Justice Breyer Warns Robocall Ruling ‘Untethered’ from First Amendment

Justice Stephen Breyer warns that a Supreme Court opinion blocking government creditors from making robocalls to debtors is “divorced” and “untethered from the First Amendment.” Rather than protecting freedom of speech, the reasoning in the ruling could “obstruct the ordinary workings of democratic governance” by confusing government regulation with freedom of speech, making routine regulation in all areas difficult. Here comes full coverage of the case, including key points from each Justice.


In Barr v. American Association of Political Consultants, the Supreme Court ordered the government to stop making robocalls to debtors in a fractured 6-3 ruling — five Republican appointees and one Democrat against three Democrats. Brett Kavanaugh joined with John Roberts, Jr., Clarence Thomas, and Samuel Alito on the main opinion. Neil Gorsuch and Sonia Sotomayor had their own ideas and wrote separately. The other three, Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan, would have let the robocalls continue.

The main opinion by Brett Kavanaugh begins with a noncontroversial hook line, “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.” But the analysis that follows should be very controversial.

BACKGROUND. In 1991, a law was passed making it illegal for private political speakers and others to use robocalls to contact cell phones. In 2015, an exception was carved out of the law allowing creditors for government debt to make such robocalls. Private political speakers sue, saying: if the government can make robocalls, then private parties should be allowed to make calls too.

“STRICT SCRUTINY” is a legal test and a pillar of First Amendment freedom of speech analysis. When courts use strict scrutiny to test legislation, the law is typically found unconstitutional. Brett Kavanaugh applies strict scrutiny because the robocall law is a “content-based restriction” on speech that “favors” government speech over someone else’s speech. If the government cannot show a “compelling interest” for “unequal treatment” of the government versus the private party, then the Constitution is violated. Brett Kavanaugh finds no “compelling interest” to collect debt owed to government, so next he needs to decide how to cure the free speech violation.

RULING. Kavanaugh rules that government cannot be allowed to make robocalls to cell phones to reach its debtors because private political speakers cannot make robocalls to cell phones. Essentially, the government must shut up its debt collection speech because private speakers had to shut up their political speech. Here’s the TL;DR logic:

  • If private speakers cannot make robocalls for political purposes, then government speakers cannot make robocalls for debt collection purposes.
  • It is okay to restrict private political speakers from robocalls.
  • Therefore, it is not okay for government to make such calls.

Brett Kavanaugh explains:

A robocall that says, “Please pay your government debt” is legal. A robocall that says, “Please donate to our political campaign” is illegal. That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech. (7)
As a result, plaintiffs [the private political speakers] still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. (2)


Stephen Breyer, joined by Ruth Bader Ginsburg and Elena Kagan, says the tough test of “strict scrutiny” should not apply to “commercial” speech because making robocalls to debtors is “divorced” and “untethered from the First Amendment”:

To reflexively treat all content-based distinctions as subject to strict scrutiny regardless of context or practical effect is to engage in an analysis untethered from the First Amendment’s objectives. And in this case, strict scrutiny is inappropriate. Recall that the exception at issue here concerns debt collection [which] … has next to nothing to do with the free marketplace of ideas or the transmission of the people’s thoughts and will to the government…
Strict scrutiny and its strong presumption of unconstitutionality, however, have no place here.

Stephen Breyer would use a gentler test, “INTERMEDIATE SCRUTINY.” Intermediate scrutiny says a law is constitutional as long as there is (1) an “important governmental interest” in the regulation and (2) the law is “narrowly tailored” to achieve that result. The important governmental interest comes from an OMB report:

The Office of Management and Budget had reported to Congress that in “this time of fiscal constraint . . . the Federal Government should ensure that all debt owed to the United States is collected as quickly and efficiently as possible.” (Citation omitted)

And the law is narrowly tailored “solely” for debt collection purposes:

The statutory text makes clear that calls will only fall within the bounds of that exception if they are “made solely to collect” Government debt. (Citation omitted)

Breyer, Ginsburg, and Kagan would uphold the law permitting government to make the robocalls. The fourth Democratic appointee, Sonia Sotomayor, would not uphold the law. But all four agree that the easier test of intermediate scrutiny should be used, making the basic question of which test to use purely partisan, 5-4.


Stephen Breyer warns that strict scrutiny of speech content in all cases would essentially tear apart government regulations in all areas by conflating political speech with regulations themselves:

Consider, for example, the regulation of securities sales, drug labeling, food labeling, false advertising, workplace safety warnings, automobile airbag instructions, consumer electronic labels, tax forms, debt collection, and so on. All of those regulations necessarily involve content-based speech distinctions. What are the differences between regulatory programs themselves other than differences based on content? After all, the regulatory spheres in which the Securities and Exchange Commission or the Federal Trade Commission operate are defined by content. Put simply, treating all content-based distinctions on speech as presumptively unconstitutional is unworkable and would obstruct the ordinary workings of democratic governance.

Ask yourself: Where are the political messages in debt collection robocalls? Which part of ‘you owe us money’ implicates freedom of speech? Blocking a law that permits collection calls as a violation of free speech is absurd. This issue should be handled by representative democracy, not Court decree.

See also Mandatory Government Notices Banned for Violating Free Speech, one of many 5-4 purely partisan cases during the first term of Neil Gorsuch.


Neil Gorsuch, partially joined by Clarence Thomas, writes separately to mock the ruling by Brett Kavanaugh. Private political speakers sue to regain their right to speech — but instead of giving them back their speech, the Court takes away speech from “strangers to this suit”:

The plaintiffs [the private political speakers] point to the government-debt exception only to show that the government lacks a compelling interest in restricting their speech. It isn’t even clear the plaintiffs would have standing to challenge the government-debt exception. They came to court asserting a right to speak, not a right to be free from other speakers. Severing and voiding the government-debt exception does nothing to address the injury they claim …
Yet, somehow, in the name of vindicating the First Amendment, our remedial course today leads to the unlikely result that not a single person will be allowed to speak more freely and, instead, more speech will be banned.

Neil Gorsuch and Clarence Thomas would lift both robocall bans because a ban on private political speakers cannot be justified while allowing government to speak — the two provisions are not “severable.” Gorsuch would go further. He would strike down all robocall bans as violations of freedom of speech.


While exposing Brett Kavanaugh’s ruling, Neil Gorsuch violates his usual ideology of ignoring legislative intent. Instead, he just makes up legislative intent himself:

Before the law’s enactment, many cell phone users had to pay for each call, so they suffered not only the pleasure of robocalls, but also the privilege of paying for them. In 1991, Congress sought to address the problem by banning nearly all unsolicited robocalls to cell phones.

But much has changed since then. Now, cell phone users often pay a flat monthly fee for unlimited minutes, reducing the cost (if not the annoyance) of hearing from robocallers. New weapons in the fight against robocallers have emerged, too–including tools that allow consumers to more easily screen and block unwanted calls. Perhaps in recognition of these changes, Congress relaxed the ban on cell-phone robocallers in 2015.

“Perhaps” Neil Gorsuch should be more open to legislative intent since he is willing to just make it up when he feels like.


In this robocall case, four of the five Republican appointees find that the ban on private political speakers may remain intact because it was “severable” from the provision allowing government calls for debt collection.

SEVERABILITY is the key issue in a pending Supreme Court case on “Obamacare.” Opponents of the law say that when Congress eliminated the mandate by setting it to zero dollars, the rest of the law became unconstitutional. Therefore, everything must go — expanded coverage, preexisting conditions coverage and improved benefits, the Medicaid expansion, regulation of insurance companies, taxing provisions, etc. The trial court actually ruled Obamacare unconstitutional but the case is now in the hands of the Supreme Court.

The Supreme Court will not strike down Obamacare because:

  • As per this robocall case, three Republican appointees support strong “severability” rules, at least for now.
  • The Court has already upheld the bulk of the law repeatedly and such a total flip-flop could not be reasonably justified, especially based upon a single change made by Congress itself.
  • The practical effect of suddenly ending Obamacare — serious and immediate harm to most Americans — would produce outrage like we have never seen which could empower the movement to expand the number of Justices on the Supreme Court.
  • Fact is, Obamacare is basically the Republican alternative to public health care going all the way back to Richard Nixon. Ending the program would assure much more public support for single payer or Medicare for All.