Charter Communications, Inc., et al. v. Steve Gallion, et al.

The Telephone Consumer Protection Act (TCPA) imposes liability of up to $1,500 per call for any call made without prior express consent to a cell phone using an automatic telephone dialing system or an artificial or prerecorded voice. These broad prohibitions on speech, however, contain a host of exceptions, including for calls made “to collect a debt owed to or guaranteed by the United States” and calls made by governmental entities, along with various additional content-based exceptions created by the Federal Communications Commission (FCC). 47 U.S.C. § 227(b)(1)(A)(iii), (b)(2)(B). In the decision below, the Ninth Circuit held that the TCPA’s restrictions on speech were content-based and not narrowly tailored to any compelling government interest. Accordingly, the court held that the statute violated the First Amendment. But instead of holding the statute invalid for its unconstitutional prohibitions of speech, the court invoked the extraordinary “remedy” of rewriting the statute to prohibit more speech. Specifically, the Ninth Circuit purported to cure the constitutional defect by “severing” the government-debt-collection exception from the statute, while leaving all of the statute’s speech restrictions intact. In the name of the First Amendment, the Ninth Circuit thereby judicially expanded the TCPA’s abridgment of speech. The question presented is: Whether the TCPA’s prohibitions on calls made using an automatic dialing system or an artificial or prerecorded voice are unconstitutional content-based restrictions of speech, and if so whether the Ninth Circuit erred in “remedying” that constitutional