Written by Artin Betpera and Nikku Khalifian
In July 2020, the Supreme Court held in Barr v. Am. Ass’n Policitical Consultants, 140 S. Ct. 2335 (2020) that the TCPA’s government debt exception passed by Congress in 2015 rendered the statute an unconstitutional content-based restriction on free speech in violation of the First Amendment. To cure this constitutional infirmity, the Court severed the government debt exception from the TCPA. The Supreme Court’s holding in Barr left an open question over the validity of TCPA claims that had accrued between the time the government debt exception was enacted, and when it was severed from the statute (i.e. during the time the TCPA was operating as an impermissible content-based restriction on free speech). While severance may have prospectively solved the constitutional problem, the ability of this remedy to retrospectively cure the TCPA’s constitutional infirmity is less clear.
