• by Wendy Davis , Staff Writer @wendyndavis, May 7, 2020

Facebook, the campaign to elect Donald Trump and Crunch Fitness are among countless marketers to face lawsuits alleging they violated a law prohibiting spammy text-message campaigns.

Some of the text-message senders have settled, while others -- including Facebook -- are fighting the claims. Now, there is a chance that the law at the center of those cases could be invalidated.

This week, the Supreme Court heard arguments about whether to strike down the Telephone Consumer Protection Act, a 1991 law that prohibits companies from robocalling cell phones without consumers' consent.

The measure, which was later expanded to prohibit robotexting, provides for damages ranging from $500 to $1,500 per violation.

The case before the Supreme Court this week stemmed from a challenge to the law by various organizations of political consultants, which contend that a 2015 amendment to the law invalidated the entire measure. That amendment created an exemption for robotexts and robocalls aimed at collecting debts owed to the government.

Soon after Congress passed the amendment the American Association of Political Consultants and other groups -- including the Democratic Party of Oregon, Public Policy Polling, Tea Party Forward and Washington State Democratic Central Committee -- sued to scrap the entire law.

The groups argue that the debt-collection exemption was based on content, and therefore violated the First Amendment, which generally prohibits the government from imposing content-based restrictions on speech.

The 4th Circuit Court of Appeals agreed with the political consultants that the exemption was unconstitutional, but said the remedy was to sever that exemption -- effectively invalidating the 2015 amendment -- while leaving the rest of the law in place.

The American Association of Political Consultants and others then appealed to the Supreme Court, where the groups argued that the entire Telephone Consumer Protection Act should be struck down.

Facebook, which is facing several pending lawsuits accusing it of violating the robotexting law, weighed in on the side of the political consultants. The company argued in a friend-of-the-court brief that the 2015 amendment shows the restriction on robotexting “is an unconstitutional abridgement of speech.”

On Wednesday, the judges publicly wrestled with questions posed by the case. 

Justice Clarence Thomas said early on that striking down the debt-collection exception, while leaving the rest of the law in place, wouldn't help the political consultants who brought the lawsuit.

Justice Ruth Bader Ginsburg picked up on that point, stating that merely striking down the 2015 amendment “will leave the political groups with no incentive” to challenge laws that may violate the First Amendment.

At the same time, Justice Neil Gorsuch added that if the 2015 amendment violates the First Amemdnent, the “intuitive” approach would be to strike down that amendment, and not the entire law.

Chief Justice John Roberts appeared to agree. He said it seemed “obvious” that Congress would rather repeal the 2015 amendment than the entire Telephone Consumer Protection Act.

“It's an extremely popular law,” Roberts said. “Nobody wants to get robocalls on their cell phone.”

A decision is expected later this year.