NOTICE: This opinion is subject toformal resvision before publication in the preliminary print of theUnited States Reports. Readers are requested to notify the Reporterof Decisions, Supreme Court of the United States, Washington,D. C. 20543, of any typographical or other formal errors, inorder that corrections may be made before the preliminary printgoes to press.

SUPREME COURT OF THE UNITED STATES

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No. 19–631

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WILLIAM P. BARR, ATTORNEY GENERAL, et al.,PETITIONERSv. AMERICAN ASSOCIATION OF POLITICALCONSULTANTS, INC., et al.

on writ of certiorari to the united statescourt of appeals for the fourth circuit

[July 6, 2020]

Justice Kavanaugh announced the judgment ofthe Court and delivered an opinion, in which The Chief Justice andJustice Alito join, and in which Justice Thomas joins as to Parts Iand II.

Americans passionately disagree about manythings. But they are largely united in their disdain for robocalls.The Federal Government receives a staggering number of complaintsabout robocalls—3.7 million complaints in 2019 alone. The Stateslikewise field a constant barrage of complaints.

For nearly 30 years, the people’srepresentatives in Congress have been fighting back. As relevanthere, the Telephone Consumer Protection Act of 1991, known as theTCPA, generally prohibits robocalls to cell phones and home phones.But a 2015 amendment to the TCPA allows robocalls that are made tocollect debts owed to or guaranteed by the Federal Government,including robocalls made to collect many student loan and mortgagedebts.

This case concerns robocalls to cell phones.Plaintiffs in this case are political and nonprofit organizationsthat want to make political robocalls to cell phones. Invoking theFirst Amendment, they argue that the 2015 government-debt exceptionunconstitutionally favors debt-collection speech over political andother speech. As relief from that unconstitutional law, they urgeus to invalidate the entire 1991 robocall restriction, rather thansimply invalidating the 2015 government-debt exception.

Six Members of the Court today conclude thatCongress has impermissibly favored debt-collection speech overpolitical and other speech, in violation of the First Amendment.Seeinfra, at 6–9;post, at 1–2 (Sotomayor, J.,concurring in judgment);post, at 1, 3 (Gorsuch, J.,concurring in judgment in part and dissenting in part). Applyingtraditional severability principles, seven Members of the Courtconclude that the entire 1991 robocall restriction should not beinvalidated, but rather that the 2015 government-debt exceptionmust be invalidated and severed from the remainder of the statute.Seeinfra, at 10–25;post, at 2 (Sotomayor, J.,concurring in judgment);post, at 11–12 (Breyer, J.,concurring in judgment with respect to severability and dissentingin part). As a result, plaintiffs still may not make politicalrobocalls to cell phones, but their speech is now treated equallywith debt-collection speech. The judgment of the U. S. Courtof Appeals for the Fourth Circuit is affirmed.

I

A

In 1991, Congress passed and President George H.W. Bush signed the Telephone Consumer Protection Act. The Actresponded to a torrent of vociferous consumer complaints aboutintrusive robocalls. A growing number of telemarketers were usingequipment that could automatically dial a telephone number anddeliver an artificial or prerecorded voice message. At the time,more than 300,000 solicitors called more than 18 million Americansevery day. TCPA, §2, ¶¶3, 6, 105Stat. 2394, note following 47U. S. C. §227. Consumers were “outraged” and consideredrobocalls an invasion of privacy “regardless of the content or theinitiator of the message.” ¶¶6, 10.

A leading Senate sponsor of the TCPA capturedthe zeitgeist in 1991, describing robocalls as “the scourge ofmodern civilization. They wake us up in the morning; they interruptour dinner at night; they force the sick and elderly out of bed;they hound us until we want to rip the telephone right out of thewall.” 137 Cong. Rec. 30821 (1991).

In enacting the TCPA, Congress found thatbanning robocalls was “the only effective means of protectingtelephone consumers from this nuisance and privacy invasion.” TCPA§2, ¶12. To that end, the TCPA imposed various restrictions on theuse of automated telephone equipment. §3(a), 105Stat. 2395. Asrelevant here, one restriction prohibited “any call (other than acall made for emergency purposes or made with the prior expressconsent of the called party) using any automatic telephone dialingsystem or an artificial or prerecorded voice” to “any telephonenumber assigned to a paging service,cellular telephoneservice, specialized mobile radio service, or other radiocommon carrier service, or any service for which the called partyis charged for the call.”Id., at 2395–2396 (emphasisadded). That provision is codified in §227(b)(1)(A)(iii) of Title47 of the U. S. Code.

In plain English, the TCPA prohibited almost allrobocalls to cell phones.[1]

Twenty-four years later, in 2015, Congresspassed and President Obama signed the Bipartisan Budget Act. Inaddition to making other unrelated changes to the U. S. Code,that Act amended the TCPA’s restriction on robocalls to cellphones. It stated:

“(a) In General.—Section 227(b) of theCommunications Act of 1934 (47 U. S. C. 227(b)) isamended—

(1) in paragraph (1)—

(A) in subparagraph (A)(iii), by inserting‘, unless such call is made solely to collect a debt owed to orguaranteed by the United States’ after ‘charged for thecall.’ ” 129Stat. 588.[2]

In other words, Congress carved out a newgovernment-debt exception to the general robocall restriction.

The TCPA imposes tough penalties for violatingthe robocall restriction. Private parties can sue to recover up to$1,500 per violation or three times their actual monetary losses,which can add up quickly in a class action. §227(b)(3). States maybring civil actions against robocallers on behalf of theircitizens. §227(g)(1). And the Federal Communications Commission canseek forfeiture penalties for willful or repeated violations of thestatute. §503(b).

B

Plaintiffs in this case are the AmericanAssociation of Political Consultants and three other organizationsthat participate in the political system. Plaintiffs and theirmembers make calls to citizens to discuss candidates and issues,solicit donations, conduct polls, and get out the vote. Plaintiffsbelieve that their political outreach would be more effective andefficient if they could make robocalls to cell phones.[3] But because plaintiffs are not inthe business of collecting government debt, §227(b)(1)(A)(iii)prohibits them from making those robocalls.

Plaintiffs filed a declaratory judgment actionagainst the U. S. Attorney General and the FCC, claiming that§227(b)(1)(A)(iii) violated the First Amendment. The U. S.District Court for the Eastern District of North Carolinadetermined that the robocall restriction with the government-debtexception was a content-based speech regulation, thereby triggeringstrict scrutiny. But the court concluded that the law survivedstrict scrutiny, even with the content-based exception, because ofthe Government’s compelling interest in collecting debt.

The U. S. Court of Appeals for the FourthCircuit vacated the judgment.American Assn. of PoliticalConsultants, Inc. v.FCC, 923 F.3d 159 (2019). The Courtof Appeals agreed with the District Court that the robocallrestriction with the government-debt exception was a content-basedspeech restriction. But the court held that the law could notwithstand strict scrutiny and was therefore unconstitutional. TheCourt of Appeals then applied traditional severability principlesand concluded that the government-debt exception was severable fromthe underlying robocall restriction. The Court of Appeals thereforeinvalidated the government-debt exception and severed it from therobocall restriction.

The Government petitioned for a writ ofcertiorari because the Court of Appeals invalidated part of afederal statute—namely, the government-debt exception. Plaintiffssupported the petition, arguing from the other direction that theCourt of Appeals did not go far enough in providing relief andshould have invalidated the entire 1991 robocall restriction ratherthan simply invalidating the 2015 government-debt exception. Wegranted certiorari. 589 U. S. ___ (2020).

II

Ratified in 1791, the First Amendment providesthat Congress shall make no law “abridging the freedom of speech.”Above “all else, the First Amendment means that government”generally “has no power to restrict expression because of itsmessage, its ideas, its subject matter, or its content.”PoliceDept. of Chicago v.Mosley,408 U.S.92, 95 (1972).

The Court’s precedents allow the government to“constitutionally impose reasonable time, place, and mannerregulations” on speech, but the precedents restrict the governmentfrom discriminating “in the regulation of expression on the basisof the content of that expression.”Hudgens v.NLRB,424 U.S.507, 520 (1976). Content-based laws are subject to strictscrutiny. SeeReed v.Town of Gilbert, 576 U.S. 155,163–164 (2015). By contrast, content-neutral laws are subject to alower level of scrutiny.Id., at 166.

Section 227(b)(1)(A)(iii) generally barsrobocalls to cell phones. Since the 2015 amendment, the law hasexempted robocalls to collect government debt. The initial FirstAmendment question is whether the robocall restriction, with thegovernment-debt exception, is content-based. The answer is yes.

As relevant here, a law is content-based if “aregulation of speech ‘on its face’ draws distinctions based on themessage a speaker conveys.”Reed, 576 U. S., at 163.That description applies to a law that “singles out specificsubject matter for differential treatment.”Id., at 169. Forexample, “a law banning the use of sound trucks for politicalspeech—and only political speech—would be a content-basedregulation, even if it imposed no limits on the politicalviewpoints that could be expressed.”Ibid.; see,e.g.,Simon & Schuster, Inc. v.Members of N.Y. State Crime Victims Bd.,502 U.S.105, 116 (1991);Arkansas Writers’ Project, Inc. v.Ragland,481 U.S.221, 229–230 (1987);Widmar v.Vincent,454 U.S.263, 265, 276–277 (1981);Carey v.Brown,447 U.S.455, 459–463 (1980);Erznoznik v.Jacksonville,422 U.S.205, 211–212 (1975);Mosley, 408 U. S., at95–96.

Under §227(b)(1)(A)(iii), the legality of arobocall turns on whether it is “made solely to collect a debt owedto or guaranteed by the United States.” 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 aboutas content-based as it gets. Because the law favors speech made forcollecting government debt over political and other speech, the lawis a content-based restriction on speech.

The Government advances three main arguments fordeeming the statute content-neutral, but none is persuasive.

First, the Government suggests that§227(b)(1)(A)(iii) draws distinctions based on speakers (authorizeddebt collectors), not based on content. But that is not the law infront of us. This statute singles out calls “made solely to collecta debt owed to or guaranteed by the United States,” not all callsfrom authorized debt collectors.

In any event, “the fact that a distinction isspeaker based” does not “automatically render the distinctioncontent neutral.”Reed, 576 U. S., at 170;Sorrell v.IMS Health Inc.,564U.S. 552, 563–564 (2011). Indeed, the Court has held that“ ‘ laws favoring some speakers over others demand strictscrutiny when the legislature’s speaker preference reflects acontent preference.’ ”Reed, 576 U. S., at 170(quotingTurner Broadcasting System, Inc. v.FCC,512 U.S.622, 658 (1994)).

Second, the Government argues that thelegality of a robocall under the statute depends simply on whetherthe caller is engaged in a particular economic activity, not on thecontent of speech. We disagree. The law here focuses on whether thecaller isspeaking about a particular topic. InSorrell, this Court held that a law singling outpharmaceutical marketing for unfavorable treatment wascontent-based. 564 U. S., at 563–564. So too here.

Third, according to the Government, ifthis statute is content-based because it singles outdebt-collection speech, then so are statutes thatregulatedebt collection, like the Fair Debt Collection Practices Act. See15 U. S. C. §1692et seq.[4] That slippery-slope argument is unpersuasive in thiscase. As we explained inSorrell, “the First Amendment doesnot prevent restrictions directed at commerce or conduct fromimposing incidental burdens on speech.” 564 U. S., at 567. Thelaw here, like the Vermont law inSorrell, “does not simplyhave an effect on speech, but is directed at certain content and isaimed at particular speakers.”Ibid. The Government’sconcern is understandable, but the courts have generally been ableto distinguish impermissible content-based speech restrictions fromtraditional or ordinary economic regulation of commercial activitythat imposes incidental burdens on speech. The issue before usconcerns only robocalls to cell phones. Our decision today on thatissue fits comfortably within existing First Amendment precedent.Our decision is not intended to expand existing First Amendmentdoctrine or to otherwise affect traditional or ordinary economicregulation of commercial activity.

In short, the robocall restriction with thegovernment-debt exception is content-based. Under the Court’sprecedents, a “law that is content based” is “subject to strictscrutiny.”Reed, 576 U. S., at 165. The Governmentconcedes that it cannot satisfy strict scrutiny to justify thegovernment-debt exception. We agree. The Government’s statedjustification for the government-debt exception is collectinggovernment debt. Although collecting government debt is no doubt aworthy goal, the Government concedes that it has not sufficientlyjustified the differentiation between government-debt collectionspeech and other important categories of robocall speech, such aspolitical speech, charitable fundraising, issue advocacy,commercial advertising, and the like.[5]

III

Having concluded that the 2015 government-debtexception created an unconstitutional exception to the 1991robocall restriction, we must decide whether to invalidate theentire 1991 robocall restriction, or instead to invalidate andsever the 2015 government-debt exception. Before we apply ordinaryseverability principles, we must address plaintiffs’ broaderinitial argument for why the entire 1991 robocall restriction isunconstitutional.

A

Plaintiffs correctly point out that theGovernment’s asserted interest for the 1991 robocall restriction isconsumer privacy. But according to plaintiffs, Congress’swillingness to enact the government-debt exception in 2015 betraysa newfound lack of genuine congressional concern for consumerprivacy. As plaintiffs phrase it, the 2015 exception “underminesthe credibility” of the Government’s interest in consumer privacy.Tr. of Oral Arg. 38. Plaintiffs further contend that if Congress nolonger has a genuine interest in consumer privacy, then theunderlying 1991 robocall restriction is no longer justified(presumably under any level of heightened scrutiny) and istherefore now unconstitutional.

Plaintiffs’ argument is not without force, butwe ultimately disagree with it. It is true that the Court hasrecognized that exceptions to a speech restriction “may diminishthe credibility of the government’s rationale for restrictingspeech in the first place.”City of Ladue v.Gilleo,512 U.S.43, 52 (1994). But here, Congress’s addition of thegovernment-debt exception in 2015 does not cause us to doubt thecredibility of Congress’s continuing interest in protectingconsumer privacy.

After all, the government-debt exception is onlya slice of the overall robocall landscape. This is not a case wherea restriction on speech is littered with exceptions thatsubstantially negate the restriction. On the contrary, even after2015, Congress has retained a very broad restriction on robocalls.The pre-1991 statistics on robocalls show that a variety oforganizations collectively made a huge number of robocalls. Andthere is no reason to think that the incentives for thoseorganizations—and many others—to make robocalls has diminished inany way since 1991. The continuing robocall restriction proscribestens of millions of would-be robocalls that would otherwiseoccurevery day. Congress’s continuing broad prohibition ofrobocalls amply demonstrates Congress’s continuing interest inconsumer privacy.

The simple reality, as we assess the legislativedevelopments, is that Congress has competing interests. Congress’sgrowing interest (as reflected in the 2015 amendment) in collectinggovernment debt does not mean that Congress suddenly lacks agenuine interest in restricting robocalls. Plaintiffs seem to arguethat Congress must be interested either in debt collection or inconsumer privacy. But that is a false dichotomy, as we see it. Asis not infrequently the case with either/or questions, the answerto this either/or question is “both.” Congress is interested bothin collecting government debt and in protecting consumerprivacy.

Therefore, we disagree with plaintiffs’ broaderinitial argument for holding the entire 1991 robocall restrictionunconstitutional.

B

Plaintiffs next focus on ordinary severabilityprinciples. Applying those principles, the question before theCourt is whether (i) to invalidate the entire 1991 robocallrestriction, as plaintiffs want, or (ii) to invalidate just the2015 government-debt exception and sever it from the remainder ofthe statute, as the Government wants.

We agree with the Government that we mustinvalidate the 2015 government-debt exception and sever thatexception from the remainder of the statute. To explain why, webegin with general severability principles and then apply thoseprinciples to this case.

1

When enacting a law, Congress sometimesexpressly addresses severability. For example, Congress may includeaseverability clause in the law, making clear that theunconstitutionality of one provision does not affect the rest ofthe law. See,e.g., 12 U. S. C. §5302; 15U. S. C. §78gg; 47 U. S. C. §608.Alternatively, Congress may include anonseverabilityclause, making clear that the unconstitutionality of one provisionmeans the invalidity of some or all of the remainder of the law, tothe extent specified in the text of the nonseverability clause.See,e.g., 4 U. S. C. §125; note following 42U. S. C. §300aa–1; 94Stat. 1797.

When Congress includes an express severabilityor nonseverability clause in the relevant statute, the judicialinquiry is straightforward. At least absent extraordinarycircumstances, the Court should adhere to the text of theseverability or nonseverability clause. That is because aseverability or nonseverability clause leaves no doubt about whatthe enacting Congress wanted if one provision of the law were laterdeclared unconstitutional. A severability clause indicates “thatCongress did not intend the validity of the statute in question todepend on the validity of the constitutionally offensiveprovision.”Alaska Airlines, Inc. v.Brock,480 U.S.678, 686 (1987). And a nonseverability clause does theopposite.

On occasion, a party will nonetheless ask theCourt to override the text of a severability or nonseverabilityclause on the ground that the text does not reflect Congress’s“actual intent” as to severability. That kind of argument may havecarried some force back when courts paid less attention tostatutory text as the definitive expression of Congress’s will. Butcourts today zero in on the precise statutory text and, as aresult, courts hew closely to the text of severability ornonseverability clauses. SeeSeila Law LLC v.ConsumerFinancial Protection Bureau,ante, at 33 (pluralityopinion); cf.Milner v.Department of Navy,562 U.S.562, 569–573 (2011).[6]

Of course, when enacting a law, Congress oftendoes not include either a severability clause or a nonseverabilityclause.

In those cases, it is sometimes said that courtsapplying severability doctrine should search for other indicia ofcongressional intent. For example, some of the Court’s casesdeclare that courts should sever the offending provision unless“the statute created in its absence is legislation that Congresswould not have enacted.”Alaska Airlines, 480 U. S., at685. But experience shows that this formulation often leads to ananalytical dead end. That is because courts are not well equippedto imaginatively reconstruct a prior Congress’s hypotheticalintent. In other words, absent a severability or nonseverabilityclause, a court often cannot really know what the two Houses ofCongress and the President from the time of original enactment of alaw would have wanted if one provision of a law were later declaredunconstitutional.

The Court’s cases have instead developed astrong presumption of severability. The Court presumes that anunconstitutional provision in a law is severable from the remainderof the law or statute. For example, inFree Enterprise Fundv.Public Company Accounting Oversight Bd., the Court setforth the “normal rule”: “Generally speaking, when confronting aconstitutional flaw in a statute, we try to limit the solution tothe problem, severing any problematic portions while leaving theremainder intact.”561 U.S.477, 508 (2010) (internal quotation marks omitted); see alsoSeila Law,ante, at 32 (same). InRegan v.Time, Inc., the plurality opinion likewise described a“presumption” in “favor of severability” and stated that the Courtshould “refrain from invalidating more of the statute than isnecessary.”468 U.S.641, 652–653 (1984).

The Court’s power and preference to partiallyinvalidate a statute in that fashion has been firmly establishedsinceMarbury v.Madison. There, the Courtinvalidated part of §13 of the Judiciary Act of 1789. 1 Cranch 137,179–180 (1803). The Judiciary Act did not contain a severabilityclause. But the Court did not proceed to invalidate the entireJudiciary Act. As Chief Justice Marshall later explained, if anypart of an Act is “unconstitutional, the provisions of that partmay be disregarded while full effect will be given to such as arenot repugnant to the constitution of the United States.”Bank ofHamilton v.Lessee of Dudley, 2 Pet. 492, 526 (1829);see alsoDorchy v.Kansas,264U.S. 286, 289–290 (1924) (“A statute bad in part is notnecessarily void in its entirety. Provisions within the legislativepower may stand if separable from the bad”);Loeb v.Columbia Township Trustees,179 U.S.472, 490 (1900) (“one section of a statute may be repugnant tothe Constitution without rendering the whole act void”).

FromMarbury v.Madison to thepresent, apart from some isolated detours mostly in the late 1800sand early 1900s, the Court’s remedial preference after finding aprovision of a federal law unconstitutional has been to salvagerather than destroy the rest of the law passed by Congress andsigned by the President. The Court’s precedents reflect a decisivepreference for surgical severance rather than wholesaledestruction, even in the absence of a severability clause.

The Court’s presumption of severability suppliesa workable solution—one that allows courts to avoid judicialpolicymaking orde facto judicial legislation indetermining just how much of the remainder of a statute should beinvalidated.[7] The presumptionalso reflects the confined role of the Judiciary in our system ofseparated powers—stated otherwise, the presumption manifests theJudiciary’s respect for Congress’s legislative role by keepingcourts from unnecessarily disturbing a law apart from invalidatingthe provision that is unconstitutional. Furthermore, thepresumption recognizes that plaintiffs who successfully challengeone provision of a law may lack standing to challengeotherprovisions of that law. SeeMurphy v.National CollegiateAthletic Assn., 584 U. S. ___, ___–___ (2018) (Thomas, J.,concurring) (slip op., at 5–6).

Those and other considerations, taken together,have steered the Court to a presumption of severability. Applyingthe presumption, the Court invalidates and severs unconstitutionalprovisions from the remainder of the law rather than razing wholestatutes or Acts of Congress. Put in common parlance, the tail (oneunconstitutional provision) does not wag the dog (the rest of thecodified statute or the Act as passed by Congress). Constitutionallitigation is not a game of gotcha against Congress, wherelitigants can ride a discrete constitutional flaw in a statute totake down the whole, otherwise constitutional statute. If the rulewere otherwise, the entire Judiciary Act of 1789 would be invalidas a consequence ofMarbury v.Madison.[8]

Before severing a provision and leaving theremainder of a law intact, the Court must determine that theremainder of the statute is “capable of functioning independently”and thus would be “fully operative” as a law.Seila Law,ante, at 33; seeMurphy, 584 U. S., at ___–___(slip op., at 25–30). But it is fairly unusual for the remainder ofa law not to be operative.[9]

2

We next apply those general severabilityprinciples to this case.

Recall how this statute came together. Passed byCongress and signed by President Franklin Roosevelt in 1934, theCommunications Act is codified in Title 47 of the U. S. Code.The TCPA of 1991 amended the Communications Act by adding therobocall restriction, which is codified at §227(b)(1)(A)(iii) ofTitle 47. The Bipartisan Budget Act of 2015 then amended theCommunications Act by adding the government-debt exception, whichis codified along with the robocall restriction at§227(b)(1)(A)(iii) of Title 47.

Since 1934, the Communications Act has containedan express severability clause: “If any provision ofthischapter or the application thereof to any person orcircumstance is held invalid, the remainder of the chapter and theapplication of such provision to other persons or circumstancesshall not be affected thereby.” 47 U. S. C. §608(emphasis added). The “chapter” referred to in the severabilityclause is Chapter 5 of Title 47. And Chapter 5 in turn encompasses§151 to §700 of Title 47, and therefore covers §227 of Title 47,the provision with the robocall restriction and the government-debtexception.[10]

Enacted in 2015, the government-debt exceptionadded an unconstitutional discriminatory exception to the robocallrestriction. The text of the severability clause squarely coversthe unconstitutional government-debt exception and requires that wesever it.

To get around the text of the severabilityclause, plaintiffs point out that the Communications Act’sseverability clause was enacted in 1934, long before the TCPA’s1991 robocall restriction and the 2015 government-debt exception.But a severability clause must be interpreted according to itsterms, regardless of when Congress enacted it. See n. 6,supra.

Even if the severability clause did not apply tothe government-debt provision at issue in this case (or even ifthere were no severability clause in the Communications Act), wewould apply the presumption of severability as described andapplied in cases such asFree Enterprise Fund. And underthat presumption, we likewise would sever the 2015 government-debtexception, the constitutionally offending provision.

With the government-debt exception severed, theremainder of the law is capable of functioning independently andthus would be fully operative as a law. Indeed, the remainder ofthe robocall restriction did function independently and fullyoperate as a law for 20-plus years before the government-debtexception was added in 2015.

The Court’s precedents further support severingthe 2015 government-debt exception. The Court has long appliedseverability principles in cases like this one, where Congressadded an unconstitutional amendment to a prior law. In those cases,the Court has treated the original, pre-amendment statute as the“valid expression of the legislative intent.”Frost v.Corporation Comm’n of Okla.,278 U.S.515, 526–527 (1929). The Court has severed the “exceptionintroduced by amendment,” so that “the original law stands withoutthe amendatory exception.”Truax v.Corrigan,257 U.S.312, 342 (1921).

For example, inEberle v.Michigan, the Court held that “discriminatory wine-and-cideramendments” added in 1899 and 1903 were severable from theunderlying 1889 state law generally prohibiting the manufacture ofalcohol.232 U.S.700, 704–705 (1914). InTruax, the Court ruled that a1913 amendment prohibiting Arizona courts from issuing injunctionsin labor disputes was invalid and severable from the underlying1901 law authorizing Arizona courts to issue injunctions generally.257 U. S., at 341–342. InFrost, the Court concludedthat a 1925 amendment exempting certain corporations from making ashowing of “public necessity” in order to obtain a cotton ginlicense was invalid and severable from the 1915 law that requiredthat showing. 278 U. S., at 525–528. EchoingMarbury,the Court inFrost explained that an unconstitutionalstatutory amendment “is a nullity” and “void” when enacted, and forthat reason has no effect on the original statute. 278 U. S.,at 526–527 (internal quotation marks omitted).[11]

Similarly, in 1932, Congress enacted the FederalKidnaping Act, and then in 1934, added a death penalty provision tothe Act. The death penalty provision was later declaredunconstitutional by this Court. In considering severability, theCourt stated that the “law as originally enacted in 1932 containedno capital punishment provision.”United States v.Jackson,390 U.S.570, 586 (1968). And when Congress amended the Act in 1934 toadd the death penalty, “the statute was left substantiallyunchanged in every other respect.”Id., at 587–588. TheCourt found it “difficult to imagine a more compelling case forseverability.”Id., at 589. So too here.

In sum, the text of the Communications Act’sseverability clause requires that the Court sever the 2015government-debt exception from the remainder of the statute. Andeven if the text of the severability clause did not apply here, thepresumption of severability would require that the Court sever the2015 government-debt exception from the remainder of thestatute.

3

One final severability wrinkle remains. This isan equal-treatment case, and equal-treatment cases can sometimespose complicated severability questions.

The “ First Amendment is a kind of EqualProtection Clause for ideas.”Williams-Yulee v.FloridaBar, 575 U.S. 433, 470 (2015) (Scalia, J., dissenting). AndCongress violated that First Amendment equal-treatment principle inthis case by favoring debt-collection robocalls and discriminatingagainst political and other robocalls.

When the constitutional violation is unequaltreatment, as it is here, a court theoretically can cure thatunequal treatment either by extending the benefits or burdens tothe exempted class, or by nullifying the benefits or burdens forall. See,e.g.,Heckler v.Mathews,465 U.S.728, 740 (1984). Here, for example, the Government would preferto cure the unequal treatment by extending the robocall restrictionand thereby proscribing nearly all robocalls to cell phones. Bycontrast, plaintiffs want to cure the unequal treatment bynullifying the robocall restriction and thereby allowing allrobocalls to cell phones.

When, as here, the Court confronts anequal-treatment constitutional violation, the Court generallyapplies the same commonsense severability principles describedabove. If the statute contains a severability clause, the Courttypically severs the discriminatory exception or classification,and thereby extends the relevant statutory benefits or burdens tothose previously exempted, rather than nullifying the benefits orburdens for all. In light of the presumption of severability, theCourt generally does the same even in the absence of a severabilityclause. The Court’s precedents reflect that preference forextension rather than nullification. See,e.g.,Sessions v.Morales-Santana, 582 U. S. ___, ___(2017) (slip op., at 25);Califano v.Westcott,443 U.S.76, 89–91 (1979);Califano v.Goldfarb,430 U.S.199, 202–204, 213–217 (1977) (plurality opinion);Jimenez v.Weinberger,417 U.S.628, 637–638 (1974);Department of Agriculture v.Moreno,413 U.S.528, 529, 537–538 (1973);Frontiero v.Richardson,411 U.S.677, 678–679, 690–691 (1973) (plurality opinion);Welshv.United States,398 U.S.333, 361–367 (1970) (Harlan, J., concurring in result).

To be sure, some equal-treatment cases can raisecomplex questions about whether it is appropriate to extendbenefits or burdens, rather than nullifying the benefits orburdens. See,e.g.,Morales-Santana, 582 U. S.___. For example, there can be due process, fair notice, or otherindependent constitutional barriers to extension of benefits orburdens. Cf.Miller v.Albright,523 U.S.420, 458–459 (1998) (Scalia, J., concurring in judgment); seegenerally Ginsburg, Some Thoughts on Judicial Authority to RepairUnconstitutional Legislation, 28 Clev. St. L. Rev. 301 (1979).There also can be knotty questions about what is the exception andwhat is the rule. But here, we need not tackle all of the possiblehypothetical applications of severability doctrine inequal-treatment cases. The government-debt exception is arelatively narrow exception to the broad robocall restriction, andsevering the government-debt exception does not raise any otherconstitutional problems.

Plaintiffs insist, however, that aFirstAmendment equal-treatment case is different. According toplaintiffs, a court should not cure “a First Amendment violation byoutlawing more speech.” Brief for Respondents 34. The implicitpremise of that argument is that extending the robocall restrictionto debt-collection robocalls would be unconstitutional. But that iswrong. A generally applicable robocall restriction would bepermissible under the First Amendment. Extending the robocallrestriction to those robocalls raises no First Amendment problem.So the First Amendment does not tell us which way to cure theunequal treatment in this case. Therefore, we apply traditionalseverability principles. And as we have explained, severing the2015 government-debt exception cures the unequal treatment andconstitutes the proper result under the Court’s traditionalseverability principles. In short, the correct result in this caseis to sever the 2015 government-debt exception and leave in placethe longstanding robocall restriction.[12]

4

Justice Gorsuch’s well-stated separate opinionmakes a number of important points that warrant this respectfulresponse.

Justice Gorsuch suggests that our decisionprovides “no relief” to plaintiffs.Post, at 6. We disagree.Plaintiffs want to be able to make political robocalls to cellphones, and they have not receivedthat relief. But theFirst Amendment complaint at the heart of their suit was unequaltreatment. Invalidating and severing the government-debt exceptionfully addresses that First Amendment injury.[13] Justice Gorsuch further suggests thatplaintiffs may lack standing to challenge the government-debtexception, because that exception merely favors others. Seeibid. But the Court has squarely held that a plaintiff whosuffers unequal treatment has standing to challenge adiscriminatory exception that favors others. SeeHeckler v.Mathews, 465 U. S., at 737–740 (a plaintiff who suffersunequal treatment has standing to seek “withdrawal of benefits fromthe favored class”); see alsoNortheastern Fla. Chapter,Associated Gen. Contractors of America v.Jacksonville,508 U.S.656, 666 (1993) (“The ‘injury in fact’ in an equal protectioncase of this variety is the denial of equal treatment resultingfrom the imposition of the barrier, not the ultimate inability toobtain the benefit”).

Justice Gorsuch also objects that our decisiontoday “harms strangers to this suit” by eliminating favorabletreatment for debt collectors.Post, at 6. But that isnecessarily true in many cases where a court cures unequaltreatment by, for example, extending a burden or nullifying abenefit. See,e.g.,Morales-Santana, 582 U.S., at ___ (slip op., at 28) (curing unequal treatment of childrenborn to unwed U. S.-citizen fathers by extending a burden tochildren of unwed U. S.-citizen mothers);Orr v.Orr,374 So. 2d 895, 896–897 (Ala. Civ. App. 1979) (extendingalimony obligations to women after a male plaintiff successfullychallenged Alabama’s discriminatory alimony statute in thisCourt).

Moreover, Justice Gorsuch’s approach to thiscase would not solve the problem of harming strangers to this suit;it would just create a different and much bigger problem. Hisproposed remedy of injunctive relief, plusstare decisis,would in effect allow all robocalls to cell phones—notwithstandingCongress’s decisive choice to prohibit most robocalls to cellphones. That is not a judicially modest approach but is more of awolf in sheep’s clothing. That approach would disrespect thedemocratic process, through which the people’s representatives havemade crystal clear that robocalls must be restricted. JusticeGorsuch’s remedy would end up harming a different and far largerset of strangers to this suit—the tens of millions of consumers whowould be bombarded every day with nonstop robocalls notwithstandingCongress’s clear prohibition of those robocalls.

Justice Gorsuch suggests more broadly thatseverability doctrine may need to be reconsidered. But when andhow? As the saying goes, John Marshall is not walking through thatdoor. And this Court, in this and other recent decisions, hasclarified and refined severability doctrine by emphasizing firmadherence to the text of severability clauses, and underscoring thestrong presumption of severability. The doctrine as so refined isconstitutionally well-rooted, see,e.g.,Marbury v.Madison, 1 Cranch 137 (Marshall, C. J.), and can bepredictably applied. True, there is no magic solution toseverability that solves every conundrum, especially inequal-treatment cases, but the Court’s current approach asreflected in recent cases such asFree Enterprise Fund andSeila Law is constitutional, stable, predictable, andcommonsensical.

*  *  *

In 1991, Congress enacted a generalrestriction on robocalls to cell phones. In 2015, Congress carvedout an exception that allowed robocalls made to collect governmentdebt. In doing so, Congress favored debt-collection speech overplaintiffs’ political speech. We hold that the 2015 government-debtexception added an unconstitutional exception to the law. We curethat constitutional violation by invalidating the 2015government-debt exception and severing it from the remainder of thestatute. The judgment of the U. S. Court of Appeals for theFourth Circuit is affirmed.

It is so ordered.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–631

_________________

WILLIAM P. BARR, ATTORNEY GENERAL, et al.,PETITIONERSv. AMERICAN ASSOCIATION OF POLITICALCONSULTANTS, INC., et al.

on writ of certiorari to the united statescourt of appeals for the fourth circuit

[July 6, 2020]

Justice Sotomayor, concurring in thejudgment.

I agree with much of the partial dissent’sexplanation that strict scrutiny should not apply to allcontent-based distinctions. Cf.post, at 5–9 (Breyer, J.,concurring in judgment with respect to severability and dissentingin part). In my view, however, the government-debt exception in 47U. S. C. §227(b) still fails intermediate scrutinybecause it is not “narrowly tailored to serve a significantgovernmental interest.”Ward v.Rock Against Racism,491 U.S.781, 791 (1989) (internal quotation marks omitted). Even underintermediate scrutiny, the Government has not explained how adebt-collection robocall about a government-backed debt is any lessintrusive or could be any less harassing than a debt-collectionrobocall about a privately backed debt. As the Fourth Circuitnoted, the government-debt exception is seriously underinclusivebecause it permits “many of the intrusive calls that the automatedcall ban was enacted to prohibit.”American Assn. of PoliticalConsultants, Inc. v.FCC, 923 F.3d 159, 168 (2019) (casebelow). The Government could have employed far less restrictivemeans to further its interest in collecting debt, such as“secur[ing] consent from the debtors to make debt-collection calls”or “plac[ing] the calls itself.”Id., at 169, n. 10;see also §227(b)(1)(A). Nor has the Government “sufficientlyjustified the differentiation between government-debt collectionspeech and other important categories of robocall speech, such aspolitical speech, charitable fundraising, issue advocacy,commercial advertising, and the like.”Ante, at 9.

Nevertheless, I agree that the offendingprovision is severable. Seeante, at 2;post, at11–12 (opinion of Breyer, J.); see alsoCity of Ladue v.Gilleo,512 U.S.43, 51–53 (1994) (explaining that an appropriate “solution” toa law that covers “too little speech because its exemptionsdiscriminate on the basis of [the speaker’s] messages” could be to“remove” the discrimination).

With those understandings, I concur in thejudgment.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–631

_________________

WILLIAM P. BARR, ATTORNEY GENERAL, et al.,PETITIONERSv. AMERICAN ASSOCIATION OF POLITICALCONSULTANTS, INC., et al.

on writ of certiorari to the united statescourt of appeals for the fourth circuit

[July 6, 2020]

Justice Breyer, with whom Justice Ginsburg andJustice Kagan join, concurring in the judgment with respect toseverability and dissenting in part.

A federal statute forbids, with some exceptions,making automatically dialed or prerecorded telephone calls (calledrobocalls) to cell phones. This case concerns one of theseexceptions, which applies to calls “made solely to collect a debtowed to or guaranteed by the United States.” 47 U. S. C.§227(b)(1)(A)(iii). A majority of the Court holds that theexception violates the Constitution’s First Amendment. In my view,it does not.

I

This case concerns the Telephone ConsumerProtection Act of 1991. That Act was designed to “protec[t ]telephone consumers from th[e] nuisance and privacy invasion”caused by automated and prerecorded phone calls. §2(12), 105Stat.2395. The Act, among other things, bans almost all robocalls madeto cell phones. In particular, it forbids “any call (other than acall made for emergency purposes or made with the prior expressconsent of the called party) using any automatic telephone dialingsystem or an artificial or prerecorded voice . . . to anytelephone number assigned to a . . . cellular telephoneservice.” §3(a) (codified at 47 U. S. C.§227(b)(1)(A)(iii)). The Act delegates authority to the FederalCommunications Commission to make certain additional exceptionsfrom that general cell phone robocall restriction.§227(b)(2)(C).

More than 20 years later, Congress enactedanother statute, which created the government-debt exception. TheOffice of Management and Budget had reported to Congress that in“this time of fiscal constraint . . . the FederalGovernment should ensure that all debt owed to the United States iscollected as quickly and efficiently as possible.” Office ofManagement and Budget, Analytical Perspectives, Budget of theU. S. Government, Fiscal Year 2016, p. 128 (2015),https://www.govinfo.gov/content/pkg/BUDGET-2016-PER/pdf/BUDGET-2016-PER.pdf.It recommended that Congress permit “the use of automatic dialingsystems and prerecorded voice messages” to contact “wireless phonesin the collection of debt owed to or granted [sic] by theUnited States.”Ibid.

Congress adopted that recommendation. It enacteda provision that excepts from the general cell phone robocallrestriction any call “made solely to collect a debt owed to orguaranteed by the United States.” 129Stat. 588; see alsoibid. (categorizing the exception as a “debt collectionimprovemen[t]” measure). The question here is whether the FirstAmendment prohibits the Federal Government from enacting thatgovernment-debt collection measure.

II

The plurality finds the government-debtexception unconstitutional primarily by applying a logicalsyllogism: (1) “Content-based laws are subject to strict scrutiny.”Ante, at 6 (citingReed v.Town of Gilbert,576 U.S. 155, 163–164 (2015)). (2) The exception is based on“content.”Ante, at 7. (3) Hence, the exception is subjectto “strict scrutiny.”Ante, at 9. (4) And the Governmentconcedes that the exception cannot survive “strict scrutiny”examination.Ibid.

The problem with that approach, whichreflexively applies strict scrutiny to all content-based speechdistinctions, is that it is divorced from First Amendment values.This case primarily involves commercial regulation—namely, debtcollection. And, in my view, there is no basis here to apply“strict scrutiny” based on “content-discrimination.”

To appreciate why, it is important to understandat least one set of values that underlie the First Amendment andthe related reasons why courts scrutinize some speech restrictionsstrictly. The concept is abstract but simple: “We the People of theUnited States” have created a government of laws enacted by electedrepresentatives. For our government to remain ademocraticrepublic, the people must be free to generate, debate, and discussboth general and specific ideas, hopes, and experiences. The peoplemust then be able to transmit their resulting views and conclusionsto their elected representatives, which they may do directly, orindirectly through the shaping of public opinion. The object ofthat transmission is to influence the public policy enacted byelected representatives. As this Court has explained, “[t]he FirstAmendment was fashioned to assure unfettered interchange of ideasfor the bringing about of political and social changes desired bythe people.”Meyer v.Grant,486U.S. 414, 421 (1988) (internal quotation marks omitted). Seegenerally R. Post, Democracy, Expertise, and Academic Freedom: AFirst Amendment Jurisprudence for the Modern State 1–25 (2012).

In other words, the free marketplace of ideas isnot simply a debating society for expressing thought in a vacuum.It is in significant part an instrument for “bringing about. . . political and social chang[e ].”Meyer,486 U. S., at 421. The representative democracy that “We thePeople” have created insists that this be so. SeeSorrell v.IMS Health Inc.,564 U.S.552, 583 (2011) (Breyer, J., dissenting). See generally,e.g., B. Neuborne, Madison’s Music: On Reading the FirstAmendment (2015).

It is thus no surprise that our First Amendmentjurisprudence has long reflected these core values. This Court’scases have provided heightened judicial protection for politicalspeech, public forums, and the expression of all viewpoints on anygiven issue. See,e.g.,Buckley v.AmericanConstitutional Law Foundation, Inc.,525U.S. 182, 186–187 (1999) (heightened protection for “corepolitical speech”);Rosenberger v.Rector and Visitors ofUniv. of Va.,515 U.S.819, 829–830 (1995) (government discrimination on basis of“particular views taken by speakers on a subject” presumptivelyunconstitutional);Boos v.Barry,485 U.S.312, 321 (1988) (“content-based restriction[s] on politicalspeech in a public forum” subject to “most exacting scrutiny”(emphasis deleted));Perry Ed. Assn. v.Perry LocalEducators’ Assn.,460 U.S.37, 45–46 (1983) (content-based exclusions in public forumssubject to strict scrutiny). These cases reflect thestraightforward principle that “governments must not be allowed tochoose which issues are worth discussing or debating.”Reed,576 U. S., at 182 (Kagan, J., concurring in judgment)(internal quotation marks omitted).

From a democratic perspective, however, it isequally important that courts not use the First Amendment in a waythat would threaten the workings of ordinary regulatory programsposing little threat to the free marketplace of ideas enacted asresult of that public discourse. As a general matter, the strictestscrutiny should not apply indiscriminately to the very “politicaland social changes desired by the people”—that is, to thosegovernment programs which the “unfettered interchange of ideas” hassought to achieve.Meyer, 486 U. S., at 421 (internalquotation marks omitted). Otherwise, our democratic system wouldfail, not through the inability of the people to speak or totransmit their views to government, but because of an electedgovernment’s inability to translate those views into action.

Thus, once again, it is not surprising that thisCourt has applied less strict standards when reviewing speechrestrictions embodied in government regulatory programs. ThisCourt, for example, has applied a “rational basis” standard forreviewing those restrictions when they have only indirect impactson speech. SeeGlickman v.Wileman Brothers &Elliott, Inc.,521 U.S.457, 469–470, 477 (1997). And it has applied a mid-levelstandard of review—often termed “intermediate scrutiny”—when thegovernment directly restricts protected commercial speech. SeeCentral Hudson Gas & Elec. Corp. v.Public Serv.Comm’n of N. Y.,447 U.S.557, 561–564 (1980).

This account of well-established principles atthe core of the First Amendment demonstrates the problem with theplurality’s approach. To reflexively treat all content-baseddistinctions as subject to strict scrutiny regardless of context orpractical effect is to engage in an analysis untethered from theFirst Amendment’s objectives. And in this case, strict scrutiny isinappropriate. Recall that the exception at issue here concernsdebt collection—specifically a method for collectinggovernment-owned or -backed debt. Regulation of debt collectiondoes not fall on the first side of the democratic equation. It hasnext to nothing to do with the free marketplace of ideas or thetransmission of the people’s thoughts and will to the government.It has everything to do with the second side of the equation, thatis, with government response to the public will through ordinarycommercial regulation. To apply the strictest level of scrutiny tothe economically based exemption here is thus remarkable.

I recognize that the underlying cell phonerobocall restriction primarily concerns a means of communication.And that fact, as I discuss below, triggers some heightenedscrutiny, reflected in an intermediate scrutiny standard. Strictscrutiny and its strong presumption of unconstitutionality,however, have no place here.

The plurality claims that its approach, whichcategorically applies strict scrutiny to content-baseddistinctions, will not “affect traditional or ordinary economicregulation of commercial activity.”Ante, at 9. But how isthat so? Much of human life involves activity that takes placethrough speech. And much regulatory activity turns upon speechcontent. See,e.g., Reed, 576 U. S., at 177–178(Breyer, J., concurring in judgment) (giving examples). Consider,for example, the regulation of securities sales, drug labeling,food labeling, false advertising, workplace safety warnings,automobile airbag instructions, consumer electronic labels, taxforms, debt collection, and so on. All of those regulationsnecessarily involve content-based speech distinctions. What are thedifferences between regulatory programs themselves other thandifferences based on content? After all, the regulatory spheres inwhich the Securities and Exchange Commission or the Federal TradeCommission operate are defined by content. Put simply, treating allcontent-based distinctions on speech as presumptivelyunconstitutional is unworkable and would obstruct the ordinaryworkings of democratic governance.

That conclusion is true here notwithstanding theplurality’s effort to bring political speech into the FirstAmendment analysis. Seeante, at 7, 25 (characterizingCongress as having “favored debt-collection speech over plaintiffs’political speech”). It is true that the underlying cell phonerobocall restriction generally prohibits political speakers frommaking robocalls. But that has little to do with thegovernment-debt exception orits practical effect. Nor doesit justify the application of strict scrutiny.

Consider prescription drug labels, securitiesforms, and tax statements. A government agency might reasonablyspecify just what information the form or label must contain andfurther provide that the form or label may not contain otherinformation (thereby excluding political statements). No one wouldthink that the exclusion of political speech, say, from a druglabel, means that courts must examine all other regulatoryexceptions with strict scrutiny. Put differently, it is hard toimagine that such exceptions threaten political speech in themarketplace of ideas, or have any significant impact on the freeexchange of ideas. To treat those exceptions as presumptivelyunconstitutional would work a significant transfer of authorityfrom legislatures and agencies to courts, potentially inhibitingthe creation of the very government programs for which the people(after debate) have voiced their support, despite those programs’minimal speech-related harms. SeeSorrell, 564 U. S.,at 584–585 (Breyer, J., dissenting). Given the values at the heartof the First Amendment, seesupra, at 3–5, thatinterpretation threatens to stand that Amendment on its head. Itcould also lead the Court to water down the strict scrutinystandard, which would limit speech protections in situations wherestrict scrutiny’s strong protections should properly apply.Reed, 576 U. S., at 178 (Breyer, J., concurring injudgment).

If, as I have argued, the First Amendment doesnot support the mechanical conclusion that content discriminationautomatically triggers strict scrutiny, what role might contentdiscrimination play? The plurality is correct when it quotes thisCourt as having said that the government may not discriminate“ ‘in the regulation of expression on the basis of the contentof that expression.’ ”Ante, at 6 (quotingHudgens v.NLRB,424 U.S.507, 520 (1976)). If, however, this Court is to apply the FirstAmendment consistently with the democratic values embodied withinthat Amendment, that kind of statement must reflect a rule of thumbapplicable only in certain circumstances. SeeReed, 576U. S., at 176 (Breyer, J., concurring in judgment);id., at 183 (Kagan, J., concurring in judgment) (“We canadminister our content-regulation doctrine with a dose of commonsense, so as to leave standing laws that in no way implicate itsintended function”).

Indeed, that must be so given that this Court’sFirst Amendment jurisprudence itself ties the constitutionalprotection speech receives to the content or purpose of thatspeech. The Court has held that entire categories of speech—forexample, obscenity, fraud, and speech integral to criminalconduct—are generally unprotected by the First Amendment entirelybecause of their content. SeeMiller v.California,413 U.S.15, 23 (1973) (obscenity);Virginia Bd. of Pharmacy v.Virginia Citizens Consumer Council, Inc.,425 U.S.748, 771 (1976) (fraud);Giboney v.Empire Storage& Ice Co.,336 U.S.490, 498 (1949) (speech integral to criminal conduct). AsJustice Stevens pointed out, “our entire First Amendmentjurisprudence creates a regime based on the content of speech.”R. A. V. v.St. Paul,505 U.S.377, 420 (1992) (opinion concurring in judgment); seeid., at 420–422 (providing examples). Given that this Courtlooks to the nature and content of speech to determine whether, orto what extent, the First Amendment protects it, it makes littlesense to treatevery content-based distinction Congress hasmade as presumptively unconstitutional.

Moreover, it is no answer to claim that thisCourt’s precedents categorically require such an analysis. Seeante, at 9, n. 5 (plurality opinion). Our FirstAmendment jurisprudence has always been contextual and has defiedstraightforward reduction to unyielding categorical rules. The ideathat broad language in any one case (evenReed) hascategorically determined how content discrimination should beapplied inevery single context is both wrong and reflectsan oversimplification and over-reading of our precedent. Thediversity of approaches in this very case underscores the pointthat the law here is far from settled. Indeed, the plurality itselfdisclaims the idea that its rule would apply to unsettle“traditional or ordinary economic regulation of commercialactivity,” indicating that the plurality presumably thinks thereare some outer bounds to its broad language.Ante, at 9. Thequestion here is whether the Court’s general statements aboutcontent discrimination triggering strict scrutiny, including inReed, make sense as applied inthis context. As Ihave explained, they do not.

That said, I am not arguing for the abolition ofthe concept of “content discrimination.” There are times when usingcontent discrimination to trigger scrutiny is eminently reasonable.Specifically, when content-based distinctions are used as a methodfor suppressing particular viewpoints or threatening the neutralityof a traditional public forum, content discrimination triggeringstrict scrutiny is generally appropriate. SeeReed, 576U. S., at 176 (Breyer, J., concurring in judgment);id., at 182–183 (Kagan, J., concurring in judgment).

Neither of those situations is present here.Outside of these circumstances, content discrimination can at timeshelp determine the strength of a government justification oridentify a potential interference with the free marketplace ofideas. Seeid., at 176–177 (Breyer, J., concurring injudgment). But, as I have explained, this case is not aboutprotecting the marketplace of ideas. It is not about the formationof public opinion or the transmission of the people’s will toelected representatives. It is fundamentally about a method ofregulating debt collection.

III

I would examine the validity of the regulationat issue here using a First Amendment standard that (unlike strictscrutiny) does not strongly presume that a regulation that affectsspeech is unconstitutional. However, given that the government-debtexception does directly impact a means of communication, theappropriate standard requires a closer look at the restriction thandoes a traditional “rational basis” test. A proper inquiry shouldexamine the seriousness of the speech-related harm, the importanceof countervailing objectives, the likelihood that the restrictionwill achieve those objectives, and whether there are other, lessrestrictive ways of doing so. Narrow tailoring in this context,however, does not necessarily require the use of theleast-restrictive means of furthering those objectives. Cf.Ward v.Rock Against Racism,491U.S. 781, 797–799, and n. 6 (1989) (explaining that outside ofstrict scrutiny review, narrow tailoring does not require the useof least-restrictive-means analysis). That inquiry ultimatelyevaluates a restriction’s speech-related harms in light of itsjustifications. We have typically called this approach“intermediate scrutiny,” though we have sometimes referred to it asan assessment of “fit,” sometimes called it “proportionality,” andsometimes just applied it without using a label. SeeUnitedStates v.Alvarez,567 U.S.709, 730–731 (2012) (Breyer, J., concurring in judgment);Reed, 576 U. S., at 179 (Breyer, J., concurring injudgment).

Applying this Court’s intermediate scrutinyanalysis, I would begin by asking just what the First Amendmentharm is here. As Justice Kavanaugh notes, the government-debtexception provides no basis for undermining the general cell phonerobocall restriction.Ante, at 10–11. Indeed, looking at thegovernment-debt exception in context, we can see that the practicaleffect of the exception, taken together with the rest of thestatute, is to putnon-government debt collectors at adisadvantage. Their speech operates in the same sphere asgovernment-debt collection speech, communicates comparablemessages, and yet does not have the benefit of a particularinstrument of communication (robocalls). While this is aspeech-related harm, debt-collection speech is both commercial andhighly regulated. See Brief for Petitioners 20–21 (describingmultiple restrictions imposed by the Fair Debt Collection PracticesAct on communications by debt collectors in the course of debtcollection). The speech-related harm at issue here—and any relatedeffect on the marketplace of ideas—is modest.

What, then, is the justification for this harm?The purpose of the exception is to further the protection of thepublic fisc. Seesupra, at 2. That protection is animportant governmental interest. Private debt typically involvesprivate funds; public debt typically involves funds that, inprinciple, belong to all of us, and help to implement numerousgovernmental policies that the people support.

Finally, is the exception narrowly tailored? Itslimited scope shows that it is. Congress has minimized anyspeech-related harm by tying the exception directly to theGovernment’s interest in preserving the public fisc. The statutorytext makes clear that calls will only fall within the bounds ofthat exception if they are “madesolely to collect”Government debt. 47 U. S. C. §227(b)(1)(A)(iii) (emphasisadded). Thus, the exception cannot be used to permit communicationsunrelated or less directly related to that public fiscalinterest.

The upshot is that the government-debtexception, taken in context, inflicts some speech-related harm. Butthe harm, as I have explained, is related not to public efforts todevelop ideas or transmit them to the Government, but to theGovernment’s response to those efforts, which here takes the formof highly regulated commercial communications. Moreover, there isan important justification for that harm, and the exception isnarrowly tailored to further that goal. Given those facts, thegovernment-debt exception should survive intermediate FirstAmendment scrutiny.

IV

For the reasons described above, I would findthat the government-debt exception does not violate the FirstAmendment. A majority of the Court, however, has concluded thecontrary. It must thus decide whether that provision is severablefrom the rest of the statute. As to that question, I agree withJustice Kavanaugh’s conclusion that the provision is severable.Accordingly, I respectfully concur in the judgment with respect toseverability and dissent in part.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–631

_________________

WILLIAM P. BARR, ATTORNEY GENERAL, et al.,PETITIONERSv. AMERICAN ASSOCIATION OF POLITICALCONSULTANTS, INC., et al.

on writ of certiorari to the united statescourt of appeals for the fourth circuit

[July 6, 2020]

Justice Gorsuch, with whom Justice Thomasjoins as to Part II, concurring in the judgment in part anddissenting in part.

I agree with Justice Kavanaugh that theprovision of the Telephone Consumer Protection Act before usviolates the First Amendment. Respectfully, however, I disagreeabout why that is so and what remedial consequences shouldfollow.

I

The TCPA is full of regulations on robocalls.The statute limits robocalls to residential landlines, hospitals,emergency numbers, and business lines. The only provision before ustoday, however, concerns robocalls to cell phones, mobile devices,or “any service for which the called party is charged for thecall.” 47 U. S. C. §227(b)(1)(A)(iii). Before the law’senactment, many cell phone users had to pay for each call, so theysuffered not only the pleasure of robocalls, but also the privilegeof paying for them. In 1991, Congress sought to address the problemby banning nearly all unsolicited robocalls to cell phones.

But much has changed since then. Now, cell phoneusers often pay a flat monthly fee for unlimited minutes, reducingthe cost (if not the annoyance) of hearing from robocallers. Newweapons in the fight against robocallers have emerged,too—including tools that allow consumers to more easily screen andblock unwanted calls. Perhaps in recognition of these changes,Congress relaxed the ban on cellphone robocallers in 2015. Today,unsolicited calls are permitted if they are “made solely to collecta debt owed to or guaranteed by the United States.”

That leaves robocallers no shortage of material.The government backs millions upon millions of loans—student loans,home mortgages, veterans’ loans, farm loans, business loans. Whenit comes to student loans alone, the government guarantees morethan $150 billion in private loans involving over 7 millionindividuals. And, to be clear, it’s not just the government that’sallowed to call about these loans. Private lenders and debtcollectors are free to send in the robots too, so long as the debtat issue is ultimately guaranteed by the government.

Today’s plaintiffs wish to use robocalls forsomething different: to campaign and solicit donations forpolitical causes. The plaintiffs allege that the law’s continuingban on calls like theirs violates the First Amendment, and on themain points of their argument the parties agree. First, no onedoubts the TCPA regulates speech. Second, everyone accepts thatrestrictions on speech—no matter how evenhanded—must be justifiedby at least a “ ‘significant governmental interest.’ ”Ward v.Rock Against Racism,491U.S. 781, 791 (1989). And, third, the parties agree that lawsthat go further by regulating speech on the basis of content invitestill greater scrutiny. When the government seeks to censor speechbased on its content, favoring certain voices and punishing others,its restrictions must satisfy “strict scrutiny”—meaning they mustbe justified by interests that are “compelling,” not justsignificant. After all, a constitutional right would hardly beneeded to protect popular speakers; the First Amendment does itsreal work in giving voice to those a majority would silence. SeeMcCullen v.Coakley,573 U.S.464, 477–478 (2014); but seeante, at 5–6 (Breyer, J.,concurring in judgment with respect to severability and dissentingin part) (seeking to overturn precedent and allow the governmentsometimes to impose content-based restrictions to “respon[d] to thepublic will”).

In my view, the TCPA’s rule against cellphonerobocalls is a content-based restriction that fails strictscrutiny. The statute is content-based because it allows speech ona subject the government favors (collecting its debts) whilebanning speech on other disfavored subjects (including politicalmatters). Cf.ante, at 9–11 (opinion of Breyer, J.)(mistakenly characterizing the content discrimination as “notabout” political activities). The statute fails strict scrutinybecause the government offers no compelling justification for itsprohibition against the plaintiffs’ political speech. In fact, thegovernment does not dispute that, if strict scrutiny applies, itslaw must fall.

It’s easy enough to see why the government makesno effort to satisfy strict scrutiny. Now that most cell phoneplans do not charge by the call, the only justification thegovernment cites for its robocall ban is its interest in protectingconsumer privacy. No one questions that protecting consumer privacyqualifies as a legitimate and “genuine” interest for the governmentto pursue.Ante, at 2–3, 10. But before the government maycensor the plaintiffs’ speech based on its content, it must pointto acompelling interest. And if the government thinksconsumer privacy interests are insufficient to overcome itsinterest in collecting debts, it’s hard to see how the governmentmight invoke consumer privacy interests to justify banning privatepolitical speech. Especially when consumers seem to find debtcollection efforts particularly intrusive: Year after year, theFederal Trade Commission receives more complaints about the debtcollection industry than any other. The nature and breadth of thelaw’s exception calls into question the necessity of its rule.

Much precedent supports this course. As thisCourt has long explained, a law’s failure to address a wide swathof conduct implicating its supposed concern “diminish[es] thecredibility of the government’s [stated] rationale for [its]restrict[ion].”City of Ladue v.Gilleo,512 U.S.43, 52 (1994). Or, as the Court has elsewhere put it, thecompellingness of the government’s putative interest is underminedwhen its law “leaves appreciable damage to [the] supposedly vitalinterest unprohibited.”Church of Lukumi Babalu Aye, Inc. v.Hialeah,508 U.S.520, 547 (1993) (internal quotation marks omitted); see alsoGonzales v.O Centro Espírita Beneficente União doVegetal,546 U.S.418, 433 (2006). The insight is simple: A law’s failure tocover “significant tracts of conduct implicating [its] putativelycompelling interes[t] can raise . . . the inference thatthe . . . claimed interest isn’t . . . socompelling after all.”Yellowbear v.Lampert, 741F.3d 48, 60 (CA10 2014).

That’s not to say the inference is irrebuttable.The government might, for example, show that the apparentinconsistency in its law is justified by some qualitative orquantitative difference between the speech it favors and the speechit disfavors. Seeid., at 61. So if debt collectionrobocalls were less invasive of consumer privacy than other kindsof robocalls, or if they were inherently rare, an exceptionpermitting debt collection calls might not undermine thegovernment’s claimed interest in banning other calls. But thegovernment, a party with every incentive and ample resources, hasnot even tried to suggest conditions like those are present here,and understandably so: The government-debt exception allows aseeminglyinfinite number of robocalls of the type consumersappear to findmost invasive.

II

With a First Amendment violation proven, thequestion turns to remedy. Because the challenged robocall banunconstitutionally infringes on their speech, I would hold that theplaintiffs are entitled to an injunction preventing its enforcementagainst them. This is the traditional remedy for proven violationsof legal rights likely to work irreparable injury in the future.Preventing the law’s enforcement against the plaintiffs would fullyaddress their injury. And going this far, but no further, wouldavoid “short circuit[ing] the democratic process” by interferingwith the work of Congress any more than necessary.WashingtonState Grange v.Washington State Republican Party,552 U.S.442, 451 (2008).

Justice Kavanaugh’s opinion pursues a differentcourse. Invoking “severability doctrine,” it declares thegovernment-debt exception void and severs it from the statute. Asrevised by today’s decision, the law prohibits nearly all robocallsto cell phones, just as it did back in 1991. In support of thisremedy, we are asked to consider cases involving equal protectionviolations, where courts have sometimes solved the problem ofunequal treatment by leveling others “down” to theplaintiff ’s status rather than by leveling the plaintiff “up”to the status others enjoy.

I am doubtful of our authority to rewrite thelaw in this way. Many have questioned the propriety of modernseverability doctrine,[1] andtoday’s case illustrates some of the reasons why. To start, it’shard to see how today’s use of severability doctrine qualifies as aremedy at all: The plaintiffs have not challenged thegovernment-debt exception, they have not sought to have it severedand stricken, and far from placing “unequal treatment” at the“heart of their suit,” they have never complained of unequaltreatment as such.Ante, at 23. The plaintiffs point to thegovernment-debt exception only to show that the government lacks acompelling interest in restricting their speech. It isn’t evenclear the plaintiffs would have standing to challenge thegovernment-debt exception. They came to court asserting a right tospeak, not a right to be free from other speakers. Severing andvoiding the government-debt exception does nothing to address theinjury they claim; after today’s ruling, federal law bars theplaintiffs from using robocalls to promote political causes just asstoutly as it did before. What is the point of fighting this longbattle, through many years and all the way to the Supreme Court, ifthe prize for winning is no relief at all?

A severance remedy not only fails to help theplaintiffs, it harms strangers to this suit. Just five years ago,Congress expressly authorized robocalls to cell phones to collectgovernment-backed debts. Yet, today, the Court reverses thatdecision and outlaws the entire industry. It is highly unusual forjudges to render unlawful conduct that Congress has explicitly madelawful—let alone to take such an extraordinary step without warningto those who have ordered their lives and livelihoods in relianceon the law, and without affording those individuals any opportunityto be heard. This assertion of power strikes me as raising seriousseparation of powers questions, and it marks no small departurefrom our usual reliance on the adversarial process.

Nor does the analogy to equal protectiondoctrine solve the problem. That doctrine promises equality oftreatment, whatever that treatment may be. The First Amendmentisn’t so neutral. It pushes, always, in one direction: againstgovernmental restrictions on speech. Yet, somehow, in the name ofvindicating the First Amendment, our remedial course today leads tothe unlikely result that not a single person will be allowed tospeak more freely and, instead, more speech will be banned.

In an effort to mitigate at least some of theseproblems, Justice Kavanaugh suggests that the ban ongovernment-debt collection calls announced today might be appliedonly prospectively. Seeante, at 22, n. 13. But prospectivedecisionmaking has never been easy to square with the judicialpower. See,e.g., James B. Beam Distilling Co. v.Georgia,501 U.S.529, 548–549 (Scalia, J., concurring in judgment) (judicialpower is limited to “discerning what the lawis, rather thandecreeing . . . what it willtomorrow be”). And aholding that shieldsonly government-debt collection callersfrom past liability under an admittedly unconstitutional law wouldwind up endorsing the very same kind of content discrimination wesay we are seeking to eliminate.

Unable to solve the problems associated with itspreferred severance remedy, today’s decision seeks at least toidentify “harm[s]” associated with mine. Cf.ante, at 24(opinion of Kavanaugh, J.). In particular, we are reminded thatgranting an injunction in this case would allow the plaintiffs’(unpopular) speech, and that could induce others to seekinjunctions of their own, resulting in still more (unpopular)speech. But this “harm” is hardly comparable to the problemsassociated with using severability doctrine: Having to tolerateunwanted speech imposes no cognizable constitutional injury onanyone; it is life under the First Amendment, which is almostalways invoked to protect speech some would rather not hear.

*

In the end, I agree that 47 U. S. C.§227(b)(1)(A)(iii) violates the First Amendment, though not for thereasons Justice Kavanaugh offers. Nor am I able to support theremedy the Court endorses today. Respectfully, if this is whatmodern “severability doctrine” has become, it seems to me all themore reason to reconsider our course.