizen and Public Citizen

Foundation (jointly, Public Citizen) are nonprofit consumer-advocacy organizations. Public Citizen has a

longstanding interest in First Amendment issues, including those posed by assertions that reasonable consumer-protection measures infringe freedom of

speech. Public Citizen supports the interest of consumers in being free from the unwanted intrusions of

telemarketers who use robocalling technology to besiege cell phones and home phones. Public Citizen’s

Litigation Group briefed and argued Mims v. Arrow

Financial Services, LLC, 565 U.S. 368 (2012), this

Court’s leading precedent on the Telephone Consumer

Protection Act (TCPA), and currently represents respondents to pending petitions for certiorari raising

First Amendment challenges to the TCPA. Public Citizen submits this brief to address both the First

Amendment and remedial issues posed by this case.

SUMMARY OF ARGUMENT

The TCPA restricts use of automated telephone

equipment to place calls to cell phones. 47 U.S.C.

§ 227(b)(1)(A)(iii). That restriction regulates conduct,

not speech. When conduct regulations burden protected speech, the First Amendment permits the regulations if they are content neutral and serve significant governmental interests. The TCPA robocalling

restriction satisfies this standard because it serves an

interest of the highest order: protecting individuals

––––––––––––––––––––––––

1 This brief was not authored in whole or part by counsel for

a party. No one other than amici curiae made a monetary contribution to preparation or submission of the brief. Counsel for all

parties have consented in writing to its filing.

2

against unwanted and objectionable intrusions into

personal privacy.

The recent amendment that created an exception

to the robocalling restriction allowing use of automated telephone equipment to collect debts owed to or

guaranteed by the United States did not transform

§ 227(b)(1)(A)(iii) from a neutral regulation of conduct

into a content-based one. The exception is defined not

by the content of speech, but by use of automated telephone equipment in a specific form of regulable commercial activity: debt-collection. Moreover, even if

strict scrutiny applied, the TCPA’s restrictions on robocalling would pass muster because they remain narrowly tailored to the compelling privacy-protection interest they serve.

The court of appeals agreed that restricting use of

robocalling technology serves a compelling interest

but found a First Amendment violation because it concluded that the government-debt exception is content

based and that the exception lacks a compelling justification. If that reasoning was correct, however, then

so was the court’s further conclusion that the statute

as a whole may continue to stand if the offending exception is severed. That holding correctly applies this

Court’s severability precedents, which are fully applicable here.

Finally, even if the court of appeals were correct to

find a constitutional violation and incorrect to sever

the amendment responsible for it, the consequence

would not be facial invalidation of the robocall restriction in all its applications. The bulk of the provision’s application is to calls involving commercial

speech that may be subjected to content-based regulation without triggering strict scrutiny. Even if the

3

statute may not validly be applied to respondents’ political speech, this Court’s precedents foreclose a

broader invalidation of the law.

ARGUMENT

I.

The TCPA is not subject to strict scrutiny.

The TCPA provision at issue is not, as respondent

AAPC would have it, a content-based “prohibition on

speech.” E.g., Resp. Br. in Sppt. of Cert. i.2 That characterization is doubly wrong because the provision

does not prohibit speech and is not content based. The

TCPA does not prohibit anyone from calling anyone

else or restrict the messages that callers may communicate. Rather, the provision regulates conduct:

“using” certain automated technology, 47 U.S.C.

§ 227(b)(1)(A), to place calls to cellular telephones, id.

§ 227(b)(1)(A)(iii). The TCPA exception for calls made

to collect a debt owed to

the government does not

transform the provision into a content-based restriction because the exception is based not on the content of speech, but on the nature of the commercial activity in which the user of automated telephone equipment is engaged. Because the challenged provision is

not content based, it is not subject to strict scrutiny.

A. The TCPA regulates conduct to protect

significant privacy interests.

The TCPA’s restriction on the conduct of using particular technologies to place calls does not even arguably call into play the First Amendment scrutiny applicable to direct restraints on speech. Whether regulating robocalls to cell phones is viewed as a time,

––––––––––––––––––––––––

2 This brief refers to respondents American Association of Po-

litical Consultants, et al., collectively as “AAPC.”

4

place, or manner restriction or a regulation of conduct

that burdens speech, its constitutionality depends on

whether it is “justified without reference to the content of the regulated speech, … narrowly tailored to

serve a significant governmental interest, and …

leave[s] open ample alternative channels for communication of the information.” Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989) (citation omitted)

(applying this standard to restrictions on the use of

sound technology in a public forum); see also McCullen

v. Coakley, 573 U.S. 464, 477 (2014) (applying standard to restrictions on access to sidewalks near entrances to clinics); Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 662 (1994) (applying standard to requirements that cable television systems carry certain

broadcast signals); Clark v. Comty. for Creative NonViolence, 468 U.S. 288, 293 (1984) (applying standard

to restrictions on camping on public property); United

States v. O’Brien, 391 U.S. 367, 377 (1968) (applying

standard to prohibition on burning draft cards). Under

this standard, a regulation “‘need not be the least restrictive or least intrusive means of’ serving the government’s interests,” as long as it does “‘not regulate

expression in such a manner that a substantial portion of the burden on speech does not serve to advance

its goals.’” McCullen, 573 U.S. at 486 (quoting Ward,

491 U.S. at 798–99).

A restriction on use of robocalling technology, without more, readily satisfies these standards. The interest it serves is not just significant, but compelling: the

protection of individuals against technologies that

bombard them with unwanted and invasive intrusions

on personal privacy. Protecting individuals against

unwanted intrusions in their homes and other private

spaces is an interest “of the highest order.” Frisby v.

5

Schultz, 487 U.S. 474, 484 (1988) (emphasis added;

quoting Carey v. Brown, 447 U.S. 455, 471 (1980)).

Within such spaces, the government may protect an

individual’s “ability to avoid intrusions,” including by

offering “protection of the unwilling listener.” Id.

“[I]ndividuals are not required to welcome unwanted

speech into their own homes and … the government

may protect this freedom.” Id. at 485; see also Rowan

v. U.S. Post Office Dep’t, 397 U.S. 728, 736 (1970).

Although the interest in avoiding unwanted messages in a public forum is more limited, see Street v.

New York, 394 U.S. 576 (1969), an individual’s personal cell phone is not a public forum to which others

must be permitted unfettered access. For most users,

the cell phones in their pockets are every bit as private

as the telephones in their homes; indeed, for increasing numbers of Americans, the two are one and the

same. See Gomez v. Campbell-Ewald Co., 768 F.3d

871, 876–77 (9th Cir. 2014), aff’d on other grounds,

136 S. Ct. 663 (2016). Just as individuals may be “captive audiences” in their homes to unwanted junk mail,

Rowan, 397 U.S. at 736, they are captive audiences to

unwanted junk calls on their cell phones. Thus, “a sufficient measure of individual autonomy must survive

to permit … exercise [of] control over unwanted

[calls].” Id.

The TCPA’s restriction on use of automated technologies to place calls to cell phones is a narrowly targeted response to Congress’s findings that those technologies pose severe and increasing threats to individual privacy. The TCPA was prompted by “[v]oluminous consumer complaints about abuses of telephone

technology—for example, computerized calls dispatched to private homes.” Mims, 565 U.S. at 370–71;

see also id. at 372. Congress found that “[u]nrestricted

6

telemarketing can be an intrusive invasion of privacy.” 47 U.S.C. § 227 note (congressional findings).

Congress determined that consumers were “outraged

over the proliferation of intrusive, nuisance calls,” and

“consider[ed] automated or prerecorded telephone

calls, regardless of the content or the initiator of the

message, to be a nuisance and an invasion of privacy.”

Id. The robocalling restriction aims precisely at the

practice that most directly implicates these concerns:

use of automated dialing technology to overwhelm

consumers’ cell phones with a flood of calls and texts,

and prerecorded voices that heighten the recipients’

sense of an unwanted intrusion into their privacy.

The interest that the TCPA’s restriction on the use

of calling technology addresses remains substantial.

“Unsolicited robocalls are among the top consumer

complaints to the [Federal Communications Commission (FCC)], the Federal Trade Commission (FTC) and

many State attorneys general,” and “available data indicate that robocalls are likely to increase and continue to be a major concern for consumers.” S. Rep. No.

116-41, at 1–2 (2019). “It is estimated that in 2019,

nearly 50 percent of all calls to mobile phones will be

scam robocalls,” and that “robocalls rang Americans’

phones almost 5 billion times in April 2019—that is

close to 2,000 calls per second.” Id. at 2. Consumers

remain “plagued by illegal robotic or prerecorded messages,” so much so that “frustrated recipients, fearing

unwanted or illegal robocalls, are hesitant to answer

their phones” even for legitimate calls. Id. at 2, 3. The

problem remains severe enough that large bipartisan

majorities in both Houses of Congress recently enacted, and the President signed into law, legislation

giving the government new enforcement tools and

mandating new efforts to crack down on automated

7

calls that are illegal under existing law. See PalloneThune Telephone Robocall Abuse Criminal Enforcement & Deterrence Act (TRACED Act), Pub. L. No.

116-105, 133 Stat. 3274 (2019).

B. The TCPA’s restriction on automated

calls to cell phones is not content based.

Restricting use of automated calling equipment to

place calls to cellular phones without their owners’

consent readily meets the criterion of content-neutrality on which application of the Ward and O’Brien lines

of cases depends. The consent requirement turns on

whether the recipient has expressly manifested agreement to receive calls from the sender using the restricted technologies, not on the call’s content. On its

face, this requirement does not draw “distinctions

based on the message a speaker conveys,” Reed v.

Town of Gilbert, 135 S. Ct. 2218, 2227 (2015), and its

application does not “depend entirely on the communicative content” of a call, id. Moreover, the restriction

on use of automated calling equipment without consent is “justified without reference to the content of …

regulated speech,” Ward, 491 U.S. at 791, and was not

“adopted by the government ‘because of disagreement

with the message [the speech] conveys.” Reed, 135 S.

Ct. at 2227 (quoting Ward, 491 U.S. at 791). The consent requirement—the central feature of the automated-equipment restriction—is, in itself, content

neutral. See, e.g., Hill v. Colorado, 530 U.S. 703, 723

(2000).

1. The TCPA’s differential regulation of

one category of commercial conduct

is not content based.

The Fourth Circuit’s determination that the

TCPA’s regulation of the use of automated equipment

8

to call cell phones is content based rests on an amendment, enacted nearly 25 years after the TCPA’s original passage, that exempts the use of automated equipment for calls “made solely to collect a debt owed to or

guaranteed by the United States.” 47 U.S.C.

§ 227(b)(1)(A)(iii).3 That exception, however, is based

not on the content of particular messages, but on

whether the otherwise-restricted use of automated

telephone equipment is part of a course of commercial

conduct: collection of debt owed to or guaranteed by

the federal government. There is no doubt that Congress can subject activity carried out for the purpose

of collecting debts to regulation distinct from that imposed on other forms of conduct, and that the terms of

regulation may depend on whose debt is being collected. See, e.g., Henson v. Santander Consumer USA

Inc., 137 S. Ct. 1718 (2017) (construing terms of Fair

Debt Collection Practices Act (FDCPA), 15 U.S.C.

§ 1692 et seq.). Such regulation is not content-based

regulation of speech merely because debt-collection,

like all commercial activity, is “in part initiated, evidenced, or carried out by means of language, either

spoken, written, or printed.” Rumsfeld v. Forum for

Academic & Inst. Rights, Inc., 547 U.S. 47, 62 (2006)

(quoting Giboney v. Empire Storage & Ice Co., 336 U.S.

490, 502 (1949)).

Thus, enactment of an exception for some debt-collection activity did not turn the TCPA into a law that

––––––––––––––––––––––––

3 The statute, as more recently amended by the TRACED Act,

potentially subjects such debt-collection activity to a restriction

to which other commercial activity is not subject: The FCC may

by regulation limit the number and duration of calls to cell

phones by persons seeking to collect a debt owed to or guaranteed

by the United States. 47 U.S.C. § 227(b)(2)(H). No such regulation is currently in effect.

9

“applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 135 S.

Ct. at 2227. Nor is the “particular subject matter” of a

call, id., the basis for determining whether the statutory restrictions apply. The applicability of the statute

depends in the first instance on the manner of calling

a cell phone (through an autodialer and/or a recorded

message) and the presence or absence of consent, regardless of the message the caller wishes to convey.

The determination whether the exemption applies

rests on the existence of a debt to or guaranteed by the

federal government, on the caller’s engagement in the

activity of attempting to collect that debt, and on the

call’s function as a part of that activity.

The debt-collection exception thus does not require

a court to examine a message’s content. Here, for example, respondent AAPC does not claim that its members have authority to collect debt owed to or guaranteed by the federal government, that they engage in

any such debt-collection activity, or that they target

their robocalls at persons owing such debt. No examination of their messages, therefore, is necessary to determine that they could not qualify for the exemption.

The same is true for the vast bulk of telemarketing

messages. Only persons engaged in collecting debts

owed to or guaranteed by the federal government, and

sending messages to persons who owe such debts, are

eligible for the exemption. A call whose sender and recipient lack those characteristics—which are not dependent on the ideas expressed in the call—falls outside the exemption without regard to its content.

That examination of a call’s message may play a

role in determining whether the caller’s conduct qualifies it for the debt-collection exception in some instances does not make the regulation content based.

10

Where a statute applies to or exempts conduct carried

out for a particular purpose (here, the use of an autodialer or recorded message to collect debts owed to or

guaranteed by the federal government), the possibility

that the actor’s speech may be examined to determine

the conduct’s purpose does not render the statute content based. This Court has “never held, or suggested,

that it is improper to look at the content of an oral or

written statement in order to determine whether a

rule of law applies to a course of conduct.” Hill, 530

U.S. at 721. The First Amendment “does not prohibit

the evidentiary use of speech to … prove motive or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993).

Although the First Amendment may limit regulation of speech “based on its … purpose,” Reed, 135 S.

Ct. at 2227, it does not prohibit regulating conduct

based on its purpose, even when speech may be evidence of that purpose. In McCullen, for example, the

Court held that a statute prohibiting presence on sidewalks near clinic entrances was content neutral, see

573 U.S. at 485, even though it had exemptions that

depended on the purpose of a person’s use of the sidewalks, see id. at 482–83. One exemption covered those

using the sidewalk “solely for the purpose of reaching

a destination other than” the clinic. Id. at 472.

Whether a person stopped on the sidewalk to express

a pro- or anti-abortion view would be highly relevant

evidence of whether his purpose was something other

than merely getting from point A to point B, but the

Court rejected the argument that the statute’s exemptions rendered it content based.

At bottom, the TCPA remains content neutral because it neither “target[s] speech based on its communicative content” nor “applies to particular speech because of the topic discussed or the idea or message

11

expressed.” Reed, 135 S. Ct. at 2226–27. The Act’s justifications, moreover, rest on the impact of unwanted

telemarketing calls on personal privacy, regardless of

their contents. And there is no reason to think that the

TCPA, or the exception, was adopted based on agreement or disagreement with particular messages that

callers use robocalls to convey.

The government-debt exception also does not involve prohibited discrimination among viewpoints,

based on “the opinion or perspective of the speaker.”

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 829 (1995). Exempting calls made to collect

debts does not discriminate among “viewpoints” about

government-backed debt. Debt-collection is a regulable form of commercial activity, not the expression of

a “viewpoint” about debt. Otherwise, the FDCPA,

which regulates how debt collectors may contact consumers in connection with attempts to collect a debt,

would be subject to strict scrutiny because it disfavored pro-debt-collection “viewpoints,” as compared to

communications about debts to which the FDCPA

does not apply. The TCPA, like the FDCPA, does not

suppress or favor expressions of opinion about debt. It

provides that a specific form of activity (collecting government-backed debt) may be carried out through particular conduct (use of automated telephone equipment).

2. AAPC’s alternative arguments for

strict scrutiny fail.

Beyond the government-debt exception, AAPC asserts that other features of the TCPA call for strict

scrutiny because they are content or speaker based.

The court of appeals properly gave no credence to

these alternative arguments.

12

First, the Fourth Circuit found that AAPC had

waived any argument that the FCC’s regulatory authority to exempt calls from the automated-equipment

restriction, see 47 U.S.C. § 227(b)(2), renders the statute content based. AAPC explicitly disclaimed any

challenge to specific regulatory exemptions, and it did

not adequately flesh out any argument that the statutory provisions granting the FCC regulatory authority

rendered the statute itself content based on its face.

See Pet. App. 10a n.7. Even absent AAPC’s waiver,

however, the TCPA’s grant of regulatory authority

could render the law facially content based only if it

required content-based exceptions. It does not do so.

Second, AAPC contends that because the TCPA’s

restrictions apply to “persons”—a term that does not

encompass the federal government, see 47 U.S.C.

§ 153(39)—the statute is speaker based because it provides “broad exemption” for calls by governments.

Resp. Br. in Sppt. of Cert. 14 n.4.4 The Fourth Circuit,

however, did not address that argument. In any event,

the First Amendment neither applies to government

speech nor requires the government to impose on itself

regulations that it imposes on private conduct. See,

e.g., Pleasant Grove City v. Summum, 555 U.S. 460,

467–68 (2009); see also Reed, 135 S. Ct. at 2233 (Alito,

––––––––––––––––––––––––

4 AAPC’s assertion that the Act exempts all state and local

governments and their agents, Resp. Br. in Sppt. of Cert. 4, is not

supported by the FCC ruling it cites, which addressed only the

federal government and its agents. The Act’s application to state

and local governments is unsettled. See Smith v. Truman Rd.

Dev., LLC, 414 F. Supp. 3d 1205, 1232 (W.D. Mo. 2019). Moreover, the applicable definition of “persons” includes “corporations.” 47 U.S.C. § 153(39). Both terms apply to municipal corporations. See Cook Cty. v. United States ex rel. Chandler, 538 U.S.

119, 125–29 (2003).

13

J., concurring). Moreover, speaker-based restrictions

require strict scrutiny only where “the legislature’s

speaker preference reflects a content preference.”

Turner, 512 U.S. at 658. Here, there is no reason to

think that Congress’s conventional choice of regulating the activities of “persons” reflects a content preference.

Third, AAPC argued at the petition stage that the

TCPA’s exception allowing use of robocalls for “emergency purposes,” 47 U.S.C. § 227(b)(1)(A), makes the

statute content based. Resp. Br. in Sppt. of Cert. 16.

Yet again, the Fourth Circuit did not consider such a

challenge to be before it. See Pet. App. 5a. In any

event, the emergency exception does not mean that

“the only way to determine whether the automatedcall prohibition applies is to consider the content of the

call.” Resp. Br. in Sppt. of Cert. 16. Rather, the exception applies when a call is made in emergency circumstances affecting health and safety. See Pet. App. 20a.

Moreover, by definition, the exception serves a compelling interest, and it does not undermine the privacy

interests the TCPA protects. See id. Its existence

therefore provides no basis for questioning the statute’s constitutionality.

II. The TCPA’s restriction on robocalls to cell

phones survives strict scrutiny.

Because the debt-collection exception is not content based, strict scrutiny does not apply. Nonetheless, the automated-equipment restriction would survive strict scrutiny because, as a whole, it is narrowly

tailored to serve the compelling interest in protecting

personal privacy. Although that interest would also be

served by restricting robocalls to collect governmentbacked debts, Congress’s decision to exempt such calls

14

does not mean that regulation of the use of automated

telephone equipment for the calls that remain subject

to that restriction no longer protects personal privacy.

In Williams-Yulee v. Florida Bar, this Court emphasized that “the First Amendment imposes no freestanding ‘underinclusiveness limitation.’” 575 U.S.

433, 449 (2015). Thus, when a challenger asserts that

the constitutional flaw in a statute is that it “violates

the First Amendment by abridging too little speech,”

id. at 448, courts should inquire into whether the

claimed “underinclusiveness … raise[s] ‘doubts about

whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular

speaker or viewpoint.’” Id. at 449 (quoting Brown v.

Ent. Merchs. Ass’n, 564 U.S. 786, 802 (2011)). Courts

should also examine whether a law’s underinclusiveness “reveal[s] that [it] does not actually advance a

compelling interest.” Id. If, however, the law serves a

compelling interest as far as it goes, it is not unconstitutional merely because it could have gone further.

Because lawmakers “need not address all aspects of a

problem” and “may focus on their most pressing concerns,” a law may survive “even under strict scrutiny”

notwithstanding that it “conceivably could have restricted even greater amounts of speech in service of

[its] stated interests.” Id.

Laws are most likely to fail such scrutiny when

they are “wildly underinclusive,” Brown, 564 U.S. at

802, or leave unregulated “vast swaths” of conduct

that implicate their asserted interests, WilliamsYulee, 552 U.S. at 448, because such laws are more

likely to target particular messages, speakers, or

viewpoints. Or a law may be so underinclusive that “it

does not accomplish its stated purpose” at all—for example, a law that purportedly protects anonymity of

15

juvenile offenders while permitting their names to be

broadcast on electronic media. Smith v. Daily Mail

Publ’g Co., 443 U.S. 97, 105 (1979). By contrast, where

a statute continues to “aim squarely at … conduct”

central to its concerns and is not “riddled with exceptions,” Williams-Yulee, 552 U.S. at 449, it does not fail

strict scrutiny solely because it does not reach as far

as it might.

The TCPA’s government-debt exception does not

prevent its robocalling restrictions from advancing the

compelling interest in protecting consumer privacy. In

light of the vast swaths of intrusive calls that remain

subject to restriction, the exception does not make the

statute wildly underinclusive. It achieves its purpose

of restricting a broad universe of calls, although it

does not prevent one significant category of debt-collection robocalls.5 And the breadth of its coverage

rules out the inference that it is not genuinely directed

at protecting privacy but is instead targeted at disfavored messages.

To be sure, the law’s privacy-protection purposes

would be better served if the exception did not exist.

But Congress’s decision to carve some calls out of the

robocalling restriction based on countervailing considerations does not negate what the statute still accomplishes. Thus, even if strict scrutiny applied, the law

would satisfy that scrutiny because the robocalling restriction serves a compelling interest.

––––––––––––––––––––––––

5 The limitation of the statute’s coverage to “persons” likewise

does not render ineffectual its restrictions on the countless calls

those “persons” would place using automated telephone equipment in its absence.

16

III. The debt-collection exception is severable.

Having determined the TCPA to be content based

because of the addition of the government-debt exception, the Fourth Circuit held that the statute as

amended violated the First Amendment. The court,

however, did not conclude that the statute’s restrictions on the use of automated telephone equipment to call cell phones do not serve a compelling governmental interest. Instead, flipping Williams-Yulee

on its head, the court held that the exception “does not

serve the compelling governmental interest in protecting privacy” that the statute otherwise advances. Pet.

App. 18a. The Ninth Circuit likewise concluded in

Duguid v. Facebook, Inc., that the proper focus was on

whether the debt-collection exception furthers a compelling government interest, “not on the TCPA overall.” 926 F.3d 1146, 1155 (9th Cir. 2019). That court,

too, concluded that the exception does not serve the

compelling interest in protecting consumer privacy

and, in fact, has a “detrimental impact” on that interest. Id. at. 1155.6

If, as the Fourth and Ninth Circuits concluded, the

TCPA’s sole constitutional flaw is that Congress

amended it to add an exception that fails to advance

the compelling interest the statute otherwise serves,

their holdings that the amendment creating the exception is severable and that the restriction on robocalls to cell phones is otherwise constitutional is

––––––––––––––––––––––––

6 Both the Fourth and Ninth Circuits also held that the ex-

ception is not justified by a compelling interest in protecting the

public fisc. See Pet. App. 18a–19a n.10; Duguid, 926 F.3d at 1156.

In this Court, the government does not appear to contend that, if

it must provide a compelling justification for the exception, its

fiscal interests suffice. See Pet’rs Br. 24–33.

17

correct. The lower courts’ rulings on severability adhere both to dictates of common sense and to the longsettled legal principle that unconstitutional provisions of a federal statute must be severed unless severance would be inconsistent with congressional intent or leave the statute inoperative. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Murphy

v. NCAA, 138 S. Ct. 1461, 1482 (2018). Here, there can

be no doubt that Congress would have enacted the

TCPA without the limited exception that, in those

courts’ view, rendered it improperly content based—

because Congress in fact did so. Accordingly, a remedy

that preserves the fundamental purpose of the TCPA

best comports with severability principles and the congressional intent they seek to honor.

A. This Court has often stated that when a court

finds a constitutional defect in a statute, it generally

has a duty “‘to limit the solution to the problem,’ [by]

severing any ‘problematic portions while leaving the

remainder intact.’” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010)

(quoting Ayotte v. Planned Parenthood of N. New Eng.,

546 U.S. 320, 328–329 (2006)). Thus, if the statute is

“fully operative as a law” with the defective provision

excised, a court “must sustain its remaining provisions ‘[u]nless it is evident that the Legislature would

not have enacted those provisions … independently of

that which is [invalid].’” Id. at 509 (citations omitted).

Accord, e.g., Murphy, 138 S. Ct. at 1482; Alaska Airlines, 480 U.S. at 684; Buckley v. Valeo, 424 U.S. 1,

108 (1976).

Under this “normal rule,” where the conditions for

severability are met, “partial, rather than facial, invalidation is the required course.” Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 504 (1985). These princi-

18

ples apply to First Amendment cases as fully as they

do to cases involving other constitutional provisions.

See, e.g., Reno v. ACLU, 521 U.S. 844, 882–83 (1997);

Denver Area Educ. Telecommc’ns Consortium, Inc. v.

FCC, 518 U.S. 727, 767 (1996); City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 772 (1988);

Brockett, 472 U.S. at 506.

Below, AAPC argued, and the court of appeals

held, that the government-debt exception made the

TCPA content based and unconstitutional. Having accepted the argument that preferential treatment for

one type of call lacked adequate justification, the court

naturally focused on whether that problematic preference was severable. Applying conventional principles,

the court correctly concluded that the governmentbacked debt exception meets the criteria for severance. The exception is a discrete “textual provision[]

that can be severed” without rewriting the statute,

Reno, 521 U.S. at 882, and the statute is, without

question, “fully operative” without the exception, Murphy, 138 S. Ct. at 1482. Indeed, the TCPA operated

without the exception for nearly a quarter of a century. And, together, the structure and history of the

statute, the Communications Act’s severability provision, 47 U.S.C. § 608, and Congress’s statutory findings concerning the harms of telemarketing, see 47

U.S.C. § 227 note, leave no doubt that Congress would

never have chosen to sacrifice the robocalling restriction if it could not make one exception for calls to

collect government-backed debt.

The Fourth Circuit’s severability ruling not only

respected congressional intent, but also directly addressed AAPC’s constitutional claims by excising the

exact part of the statute that, the court concluded, violated AAPC’s rights by unjustifiably giving other

19

callers more favorable treatment. The ruling was consistent with this Court’s recognition, in the equal protection context, that when a statutory exception impermissibly gives a small group more favorable treatment than the majority, a court has a remedial choice

between “extend[ing] favorable treatment” to everyone or eliminating the exception and subjecting everyone to the unfavorable general rule. Sessions v. Morales-Santana, 137 S. Ct. 1678, 1701 (2017). As in

other cases involving severance, the choice in such circumstances depends on “the remedial course Congress

likely would have chosen ‘had it been apprised of the

constitutional infirmity.’” Id. (quoting Levin v. Commerce Energy, Inc., 560 U.S. 413, 426–27 (2010)).

Here, “considering whether the legislature would have

struck an exception and applied the general rule

equally to all, or instead, would have broadened the

exception,” id. at 1700, can lead only to one result:

Congress would have chosen to dispense with the exception rather than give robocallers free rein.

B. Despite the Fourth Circuit’s faithful application of this Court’s severability precedents, AAPC insists that some of the Court’s First Amendment decisions imply that there is an exception to the general

requirement that constitutionally problematic provisions be severed: A court may not, AAPC contends,

sever a content-based exception to a restriction affecting speech even to save an otherwise content-neutral

statute. See Resp. Br. in Sppt. of Cert. 19–20. But

AAPC’s petition-stage brief does not cite a single decision of this Court that holds or even suggests that severance is impermissible in these circumstances. Instead, AAPC cites a list of cases in which this Court

struck down overbroad content-based speech restrictions without severing content-based exceptions

20

that played some role in the Court’s conclusion that

the laws did not withstand strict scrutiny. See id. at

20–21. Not one of the cases AAPC cites, however, supports its contention that a discrete content-based exception can never be severed from an otherwise content-neutral statute to remedy a First Amendment violation. Indeed, none of the Court’s decisions cited by

AAPC says anything about severability.

For example, AAPC’s leading case, Reed, 135 S. Ct.

2218, contains no holding whatsoever on severability.

The Reed opinion mentions neither the subject nor the

word. That Reed does not address severance does not,

as AAPC suggests, imply a sub silentio holding that

severance is categorically prohibited when a statute

contains content-based exceptions. Rather, Reed does

not discuss severability because the respondent’s brief

in this Court did not argue for severability and referred to it only hypothetically in a footnote. See Reed,

Resp. Br. 48 n.15, No. 13-502 (filed Nov. 14, 2014). In

addition, because Reed involved a city ordinance, severability would have been a question of state law. See

City of Lakewood, 486 U.S. at 772. Moreover, Reed did

not involve one or two content-based exceptions to an

otherwise neutral statute. There, the sign code at issue was pervasively content based, defining different

categories of signs based on their content and subjecting each category to different restrictions. 135 S. Ct.

at 2227. The circumstances of Reed are starkly different from those posed by the single TCPA exception

that the Fourth Circuit determined to be content

based and severed.

The same is true of the other cases AAPC invokes.

Resp. Br. in Sppt. of Cert. 20–21. Not one discusses

severability, let alone holds severance impermissible.

None concerned a law that would have been content

21

neutral but for a single, discrete exception. And all but

two involved state or local laws, so severance would

have been a state-law issue that this Court had no reason to address. The only two cases involving federal

laws, Greater New Orleans Broad. Ass’n v. United

States, 527 U.S. 173, 190 (1999), and Rubin v. Coors

Brewing Co., 514 U.S. 476, 488–91 (1995), did not address severability because no one exception could

cleanly be excised from the statutes at issue in a way

that would even arguably address the numerous defects the Court found in them. In Greater New Orleans, the statute was “so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.” 527 U.S. at 190. In Rubin, the restriction

on alcohol-content advertising was condemned by the

“overall irrationality of the Government’s regulatory

scheme,” 514 U.S. at 488, which could not have been

cured by surgically removing one or a handful of exceptions. No decision of this Court suggests that the

Fourth Circuit’s severability holding, in the dramatically different circumstances here, was incorrect.

AAPC invokes Rappa v. New Castle County, 18

F.3d 1043, 1072–74 (3d Cir. 1994), as exemplifying the

proper approach to severance. Resp. Br. in Sppt. of

Cert. 21–22. That decision, however, correctly

acknowledges that severing an exception to a speech

restriction to restore a statute’s content neutrality is

appropriate where there is specific evidence that the

legislature would “prefer[] … elimination of the exception.” See id. at 1073. Here, the Communication Act’s

severability clause, 47 U.S.C. § 608, and the statute’s

history supply exactly such specific evidence. Severing

the TCPA’s debt-collection exception does not extend

regulation to calls that Congress never contemplated

prohibiting, but only brings back within the TCPA a

22

single category of calls that were subject to it for many

years. It is abundantly clear that elimination of the

later-added exception, rather than invalidation of the

TCPA’s robocalling restriction as a whole, would best

respect Congress’s legislative choices.

C. AAPC argues that because it challenged the “restriction on automated calls,” Resp. Br. in Sppt. of

Cert. 18, it necessarily follows that the “restriction is

the ‘problematic portion[]’ of the statute that violates

the First Amendment[],” id. (quoting Free Enter.

Fund, 561 U.S. at 508), and “[t]he restriction must

therefore be set aside,” id. According to AAPC, the

court of appeals “concluded otherwise by mischaracterizing this case as a challenge to the governmentdebt exception, instead of to the automated-call restriction.” Id. AAPC contends that this view of the case

“makes no sense” because “[t]he First Amendment

prohibits restrictions on speech—not exemptions from

those restrictions that permit speech.” Id.

AAPC misunderstands the consequences of its own

constitutional theory. To be sure, AAPC challenged

the TCPA’s restriction on its members’ use of automated telephone equipment—a point the Fourth Circuit fully understood. See Pet. App. 10a. But the basis

of its challenge, and the argument accepted by the

Fourth Circuit, was not that the restriction itself

would be improper in the absence of the exception. Rather, AAPC’s theory was that the enactment of the exception rendered the TCPA unconstitutional by unjustifiably treating some calls more favorably than others

on the basis of content. Thus, at AAPC’s urging, the

Fourth Circuit held that the government was required

to “show that the debt-collection exemption has been

narrowly tailored to further a compelling governmental interest.” Pet. App. 15a (citing Reed, 135 S. Ct. at

23

2231). Similarly, the Ninth Circuit in Duguid held

that the government was required to “demonstrate

that the TCPA’s ‘differentiation between [robocalls to

collect a debt owed to or guaranteed by the United

States] and other types of [robocalls] ... furthers a compelling government interest and is narrowly tailored

to that end.’” 926 F.3d at 1155 (quoting Reed, 135 S.

Ct. at 2231; brackets by Duguid court). Both courts, in

short, correctly understood that the challengers were

asking them to conclude that, under Reed, they had to

determine whether the exception had a compelling justification.

AAPC cannot have it both ways. Having successfully argued that it was the TCPA’s preferential treatment of one type of call that lacked adequate justification, AAPC cannot now complain that the court of appeals followed the logic of the argument and severed

the exemption rather than striking down the robocalling restriction in its entirety. In light of the court’s

conclusion that the flaw in the statute is not that restricting robocalls fails to serve a compelling interest,

but that differentiating between the robocalls covered

by the exception and those subject to the restriction is

unjustified, the court correctly concluded that the

“problematic portion[]” of the statute, Free Enter.

Fund, 561 U.S. at 508, was the exception. The exception was therefore the proper focus of the court’s severability analysis.

D. AAPC’s further assertion that “[t]he Fourth

Circuit’s ruling rewrites the statute,” Resp. Br. in

Sppt. of Cert. 19, is likewise wrong. The Fourth Circuit (and the Ninth Circuit in Duguid) did not “rewrite” anything. They did no more than what this

Court’s precedents allow: They severed a discrete

amendment to the statute and left the remainder of

24

the law just as it was before that provision was enacted. If such a surgical approach constituted “rewriting,” severance would never be permissible. AAPC’s

suggestion that severing a problematic provision from

a statute violates “separation-of-powers principles” by

usurping Congress’s legislative role, id., gets the matter backwards. Severance of discrete statutory provisions shows respect for Congress’s role by ensuring

that its “overall intent” is not “frustrated,” New York

v. United States, 505 U.S. 144, 186 (1992), while at the

same time avoiding the exercise of “editorial freedom”

that properly “belongs to the Legislature, not the Judiciary,” Free Ent. Fund, 561 U.S. at 510.

AAPC’s assertion that the severance of the exception not only “rewrites” the statute, but also “makes

more speech unlawful than Congress ever intended,”

Resp. Br. in Sppt. of Cert. 19, is flatly wrong. As originally enacted by Congress and in force for more than

two decades, the statute did not except calls to collect

government-backed debt. It was not until 2015 that

Congress amended the statute to create the exception

that, the court of appeals held, made the law unconstitutional. Under such circumstances, the statute

that “before the amendment, was entirely valid,” still

“stand[s] as the only valid expression of legislative intent.” Frost v. Corp. Comm’n, 278 U.S. 515, 526–27

(1929). Thus, if there were some general principle

against extending the reach of a statute by severing

an invalid exception—a proposition that Justice

Scalia once rightly characterized as highly doubtful,

see Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 561

(2001) (Scalia, J., dissenting)—it would be wholly inapplicable here. See Frost, 278 U.S. at 525–26.

E. Finally, AAPC contends that, in circumstances

like those here, severance creates a disincentive to

25

assertion of meritorious constitutional claims because

it has the effect of leaving the successful challenger to

a statute subject to the same statutory restrictions

that would have applied to it had it not raised its

claims at all. As this Court has recognized, however,

the proper application of severability doctrine sometimes has such consequences. In Sessions, for example, when this Court severed and invalidated a statutory provision giving preferential treatment to children born abroad to unwed citizen mothers, the result

was that the child of an unwed citizen father who successfully challenged the law received no other relief.

See 137 S. Ct. at 1701. Likewise, in Free Enterprise

Fund, the effect of this Court’s severability ruling was

to deny the petitioners the relief they wanted: an injunction that would have stripped the Public Company Accounting Oversight Board of all power and authority, and prohibited it from regulating and investigating them. See 561 U.S. at 508. The Court’s severability doctrine reflects the view that parties should not

receive unduly broad remedies as a reward for raising

valid constitutional claims. Instead, the remedy for a

constitutional violation should be no broader than necessary to eliminate the violation while preserving

Congress’s legislative handiwork to the extent consistent with the Constitution and with congressional

intent.

Severance in these circumstances does not afford a

remedy that the plaintiff lacks standing to seek. To

the extent that being subjected to content discrimination without proper justification is a cognizable First

Amendment injury, ending such discrimination by invalidating and severing the offending provisions redresses that injury, just as the relief in Sessions redressed the complained-of equal-protection violation

26

in that case. Cf. City of Ladue v. Gilleo, 512 U.S. 43,

53 (1994) (noting that when a statute is challenged

under a “content discrimination rationale,” eliminating content-based exemptions removes the constitutional defects in a statute unless it “is also vulnerable

because it prohibits too much speech” without regard

to the exemptions).

In any event, the suggestion that severance will deter meritorious constitutional challenges is unfounded. Parties do not know the result of the severability calculus in advance and have ample incentive to

raise constitutional claims both defensively and offensively when they face potential liability under a statute or otherwise stand to gain if it is struck down. Constitutional litigation is hardly in short supply even

though obtaining a remedy in such cases, like establishing liability, is always uncertain.

IV. Respondents’ arguments, even if accepted,

would not justify facial invalidation of the

robocalling provision.

Notwithstanding the foregoing, if the Court were

to agree with AAPC on the First Amendment and severability issues, the proper relief would be limited to a

declaration that the TCPA provision restricting robocalls to cell phones cannot permissibly be applied to

AAPC’s calls involving fully protected, political

speech. Declaring the provision unconstitutional on

its face—and hence unenforceable even against commercial speakers who may permissibly be subjected to

content-based regulation—would violate “the rule

that a federal court should not extend its invalidation

of a statute further than necessary to dispose of the

case before it.” Brockett, 472 U.S. at 502. Because in

this case a plaintiff is claiming that a statute cannot

27

constitutionally be applied to its own speech, rather

than relying on the overbreadth doctrine to assert the

rights of others, the relief to which the plaintiff is entitled if it succeeds is limited to an order under which

the statute is “declared invalid to the extent that it

reaches too far, but otherwise left intact.” Id. at 504.

AAPC differs from the great majority of users of

telephone equipment subject to the TCPA’s restrictions on automated calls to cell phones in that its

members assert an intention to engage in fully protected political speech.7 By contrast, the vast bulk of

telemarketing that is subject to the TCPA’s robocalling restriction involves commercial speech or the promotion of scams. See S. Rep. No. 116-41, at 1–4; see

also Patricia Figliola, Protecting Consumers and Businesses from Fraudulent Robocalls, Congressional Research Service (December 21, 2018), https://fas.org/

sgp/crs/misc/R45070.pdf.; YouMail Robocall Index,

https://robocallindex.com/. The statute evinces Congress’s special concern for commercial robocalling activity by limiting the FCC’s authority to exempt it

from the law’s provisions. See 47 U.S.C. § 227(b)(2)(B).

This Court’s precedents have long recognized that

regulations affecting commercial speech, including

regulations that are based on the contents of different

types of commercial messages, are not subject to strict

scrutiny, but face only intermediate scrutiny under

Central Hudson Gas & Electric Corp. v. Public Service

––––––––––––––––––––––––

7 See Pet’rs Br. i (“Respondents wish to use an automatic tel-

ephone dialing system or an artificial or prerecorded voice to

make calls to the cell phones of potential or registered voters to

solicit political donations and to advise on political and governmental issues.” (citing First Am. Complaint ¶¶ 8–12, J.A. 32–

34)).

28

Commission, 447 U.S. 557 (1980). See Nat’l Inst. of

Family & Life Advocates v. Becerra, 138 S. Ct. 2361,

2372 (2018); see, e.g., Fla. Bar v. Went For It, Inc., 515

U.S. 618 (1995); Bd. of Trustees of State Univ. of N.Y.

v. Fox, 492 U.S. 469, 473–81 (1989). As Justice Kennedy recognized in his concurring opinion in Matal v.

Tam, “content based discrimination” is not “of serious

concern in the commercial context.” 137 S. Ct. 1744,

1767 (2017).

Importantly, the less stringent commercial-speech

standard governs the application of content-based

time, place, or manner regulations to commercial

speech even when such regulations also affect some

fully protected speech. See Fox, 492 U.S. at 484–85. In

such circumstances, a commercial speaker may obtain

facial invalidation of a regulation, based on its failure

to satisfy strict scrutiny as applied to fully protected

speech, only if the unconstitutional application of the

statute to non-commercial speech is “substantial, not

only as an absolute matter, but ‘judged in relation to

the statute’s plainly legitimate sweep.’” Id. at 485

(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973)). Here, the TCPA’s legitimate application to

commercial robocalling (and telemarketing scams)

dwarfs its assertedly unconstitutional applications to

fully protected speech. Accordingly, a commercial

challenger could not obtain an order striking down the

statute on its face. “[W]hatever overbreadth may exist

should be cured through case-by-case analysis of the

fact situations to which [the law’s] sanctions, assertedly, may not be applied.” Broadrick, 413 U.S. at 615–

16.

Here, the question of facial invalidity of the statute

in all its potential applications, including to commercial robocalls, is not properly before the Court, as

29

AAPC’s desire to make calls subject to the restriction

on automated calls to cell phones is limited to political

calls. In such circumstances, the Court has no occasion

to set aside other applications of the statute that

would not raise similar constitutional concerns. Rather, as the Court held in Brockett, in a case “where

the parties challenging the statute are those who desire to engage in protected speech that the overbroad

statute purports to punish,” 472 U.S. at 504, a court

should go no further than necessary to redress the invalid application of the law to the challengers. Thus,

even if (1) the government-debt exception made the

statute’s application to fully protected speech subject

to strict scrutiny, (2) the statute failed such scrutiny,

and (3) the exception were inseverable, the Court

should do nothing to limit the statute’s legitimate application to the vast quantity of commercial robocalling that would be unleashed on consumers if the

TCPA’s restriction on robocalls to cell phones were

struck down on its face.

CONCLUSION

The Court should reverse the judgment of the court

of appeals that 47 U.S.C. § 227(b)(1)(A)(iii) is unconstitutional or, in the alternative, affirm the court of

appeals’ holding that the government-debt exception

is severable. In no event should the Court hold that

§ 227(b)(1)(A)(iii) is unconstitutional in all its applications.

30

Respectfully submitted,

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amici Curiae

March 2020