Arlington, Va.—Everyone hates robocalls. But last year, the Fourth U.S. Circuit Court of Appeals ruled that Congress’s attempt to regulate robocalls—through the Telephone Consumer Protection Act— violated the First Amendment. Instead of banning all robocalls, Congress had banned robocalls on some topics while allowing robocalls that discussed other topics (like certain kinds of debt collection). So far, so normal: Courts have for decades held that this kind of “content-based” regulation is unconstitutional. But instead of striking down the unconstitutional law, the Fourth Circuit proceeded to rewrite it, striking out the exemption for debt-collection robocalls and ordering the government to enforce the law against all robocallers.

For people who hate robocalls—which is all people—that might seem like a win. But as the Institute for Justice (IJ) argues in an amicus brief filed today with the Supreme Court of the United States, the Fourth Circuit’s ruling threatens to undermine the constitutional rights of all Americans.

“When a court finds that Congress passed an unconstitutional law, it is supposed to declare the law unenforceable,” explained IJ Senior Attorney Paul Sherman, who was counsel of record on the brief. “If Congress wants to fix the constitutional flaws, that’s up to Congress.  The lower court’s ruling here gets that backwards, rewriting the law itself and ordering the executive branch to regulate people that Congress wanted to remain free.”

“This problem extends far beyond robocalls—and even beyond the First Amendment,” said IJ Senior Attorney Robert McNamara. “The Institute for Justice routinely defends people and businesses who are being singled out for unjust treatment by their government. The remedy for these unconstitutional laws is better treatment for our clients, not worse treatment for everyone else.”

“The court’s ruling here transforms the phrase ‘misery loves company’ from an old saying into a rule of constitutional law,” concluded Sherman. “But the point of constitutional rights is to protect liberty, not make sure misery gets sufficiently spread around. The Supreme Court should say as much in this case.”