Latest Case This Week: Barr v. American Association of Political Consultants, Inc. (U.S.)

A Modest Proposal: A Heartbeat Bill for Those Who Don’t Wear Masks

MARCI A. HAMILTON

University of Pennsylvania professor Marci A. Hamilton draws upon a strategy used by anti-abortion advocates in suggesting a way to encourage (or coerce) more people into wearing masks to avoid the spread of COVID-19. Hamilton proposes requiring persons who opt not to wear a mask in public (1) to watch, on a large screen, an adult's beating heart for 30 seconds, and (2) to be read a statement about how their decision unreasonably endangers others.

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Barr v. American Association of Political Consultants, Inc.

Court: US Supreme Court

Docket: 19-631

Opinion Date: July 6, 2020

Judge: Brett M. Kavanaugh

Areas of Law: Civil Rights, Communications Law, Constitutional Law

The Telephone Consumer Protection Act of 1991 prohibits almost all robocalls to cell phones, 47 U.S.C. 227(b)(1)(A)(iii). A 2015 amendment created an exception that allows robocalls made solely to collect a debt owed to or guaranteed by the United States, 129 Stat. 588. The Fourth Circuit concluded that the government-debt exception was a content-based speech restriction that could not withstand strict scrutiny and was severable from the robocall restriction. The Supreme Court affirmed. Under the Free Speech Clause, the government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Content-based laws are subject to strict scrutiny. The government-debt exception is content-based because it favors speech made for the purpose of collecting government debt over political and other speech. The exception does not draw distinctions based on speakers, and even if it did, that would not automatically render the distinction content-neutral. The exception focuses on whether the caller is speaking about a particular topic and not simply on whether the caller is engaged in a particular economic activity. While the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech, this law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers. The government has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, issue advocacy, and the like.