`
`No. 19-631
`In the
`Supreme Court of the United States
`________________
`WILLIAM P. BARR, Attorney General;
`and 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 FOR AMICUS CURIAE FACEBOOK,
`INC. IN SUPPORT OF RESPONDENTS
`________________
`PAUL D. CLEMENT
` Counsel of Record
`DEVIN S. ANDERSON
`KASDIN M. MITCHELL
`LAUREN N. BEEBE
`KIRKLAND & ELLIS LLP
`1301 Pennsylvania Ave., NW
`Washington, DC 20004
`(202) 389-5000
`paul.clement@kirkland.com
`Counsel for Amicus Curiae Facebook, Inc.
`
`April 1, 2020
`
`
`
`CORPORATE DISCLOSURE STATEMENT
`Facebook, Inc. is a publicly traded company and
`has no parent corporation. No publicly held company
`owns 10% or more of its stock.
`
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`CORPORATE DISCLOSURE STATEMENT ............. i
`TABLE OF AUTHORITIES ...................................... iii
`STATEMENT OF INTEREST ................................... 1
`STATUTORY BACKGROUND .................................. 3
`SUMMARY OF ARGUMENT .................................... 7
`ARGUMENT ............................................................... 9
`I. The TCPA’s Prohibition On ATDS Calls Is
`Unconstitutional And The Prohibition Must
`Be Struck Down, Not Expanded To Abridge
`Even More Speech ............................................... 9
`A. The TCPA’s Prohibition on ATDS Calls Is
`Unconstitutional ........................................... 9
`B. The Proper Remedy Is to Invalidate the
`TCPA’s Speech-Restricting Prohibition
`on ATDS Calls, Not to Rewrite It to
`Abridge Even More Speech ........................ 19
`II. The Statutory ATDS Question Is Closely
`Related, Has Divided The Circuits, And The
`Ninth Circuit’s Outlier
`Interpretation
`Exacerbates The Constitutional Problems ....... 23
`CONCLUSION ......................................................... 33
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Cases
`ACA Int’l v. FCC,
`885 F.3d 687 (D.C. Cir. 2018) .......................... 25, 29
`Ark. Writers’ Project, Inc. v. Ragland,
`481 U.S. 221 (1987) ................................................ 12
`Brickman v. Facebook, Inc.,
`230 F. Supp. 3d 1036 (N.D. Cal. 2017).................... 2
`Brown v. Entm’t Merchs. Ass’n,
`564 U.S. 786 (2011) ................................................ 12
`Campbell-Ewald Co. v. Gomez,
`136 S. Ct. 663 (2016) ............................................ 4, 5
`Comptroller of the Treasury of Md. v. Wynne,
`135 S. Ct. 1787 (2015) ............................................ 21
`Denver Area Educ. Telecomms.
`Consortium, Inc. v. FCC,
`518 U.S. 727 (1996) ................................................ 29
`Dominguez v. Yahoo, Inc.,
`629 F. App’x 369 (3d Cir. 2015) ......................... 4, 17
`Dominguez v. Yahoo, Inc.,
`894 F.3d 116 (3d Cir. 2018) ............................. 25, 29
`Duguid v. Facebook, Inc.,
`926 F.3d 1146 (9th Cir. 2019) ........................ passim
`First Nat’l Bank of Bos. v. Bellotti,
`435 U.S. 765 (1978) ................................................ 12
`Gadelhak v. AT&T Servs., Inc.,
`950 F.3d 458 (7th Cir. 2020) .................. 2, 27, 28, 30
`Glasser v. Hilton Grand Vacations Co.,
`948 F.3d 1301 (11th Cir. 2020) .............. 2, 26, 27, 28
`
`
`
`iv
`
`Greater New Orleans Broad. Ass’n, Inc.
`v. United States,
`527 U.S. 173 (1999) ................................................ 12
`Holt v. Facebook, Inc.,
`240 F. Supp. 3d 1021 (N.D. Cal. 2017).................... 2
`Krakauer v. Dish Network, L.L.C.,
`925 F.3d 643 (4th Cir. 2019) .................................... 5
`Marks v. Crunch San Diego, LLC,
`904 F.3d 1041 (9th Cir. 2018) .............. 17, 24, 25, 26
`Matthews v. Town of Needham,
`764 F.2d 58 (1st Cir. 1985) .................................... 13
`McCullen v. Coakely,
`573 U.S. 464 (2014) .......................................... 14, 16
`Mims v. Arrow Fin. Servs., LLC,
`565 U.S. 368 (2012) .................................................. 3
`Rappa v. New Castle Cty.,
`18 F.3d 1043 (3rd Cir. 1994) ........................... 12, 21
`Reed v. Town of Gilbert,
`135 S. Ct. 2218 (2015) .................................... passim
`Roberts v. Medco Health Sols., Inc.,
`2016 WL 3997071 (E.D. Mo. July 26, 2016) ......... 16
`Rosenberger
`v. Rector & Visitors of Univ. of Va.,
`515 U.S. 819 (1995) ................................................ 13
`Sable Commc’ns of Cal., Inc. v. FCC,
`492 U.S. 115 (1989) ................................................ 29
`Sorrell v. IMS Health Inc.,
`564 U.S. 552 (2011) ................................................ 12
`United States v. Williams,
`553 U.S. 285 (2008) ................................................ 28
`
`
`
`v
`
`Ward v. Rock Against Racism,
`491 U.S. 781 (1989) ................................................ 15
`Willson v. City of Bel-Nor,
`924 F.3d 995 (8th Cir. 2019) .................................. 12
`Constitutional Provision
`U.S. Const. amend. I .............................................. 7, 9
`Statutes
`47 U.S.C. §227(a)(1) ........................................ 4, 17, 24
`47 U.S.C. §227(b)(1)(A) ................................. 3, 5, 6, 14
`47 U.S.C. §227(b)(2)(C) ......................................... 6, 16
`47 U.S.C. §227(b)(3) ................................................ 4, 5
`Bipartisan Budget Act of 2015,
`Pub. L. No. 114-74, 129 Stat. 584 ........................... 6
`Regulation
`47 C.F.R. §64.1200(f)(4) .............................................. 5
`Other Authorities
`FCC, Public Notice: Consumer and
`Governmental Affairs Bureau Seeks
`Further Comment on Interpretation of the
`TCPA in light of the Ninth Circuit’s Marks
`v. Crunch San Diego, LLC Decision
`(Oct. 3, 2018), https://bit.ly/2Qso4KG ................... 25
`H.R. Rep. No. 102-317 (1991) ..................................... 4
`In Re Rules & Regulations Implementing the
`the Telephone Consumer Protection Act of
`1991, 30 FCC Rcd. 7961 (2015) ............................. 16
`In Re Rules & Regs. Implementing the
`Telephone Consumer Protection Act of 1991,
`31 FCC Rcd. 9054 (2016) ....................................... 16
`
`
`
`vi
`
`Nick Jarman, Modernizing the Debt
`Collection Process: TCPA Risks and Foti,
`WebRecon LLC (Apr. 28, 2013),
`https://bit.ly/39hC8j9 ............................................... 7
`Marissa A. Potts, “Hello, It’s Me [Please Don’t
`Sue Me!]”: Examining the FCC’s Overbroad
`Calling Regulations Under the TCPA,
`82 Brook. L. Rev. 281 (2016) ................................... 5
`Petition for writ of certiorari,
`Facebook, Inc. v. Duguid, No. 19-511
`(U.S. filed Oct. 17, 2019) .................................... 3, 25
`S. Rep. No. 102-178 (1991) ......................................... 4
`Antonin Scalia & Bryan A. Garner, Reading
`Law: The Interpretation of Legal Texts
`(2012) ...................................................................... 26
`Second Notice of Inquiry, Advanced Methods
`to Target and Eliminate Unlawful
`Robocalls, 32 FCC Rcd. 6007 (2017) ....................... 6
`WebRecon Stats for Dec 2019, WebRecon LLC
`(Jan. 28, 2020), https://bit.ly/3bbNYfS ................ 5, 6
`
`
`
`
`
`
`
`
`
`
`
`STATEMENT OF INTEREST1
`Amicus curiae Facebook, Inc. (“Facebook”) is a
`social media and technology company with a direct
`and substantial interest in the question presented in
`this case. Facebook’s mission is to give people the
`power to build community and bring the world closer
`together. To that end, Facebook operates a service
`used by more than 2.4 billion people around the globe,
`including more than 220 million in the United States.
`People use the Facebook service to stay connected with
`friends and family, to discover what is going on in the
`world, and to share and express what matters to them.
`Facebook has a particular interest in the issue
`raised here because it has been sued in multiple
`jurisdictions
`for allegedly violating
`the 1991
`Telephone Consumer Protection Act’s
`(“TCPA”)
`prohibition on making “calls” using an automatic
`telephone dialing system (“ATDS”). In Duguid v.
`Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019), for
`example, the plaintiff sought mandatory statutory
`penalties for targeted security-related text message
`notifications. These security messages notify an
`individual user that her Facebook account has been
`accessed from a new device at a specific time so she
`can take immediate action and prevent improper
`access by an unknown actor. Other lawsuits against
`
`1 Pursuant to Supreme Court Rule 37.6, amicus curiae states
`that no counsel for any party authored this brief in whole or in
`part and that no entity or person, aside from amicus curiae, its
`members, and its counsel, made any monetary contribution
`toward the preparation or submission of this brief. Pursuant to
`Supreme Court Rule 37.3, counsel of record for all parties have
`consented to this filing in letters on file with the Clerk’s office.
`
`
`
`2
`
`Facebook relate to text messages that users request,
`such as updates regarding friends’ birthdays or recent
`activities. See Brickman v. Facebook, Inc., 230 F.
`Supp. 3d 1036 (N.D. Cal. 2017); Holt v. Facebook, Inc.,
`240 F. Supp. 3d 1021 (N.D. Cal. 2017). The plaintiffs
`in these cases claim they did not sign up for these
`notifications, likely because they acquired “recycled”
`cellphone numbers previously assigned to Facebook
`users who did sign up for these security and other
`alerts.
`Courts adjudicating such lawsuits have split over
`the meaning and reach of the TCPA’s prohibition on
`ATDS calls. They have simultaneously recognized
`serious First Amendment problems with the statute,
`but without providing meaningful relief to parties
`facing massive liability for allegedly violating the
`TCPA. Once again, Duguid is a case in point. First,
`the Ninth Circuit doubled down on its broad reading
`of an ATDS that would treat an ordinary smartphone
`as an ATDS, while acknowledging that this view was
`in acknowledged conflict with the Third Circuit. Two
`other circuits have subsequently rejected the Ninth
`Circuit’s statutory analysis. See Glasser v. Hilton
`Grand Vacations Co., 948 F.3d 1301 (11th Cir. 2020);
`Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir.
`2020).
`Second, the Ninth Circuit accepted Facebook’s
`argument that the prohibition on ATDS calls violated
`the First Amendment because it penalized Facebook’s
`alleged ATDS calls while exempting comparable calls
`based on their content. But despite accepting
`Facebook’s First Amendment argument, the Ninth
`Circuit denied Facebook any relief. Instead of
`
`
`
`3
`
`invalidating the challenged ATDS prohibition as
`unconstitutional, the Ninth Circuit broadened it by
`excising the statute’s exception for calls designed to
`collect government debts.
`Facebook’s petition for a writ of certiorari from the
`Ninth Circuit’s mistaken decision is fully briefed and
`remains pending. Facebook, Inc. v. Duguid, No. 19-
`511 (U.S. filed Oct. 17, 2019). Facebook has an acute
`interest in explaining that the Ninth Circuit’s
`statutory ruling is wrong and exacerbates the TCPA’s
`constitutional difficulties. It also has an interest in
`explaining how the Ninth Circuit’s “severability”
`analysis is flawed and incompatible with bedrock First
`Amendment principles.
`STATUTORY BACKGROUND
`1. In 1991, “[a]lmost thirty years ago, in the age of
`fax machines and dial-up internet,” and long before
`the first smartphones or the widespread adoption of
`unlimited text messaging plans, Congress “took aim at
`unsolicited robocalls” by enacting the TCPA. Duguid,
`926 F.3d at 1149; see also Mims v. Arrow Fin. Servs.,
`LLC, 565 U.S. 368, 370-71 (2012) (Congress passed the
`TCPA
`in response
`to
`“[v]oluminous consumer
`complaints about abuses of telephone technology”).
`The TCPA, among other things, makes it unlawful for
`a person to place calls without prior consent to
`cellphones using a device called an “automatic
`telephone dialing system” or ATDS. 47 U.S.C.
`§227(b)(1)(A). Although Congress has not updated the
`TCPA to address technological changes, like the rise
`of texting, courts have interpreted “calls” to include
`text messages, even when the recipient is not charged
`
`
`
`4
`
`for receiving the message. See Campbell-Ewald Co. v.
`Gomez, 136 S. Ct. 663, 667 (2016).
`The statute defines an ATDS as “equipment
`which has the capacity—(A) to store or produce
`telephone numbers to be called, using a random or
`sequential number generator; and (B) to dial such
`numbers.” 47 U.S.C. §227(a)(1). Congress used the
`phrase “random or sequential number generator” to
`address distinct problems posed by the autodialing
`technology prevalent
`in 1991.
` At that time,
`“telemarketers [were using] autodialing equipment
`that either called numbers in large sequential blocks
`or dialed random 10-digit strings.” Dominguez v.
`Yahoo, Inc. (Dominguez I), 629 F. App’x 369, 372 (3d
`Cir. 2015). Random dialing created a risk that
`unlisted and specialized numbers could be “tie[d] up,”
`preventing those numbers from making or receiving
`any other calls. S. Rep. No. 102-178, at 2 (1991), as
`in 1991 U.S.C.C.A.N. 1968, 1969.
`reprinted
`Sequential dialing allowed callers to reach every
`number in a particular area, creating a “potentially
`dangerous” situation in which no outbound calls
`(including, for example, emergency calls) could be
`placed. H.R. Rep. No. 102-317, at 10 (1991), available
`at 1991 WL 245201.
`2. The TCPA includes a private right of action that
`carries substantial potential penalties. 47 U.S.C.
`§227(b)(3). A person who uses an ATDS to place a call
`(which includes sending a text message) to a cellphone
`without consent is subject to an automatic $500
`statutory penalty per call, with treble damages
`available—increasing the potential statutory penalty
`to $1,500 per call—“[i]f the court finds that the
`
`
`
`5
`
`defendant willfully or knowingly” committed the
`violation. Id. §227(b)(3)(B)-(C). The substantial
`statutory penalties available under the statute have
`made the TCPA one of the most frequently litigated
`federal statutes, and the availability of fixed statutory
`penalties that arguably obviate the need to prove
`individualized damages has made it a frequent basis
`for putative class actions and in terrorem settlements.
`See, e.g., Krakauer v. Dish Network, L.L.C., 925 F.3d
`643, 655-56 (4th Cir. 2019); WebRecon Stats for Dec
`2019, WebRecon
`LLC
`(Jan.
`28,
`2020),
`https://bit.ly/3bbNYfS; Marissa A. Potts, “Hello, It’s
`Me [Please Don’t Sue Me!]”: Examining the FCC’s
`Overbroad Calling Regulations Under the TCPA, 82
`Brook. L. Rev. 281, 302-05 (2016) (“Recent trends in
`TCPA litigation show that TCPA lawsuits are clogging
`the judicial system. These lawsuits attract plaintiffs’
`attorneys because they frequently provide lucrative
`class-action settlement opportunities.”
`(footnote
`omitted)).
`3. The TCPA’s prohibition on ATDS calls has
`included a number of speaker-based and content-
`based exceptions from the beginning. When the TCPA
`was passed in 1991, the government exempted itself
`and its agents from the ATDS prohibition. See U.S.Br.
`at 5 (“[T]he term ‘person’ as used in the TCPA does not
`encompass the federal government or its agencies.”);
`see also Campbell-Ewald, 136 S. Ct. at 672. Congress
`also exempted ATDS calls “made for emergency
`purposes,” 47 U.S.C. §227(b)(1)(A), which the FCC has
`defined as calls “made necessary in any situation
`affecting the health and safety of consumers,” 47
`C.F.R. §64.1200(f)(4). And it exempted calls made
`with the recipient’s “prior express consent.” 47 U.S.C.
`
`
`
`6
`
`§227(b)(1)(A). The prior-consent exception was
`relatively straightforward to apply in the early 1990s
`when most telephone numbers were landline numbers
`that rarely changed, but its application has become
`increasingly challenging as tens of millions of phone
`numbers are transferred (or “recycled”) each year, and
`yet there is no reliable database of recycled numbers
`or means for verifying the current ownership of a
`particular number. See Second Notice of Inquiry,
`Advanced Methods to Target and Eliminate Unlawful
`Robocalls, 32 FCC Rcd. 6007, 6009 ¶5 (2017). As a
`result, it is not unusual for someone to dial the
`number of a person who had given consent yet
`inadvertently reach a different person who has not
`given consent. Finally, Congress gave the FCC a free-
`floating ability to exempt free calls and texts “to a
`telephone number assigned to a cellular telephone
`service that are not charged to the called party, subject
`to such conditions as the Commission may prescribe
`as necessary in the interest of the privacy rights this
`section
`is
`intended
`to protect.”
` 47 U.S.C.
`§227(b)(2)(C).
`Following a sharp rise in TCPA litigation in the
`mid-2000s, Congress amended the TCPA to add yet
`another speaker- and content-based exception to the
`ATDS prohibition, excepting calls “made solely to
`collect a debt owed to or guaranteed by the United
`States.” Bipartisan Budget Act of 2015, Pub. L. No.
`114-74, §301(a)(1)(A), 129 Stat. 584, 588; 47 U.S.C.
`§227(b)(1)(A)(iii); see WebRecon Stats for Dec 2019,
`https://bit.ly/3bbNYfS
`(showing
`rise
`in TCPA
`complaints from approximately 350 in 2010 to more
`than 3,500 in 2015); Nick Jarman, Modernizing the
`Debt Collection Process: TCPA Risks and Foti,
`
`
`
`7
`
`WebRecon LLC (Apr. 28, 2013), https://bit.ly/39hC8j9
`(“Lawsuits alleging violations of the [TCPA] are
`increasing at a rapid pace against debt collectors, with
`each lawsuit threatening the potential liability of class
`action litigation.”).
`SUMMARY OF ARGUMENT
`The First Amendment provides that “Congress
`shall make no law … abridging the freedom of
`speech.” U.S. Const. amend. I. Two principles that
`flow directly
`from that text strongly support
`respondents’ position on both the merits and the
`remedy. First, the proper focus is the aspect of the law
`that abridges speech—here, the statutory prohibition
`on ATDS calls—and not on speech-permitting
`exceptions. The speech-permitting exceptions may
`underscore the content-based nature of the speech-
`abridging prohibition and may trigger strict scrutiny,
`but the focus of the constitutional analysis—and what
`is unconstitutional if the government cannot carry its
`burden—is the speech-abridging prohibition. And if,
`as here,
`the
`speech-abridging prohibition
`is
`unconstitutional, the only appropriate remedy is to
`invalidate that prohibition, not to broaden it by
`excising a speech-permitting exception.
`Second, the First Amendment is not an anti-
`discrimination prohibition; it is a prohibition against
`abridging speech. Statutes that discriminate on the
`basis of speaker, viewpoint, or topic appropriately
`trigger heightened scrutiny, but
`it
`is not the
`discrimination as such that violates the First
`Amendment, it is the abridgement of speech. This has
`obvious implications for the appropriate remedy.
`When a content-based prohibition triggers and fails
`
`
`
`8
`
`heightened scrutiny, the only remedy consistent with
`the First Amendment is one that invalidates the
`speech-abridging prohibition.
` A “remedy” that
`broadens the prohibition of speech by excising speech-
`permitting exceptions is antithetical to the First
`Amendment.
`These two principles make clear that the Fourth
`Circuit was correct in concluding that the TCPA was
`unconstitutional, but erred in excising the speech-
`permitting government-debt-collection
`exception.
`Even in its constitutional analysis, the Fourth Circuit
`was unduly focused on the government-debt-collection
`exception. In reality, the TCPA’s prohibition on ATDS
`calls included speaker- and content-based exceptions
`from the outset. The government-debt-collection
`exception simply confirms that the ATDS prohibition
`is an unconstitutional abridgement of speech.
`The constitutional question before the Court is
`informed by an important question of statutory
`construction that has divided the lower courts. The
`Ninth Circuit has interpreted the term ATDS—and
`thus the TCPA’s prohibition on ATDS calls—broadly
`to encompass virtually every modern smartphone.
`Every other circuit to consider the question has
`rejected the Ninth Circuit’s view and limited the
`statute to the kind of specialized robocalling devices
`that were prevalent when Congress passed the TCPA
`in 1991. Indeed, since the Court granted this petition,
`the Seventh and Eleventh Circuit have weighed in to
`deepen the circuit split and cement the Ninth Circuit’s
`view as an outlier.
`The Ninth Circuit’s position exacerbates the
`constitutional problems in two ways. First, it
`
`
`
`9
`
`amplifies the TCPA’s content-based problems: the
`broader the prohibition, the greater need
`for
`exceptions for favored topics and speakers. Second,
`wholly apart from any troubling distinctions based on
`speaker or topic, a prohibition on potentially every
`number dialed by a smartphone would be hopelessly
`overbroad. If this Court broadly invalidates the
`prohibition on ATDS calls such that it cannot be a
`basis for liability even for calls placed before the
`government-debt-exception was added to the statute
`in 2015, then the Ninth Circuit’s outlying view will
`have no effect. But absent such a broad holding, the
`Court will need to resolve this critical statutory issue
`that has divided the circuits, and could do so by
`granting Facebook’s pending petition.
`ARGUMENT
`I. The TCPA’s Prohibition On ATDS Calls Is
`Unconstitutional And The Prohibition Must
`Be Struck Down, Not Expanded To Abridge
`Even More Speech.
`A. The TCPA’s Prohibition on ATDS Calls
`Is Unconstitutional.
`The basic principles of this Court’s First
`Amendment
`jurisprudence—from prohibitions on
`content-based and viewpoint discrimination to levels
`of scrutiny—are so familiar that it can be tempting to
`skip to the doctrine and past the constitutional text.
`But as in every constitutional case, the proper starting
`place is the actual text. The First Amendment
`provides
`that
`“Congress
`shall make
`no
`law … abridging the freedom of speech.” U.S. Const.
`amend. I. Two important principles follow directly
`from that prohibition on laws abridging the freedom of
`
`
`
`10
`
`speech. First, the focus of the constitutional analysis
`should be on the prohibition or abridgement of speech.
`Exceptions to a prohibition, such as the government-
`debt-collection exception to the TCPA’s prohibition on
`ATDS calls, may inform the nature of or justification
`for the prohibition, but the focus of the constitutional
`analysis must remain on what “abridges” speech.
`Second, the First Amendment is not an anti-
`discrimination prohibition. While discrimination
`among speakers, viewpoints or topics may be a
`powerful indicator of an unconstitutional abridgement
`of speech, the constitutional violation consists of
`abridging
`speech, not discriminating against
`speakers. Indeed, the most obvious First Amendment
`violation imaginable—a blanket prior restraint on all
`speech—would be
`entirely non-discriminatory.
`Applying these two text-based principles to the
`TCPA’s prohibition on ATDS calls makes the
`prohibition’s unconstitutionality clear.
`1. This Court’s cases underscore that the proper
`focus for determining the constitutionality of the
`TCPA’s prohibition on ATDS calls is that speech-
`abridging prohibition, not
`its speech-permitting
`exceptions. That focus on the speech-abridging
`prohibition is particularly clear in a case like Duguid
`where Facebook is being sued for violating the TCPA’s
`prohibition on ATDS calls. Facebook has an obvious
`interest in challenging the constitutionality of the
`very prohibition it stands accused of violating.
`Inapplicable exceptions that benefit other speakers,
`but not Facebook, by allowing them to speak because
`of the differential content of their speech undoubtedly
`inform the constitutionality of the prohibition, but
`
`
`
`11
`
`they are not the focus of Facebook’s complaint or the
`Court’s analysis.
`The government elides this critical distinction
`throughout its brief, starting with the question
`presented. The government presents this case as
`being about “whether the government-debt exception
`to the TCPA’s automated-call restriction violates the
`First Amendment.” U.S.Br. at i. But no one, either in
`this case or Duguid, suggested that the government-
`debt exception violated the First Amendment. How
`could it? The exception permits speech and imposes
`no penalties. What the challengers have argued
`violates the First Amendment
`is the TCPA’s
`prohibition on ATDS calls, which is backed with
`substantial statutory penalties. The government-debt
`exception may make clear that the government is not
`willing to abide by the prohibition when it comes to
`certain
`favored speech and that content-based
`discrimination may make it particularly clear that the
`prohibition violates the First Amendment. But it is
`the speech-abridging prohibition, and not the speech-
`permitting exception,
`that violates
`the First
`Amendment and should be the focus of this Court’s
`analysis.
`This Court’s cases are entirely consistent with
`this focus on the prohibition that allegedly abridges
`speech in violation of the First Amendment. In Reed
`v. Town of Gilbert, 135 S. Ct. 2218 (2015), for example,
`the Court addressed the Town of Gilbert’s “Sign Code.”
`The Gilbert code contained a blanket “prohibit[ion]” on
`“the display of outdoor signs anywhere within the
`Town,” but subjected that prohibition to several
`“exemptions” based on what the sign said (e.g.,
`
`
`
`12
`
`ideological signs, directional signs, or political signs).
`Id. at 2224. Pastor Reed’s concern was obviously with
`the Town’s blanket prohibition, and not with the
`various exceptions that permitted the speech of
`others. Indeed, the whole point of the constitutional
`controversy was that the signs that Pastor Reed
`wished to post did not qualify for the exceptions and
`thus were taken down by Town officials. Accordingly,
`this Court’s analysis focused on the Town’s speech
`restriction. The prohibition’s 23 different exemptions,
`three of which were most relevant, certainly informed
`the Court’s conclusion that the prohibition was
`content-based and needed to be struck down. But the
`ultimate focus of the lawsuit and the remedy was the
`applicable speech-abridging prohibition, not the
`inapplicable speech-permitting exceptions.
`Reed followed a long line of this Court’s cases
`holding that when the government enacts a broad
`prohibition on speech, but then exempts certain types
`of speech from that prohibition based on the content of
`the speech, the statutory prohibition—not the
`exception—is subject to strict scrutiny and potential
`invalidation under the First Amendment. See, e.g.,
`Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 805
`(2011); Sorrell v. IMS Health Inc., 564 U.S. 552, 563-
`64, 580 (2011); Greater New Orleans Broad. Ass’n, Inc.
`v. United States, 527 U.S. 173, 189-90 (1999); Ark.
`Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 233
`(1987); First Nat’l Bank of Bos. v. Bellotti, 435 U.S.
`765, 794-95 (1978). The vast majority of the Courts of
`Appeals are in accord. See, e.g., Willson v. City of Bel-
`Nor, 924 F.3d 995, 1000, 1004 (8th Cir. 2019); Rappa
`v. New Castle Cty., 18 F.3d 1043 (3rd Cir. 1994); id. at
`1079-80 (Alito, J., concurring); Matthews v. Town of
`
`
`
`13
`
`Needham, 764 F.2d 58, 61 (1st Cir. 1985) (Rosenn,
`Breyer, and Torruella, JJ.).
`2. A related, and equally basic, principle is that
`the First Amendment is not an anti-discrimination
`provision. Cf. Reed, 135 S. Ct. at 2229 (“[T]he First
`Amendment expressly targets the operation of the
`laws—i.e., the ‘abridg[ement] of speech’—rather than
`merely the motives of those who enacted them.”). It
`prohibits Congress from making any law that abridges
`the freedom of speech, not any law that discriminates
`among speakers, viewpoints, or topics. To be sure,
`that kind of discrimination triggers heightened
`scrutiny under the First Amendment, see, e.g.,
`Rosenberger v. Rector & Visitors of Univ. of Va., 515
`U.S. 819, 829 (1995) (“When the government targets
`not subject matter, but particular views taken by
`speakers on a subject, the violation of the First
`Amendment is all the more blatant.”), but that does
`not transform the basic prohibition of the First
`Amendment. Put differently, discrimination among
`speakers, viewpoints, and topics is not what violates
`the First Amendment, but instead provides a strong
`indicator that the government is impermissibly
`abridging speech. Thus, such discrimination is an
`appropriate trigger for heightened scrutiny, but the
`ultimate constitutional violation is the impermissible
`abridgement of speech.
`In that regard, exceptions for certain favored
`speakers or topics directly inform the justification for
`the speech prohibition in the first place. If the
`government is not willing to live with the prohibition
`when it comes to its own speech or third-party speech
`on favored topics, that is powerful evidence that the
`
`
`
`14
`
`speech restriction is both meaningful (why else would
`the government exempt favored speakers and topics?)
`and unjustified (the permissibility of exceptions
`undermines the claimed need to prohibit certain forms
`or means of speech). To be sure, discrimination among
`speakers, viewpoints, and topics raises the distinct
`concern that the government is playing the forbidden
`role of censor.
` But even then the principal
`constitutional evil is the abridgement of the speech of
`disfavored
`speakers, not
`discrimination
`qua
`discrimination.
`3. Applying these basic principles to the TCPA
`makes the unconstitutionality of its prohibition on
`ATDS calls plain. The TCPA is a classic example of a
`statute where a prohibition with numerous exceptions
`produces a content-based restriction on speech. That
`is most obviously true when the prohibition on ATDS
`calls is evaluated in light of the exception for ATDS
`calls “made solely to collect a debt owed to or
`guaranteed by the United States.”
` 47 U.S.C.
`§227(b)(1)(A)(iii). In light of the word “solely,”
`discussion of any topic besides government-debt
`collection, even in the context of a call that otherwise
`focuses on government-debt collection, renders the
`exception inapplicable and the prohibition applicable
`(absent some other exception). The only way to
`determine whether the Act’s prohibition applies is to
`consider the content of the call in order to ascertain
`whether it is prohibited or permitted, which is the
`hallmark
`of
`content-based discrimination, as
`explained in Reed, 135 S. Ct. at 2227, and McCullen v.
`Coakely, 573 U.S. 464, 479 (2014).
`
`
`
`15
`
`focused
`The Fourth and Ninth Circuits
`exclusively
`on
`the
`government-debt-collection
`exception
`in §227(b)(1)(A)(iii).
` But while that
`exception may be the most obvious provision that
`renders the ATDS prohibition content-based, it is
`hardly the only such provision. Indeed, the TCPA
`drew numerous speaker-based and content-based
`distinctions even before Congress added
`the
`government debt exception in 2015. Most obviously,
`from the very beginning, as the government
`emphasizes, the TCPA exempted the government from
`its prohibition entirely. Given the government’s
`distinct perspective on numerous issues, that carve-
`out for the government’s own speech is problematic
`and risks a form of implicit viewpoint discrimination.
`The government’s self-carve-out seems particularly
`problematic in the context of time, place, and manner
`restrictions. The justification for those restrictions is
`that they leave ample alternatives for speakers to
`communicate their messages. See, e.g., Ward v. Rock
`Against Racism, 491 U.S. 781, 791 (1989). But if the
`government is unwilling to abide by those same rules
`when it comes to its own speech, the reasonableness of
`those restrictions becomes doubtful. A restriction on
`rallies in public parks after 10:00 p.m. sounds
`reasonable enough, unless and until the government
`decides that its own civic pride rally can continue
`unabated until midnight.
`Even beyond the exemption for the government’s
`own speech, the ATDS ban has been subject to
`content-based exceptions from the outset. Perhaps
`most alarming, the statute grants the FCC a free-
`floating ability to exempt free calls and
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