Robocall case exposes troubling free-speech split

On Monday the Supreme Court gladdened the hearts of cellphone users by ruling that a 1991 federal law outlawing most robocalls could largely remain on the books. But it struck down a 2015 amendment that made an exception for calls seeking to collect debts owed to or guaranteed by the federal government.

The carveout, the majority concluded, was an unconstitutional “content-based” restriction on speech. That was small consolation for the political consultants who brought the lawsuit. They still can’t use robocalls to solicit contributions to political campaigns or conduct polls.

The decision in Barr vs. American Association of Political Consultants was obviously a victory for long-suffering cellphone users. But if you read the several opinions in the case, something else becomes clear: The various justices don’t see free speech in the same way.

That’s worrisome because, with the spectacular exception of the 2010 Citizens United campaign-spending case, liberal and conservative justices alike usually have been receptive to freespeech claims under the 1st Amendment.

Flash forward to Monday’s robocall decision. Kavanaugh, in an opinion joined by Roberts and Justices Samuel A. Alito Jr. and Clarence Thomas, said the exception for government debt collectors was the sort of content-based regulation of speech that the court subjects to “strict scrutiny.” (Justice Neil M. Gorsuch agreed in a separate opinion. Justice Sonia Sotomayor said the debt-collection provision couldn’t survive even a less exacting standard of scrutiny.)

But three of the court’s liberal justices would have upheld the carveout for robocalls related to government debt collection.

Justice Stephen G. Breyer, in an opinion joined by Justices Ruth Bader Ginsburg and Elena Kagan, suggested that the court needn’t subject the debt-collection carveout to strict scrutiny because it concerned “commercial regulation,” not political speech. (Breyer also warned that too zealous an application of the “content-neutrality principle could undermine regulations that involve speech, such as drug labels or safety warnings in the workplace.)

Actually, so-called commercial free speech has been protected by the court under the 1st Amendment since 1976, when the court struck down a Virginia law prohibiting pharmacists from advertising the prices of prescription drugs.

Moreover, advertising by profit-making businesses isn’t the only area in which courts have found 1st Amendment protection for speech involving money.

In 1980, the Supreme Court struck down an ordinance that prevented some charities from soliciting door to door. And in 2015, the U.S. 7th Circuit Court of Appeals cited a Supreme Court precedent in striking down a local ordinance banning panhandling. It’s a reach to describe a request for “spare change” as a political statement that would be protected under Breyer’s reading of the 1st Amendment.

Not every legal thinker approves of the doctrine of “commercial free speech.” An old joke has it that liberals hate it because it’s commercial and conservatives hate it because it’s free speech. But whatever your opinion, a divide on the court about what the 1st Amendment means is troubling — even in a case about annoying phone calls.