Constitutional challenges to the Telephone Consumer Protection Act may be coming to a head. In a series of rulings this year, courts around the country have struck down an exception to the TCPA’s prohibition against auto-dialed calls to cell phones. Several litigants have filed petitions asking the United States Supreme Court to review these decisions.

The provision in question, often referred to as the “government-debt exception,” allows certain exceptions to the TCPA for calls made by an automatic telephone dialing system “solely to collect a debt owed to or guaranteed by the United States.” It is one of few exceptions (the other being emergency notifications) to the statute’s prohibition against using an ATDS to place calls to a cell phone without the called party’s consent.

In several recent rulings, courts have struck down the government-debt exception as a content-based restriction on speech, which violates the First Amendment. First the Fourth Circuit, then the Ninth Circuit, ruled that the provision could not survive strict scrutiny review, which allows restricting speech based on its communicative content only in furtherance of a compelling government interest, and only if the restriction is narrowly tailored to support that interest.

Challengers to the government-debt exception, like Facebook in the Ninth Circuit case Duguid v. Facebook and American Association of Political Consultants in the Fourth Circuit case AAPC v. FCC, argue that the exception is content-based because it allows for automatically-dialed calls to collect on government-backed debt, but not other non-emergency calls. This distinction, they assert, is based purely on the communicative content of the call and thus must be evaluated under strict scrutiny. To illustrate, they point out a hypothetical example: A debt collector could use an ATDS to call an individual to ask for payment of a government-backed debt, then call back a second time to ask for repayment of a private debt. Under the current state of the law, the first call would be legal but the second call would not. This, they say, shows that the exception is content-based.

The United States Government, as defendant in AAPC and as an intervenor in Duguid, counters that the distinction is not based on the content of the call but on the existence of a specific economic relationship with the federal government (such as whether the recipient owes a debt to, or that is guaranteed by, the federal government). In both cases, the Courts of Appeals rejected the Government’s argument and found the exception content-based on its face.

As a result, the courts had to determine if the government-debt exception furthered a compelling government interest via a narrowly-tailored means. This is where the arguments become a bit confusing. Until now, courts have found that the TCPA furthers a compelling interest in “protecting the well-being, tranquility, and privacy of the individual’s residence.” Congress passed the ban, after all, to stop unwanted callers from disturbing family dinners with endless robo-call solicitations. How does an exception which allows a large number of calls to be made further an interest in privacy? Facebook and the AAPC say that it doesn’t, so it must be struck down. The Fourth and Ninth circuits both agreed and applied the severability clause written into the TCPA to invalidate the exception while leaving the rest of the TCPA intact.

This is where the cases get interesting, because the result of the appellate courts’ opinions is greater restriction on speech – the exact opposite of the expected outcome in a First Amendment challenge to a statute. Now the supporters of the government-debt exception and the TCPA more broadly (the government, consumer protection groups, and the plaintiffs who bring suits under the TCPA in the first place) want to reverse the appellate rulings and put the exception back in place, while the exception’s challengers (Facebook, the AAPC, and the Chamber of Commerce, among others) also want the appellate court decisions overturned, but because they think the entire TCPA must be struck down.

The challengers’ argument is not as far-fetched as it might sound. The unique aspect of this litigation is that the parties are arguing over a content-based exception to an otherwise content-neutral restriction on speech. In similar circumstances in the past, the Supreme Court has struck down entire speech-limiting statutes when confronted with a challenge to a content-based exception, such as in Ark. Writer’s Project, Inc. v. Ragland; Police Dep’t of the City of Chicago v. Mosley; and Grayned v. City of Rockford.

Although there is no circuit split on the question of the government-debt exception, the Government’s petition in AAPC asks the Supreme Court to take up the issue because several courts have invalidated a provision of a federal statute. Under such circumstances, it is not uncommon for the Supreme Court to weigh in and resolve the question for the sake of clarity in the interpretation of federal law. The Government asserts that AAPC is a better vehicle to resolve this particular constitutional challenge, because the Duguid case could be decided on other grounds and avoid the constitutional issue. Only time will tell how the high Court will handle the overlapping questions.