/>iEditor’s Note: This is your definitive guide to the big SCOTUS oral argument today. For our live and unfiltered thoughts on the argument as it unfolded see here and here. Additionally we will have a VIDEO podcast discussing the SCOTUS argument up this week. Check back for more.
Well folks, today was the big day–oral argument took place in Barr v. AAPC and it did not disappoint.
With the advocates and the Supreme Court Justices –including Ginsburg who called in from a hospital bed– calling into the hearing by phone the stage was set for a robust back-and-forth between the advocates and the Justices, who asked questions in order of seniority.
What emerged over the hour-long argument was the tale of a stark choice: strike down the entirety of a beloved statute (the Telephone Consumer Protection Act) which–at least according to popular fiction– combats robocalls, or sever an unconstitutional exemption to the TCPA and forever set precedent allowing courts to expand unconstitutional restrictions on speech by judicial fiat.
What a choice!
Remarkably there is ZERO case law directly on point here as the advocates both acknowledged in their arguments. That leaves the Supreme Court justices with a blank slate to draw on in formulating the proper dimensions of First Amendment scrutiny where a content-neutral restriction on speech contains an unconstitutional, content-specific exemption. That also makes AAPC v. Barr a huge case–not just for the TCPA, but for First Amendment precedent and our freedom of speech as a whole.
While it is always dangerous to draw conclusions from oral argument–justices notoriously will ask questions that do not ultimately tip their hand– we think the tea leaves here are pretty safe to read to some degree. Here are our TOP 10 takeaways from the big AAPC v. Barr TCPA review.
1. The TCPA’s Government-Backed Debt Exemption is Dead:
If there was any doubt that the government-back debt exemption might be upheld going into the oral argument, the questions of the Justices seem to put those doubts to bed.
The exemption was already limping when, ahead of oral argument, the government conceded away the position that the government-backed debt exemption does NOT survive strict scrutiny. That left it in the difficult position of arguing that the exemption was not content-based–a real stretch.
The Court did not seem impressed. Several of the justices expressed an outright rejection of this concept from the bench, highly suggesting that the government-backed debt exemption is a goner.
Justice Kavanaugh was, perhaps, the most direct of the justices in his remarks, commenting:
I think the government-debt exception is almost certainly content based. You don’t argue that it could satisfy strict scrutiny. Those two things make this a case about severability.
-Justice Kavanaugh commenting at oral argument in AAPC v. Barr, May 6, 2020.
Bye bye government-backed debt exemption.
2. Striking Down the Entire TCPA is Very Much on the Table:
As noted above, the Supreme Court Justices really seem to be struggling with the idea of striking down the entire TCPA. Nonetheless, that appears to be one of the stark and few choices available to SCOTUS in addressing the Respondent’s meritorious First Amendment challenge to the TCPA’s government-backed debt exemption.
Chief Justice Roberts himself set the stage for the possibility that the TCPA might fall in its entirety early in the argument:
I wonder why in that situation the whole statute shouldn’t fall.
-Chief Justice Roberts commenting at oral argument in AAPC v. Barr, May , 2020.
The “situation” the Chief Justice was analyzing was one where an exemption is perfectly legal standing alone but only becomes legal with reference to a restriction (remember when the Archduke analyzed that issue?):
When we sever provisions its because they are illegal. here there is nothing illegal about the government-debt exception…
-Chief Justice Roberts commenting at oral argument in AAPC v. Barr, May 6, 2020.
3. The Justices Seemed Deeply Concerned With Expanding an Unconstitutional Restriction on Speech as a Remedy for a Successful First Amendment Challenge
The most common category of questions posed to both advocates involved the “irony” of expanding an unconstitutional restriction on speech as a remedy to a successful challenger of a speech restriction. As several justices noted, this is not an equal protection case–where severing exemptions can make everyone “equal”–but rather a direct First Amendment challenge where the challenger’s substantive right to speak has been infringed.
Justice Gorsuch framed issue perhaps best of all when he noted the:
[i]rony of a First Amendment challenge leading to the suppression of more speech as a remedy…
-Justice Gorsuch commenting at oral argument in AAPC v. Barr, May 6, 2020.
He also delivered a powerful blow to the idea that severence is the proper remedy to a First Amendment violation by pointing out that the Respondent’s neither sought the remedy of severence nor had standing to seek it, even if they wanted it:
They didn’t seek the relief and they dont have standing to seek that relief [striking the exemption]..should that tell us anything?
-Justice Gorsuch commenting at oral argument in AAPC v. Barr, May 6, 2020.
And Justice Alito was in clear agreement:
In a free speech case what the complaining party is objecting to is a restriction on its speech… [if severance is applied] the complaining party does not get what it wants…
-Justice Alito commenting at oral argument in AAPC v. Barr, May 6, 2020.
4. The Justices Also Seemed Concerned that Striking the Exemption Would Take Away the Rights of Non-Parties to the Case
The Justices also recognized that striking an exemption would result in the rights of non-parties to the case being taken away–a deprivation of both due process and a substantive right to speak. Indeed, Justice Thomas–who is renowned for rarely speaking at oral argument–stated matters bluntly remarking that severing the restriction: “
…seems to be taking speech away from someone who is not in this case.
-Justice Thomas commenting at oral argument in AAPC v. Barr, May 6, 2020.
5. The Supreme Court Justices Are a Big Fan of the TCPA For Some Strange Reason:
If anyone thought the Supreme Court might not like the vague and unwieldy restrictions of the TCPA–guess again. Over and over again the Justices heaped (undeserved?) praise upon the statute, suggesting that it was responsible for preventing unwanted robocalls.
Chief Justice Roberts began the praise when he called the TCPA an “extremely popular law” in response to a comment by Respondent’s counsel that it ought to be struck down.
Then there was this gem:
The TCPA is “one of the more popular laws on the books…want to argue against that common sense?
-Justice Kavanaugh commenting at oral argument in AAPC v. Barr, May 6, 2020.
Eesh.
6. There Was Not Much Discussion of a Middle Ground:
As noted above, the choice before the Supreme Court appears stark–strike down the TCPA entirely or expand a restriction on speech to the assistance of none and the detriment of non-parties.
Indeed, throughout the entire argument there was only ONE reference to a possible middle ground– and it seems an unlikely one. Specifically, Justice Sotomayor suggested that the proper remedy might be to somehow carve out political speech from the reach of the TCPA. Her words:
Why shouldnt we limit any remedy striking down this provision simply to permit the types of calls that your clients make?
Justice Sotomayor commenting at oral argument in AAPC v. Barr, May 6, 2020.
7. The TCPA’s Chances of Survival Were Greatly Helped by the Identity of the Respondent–and the Tactical Choice to Diminish the Value of Privacy in Challenging the Statute:
It is said that bad facts make bad law and this case may end up adding further proof to that adage.
If the TCPA survives SCOTUS review in Barr v. AAPC it will almost certainly be–at least in part–because the Respondent was attempting to defend unsolicited “out of the blue” calls, rather than targeted specific calls to, for instance, customers of a business. But preventing random-fired “out of the blue” calls is precisely what Congress wanted to stop when it enacted the TCPA in the first place.
Whereas a business making targeted calls could easily argue that the TCPA is overly broad as applied to them–again it was designed to prevent the nuisance and intrusion of random-fired calls not expected contacts from businesses– the Petitioner in this suit (apparently) did not feel comfortable making a similar over breadth challenge. Instead its counsel focused– again and again– on the government lacking a compelling interest in protecting privacy. At one point counsel argued that the interest in protecting privacy is just “not strong enough” to justify the TCPA’s restrictions.
Pause.
You read that right. Respondent’s primary argument as to why the TCPA does not survive First Amendment review is because privacy is not really that big of a deal anyway.
Eesh. I mean. Come on.
But giving the argument its due, Respondent contends that Congress showed it did not really care about privacy in enacting the TCPA when it amended the statute in 2015 to exalt the collection of money over protecting consumers. If privacy was all that “compelling” Congress would never have made that choice. I mean, right?
Hmmm. I don’t know. Probably would have been better if the Respondent could have faithfully argued that the TCPA’s vague and unwieldy ATDS restriction covers way more speech than necessary to accomplish the statute’s stated objective, a point Justice Ginsburg herself recognized:
What congress wanted to stop were out of the blue calls…. [debt collection] calls are not out of the blue, they are simply a reminder..
-Justice Ginsburg commenting at oral argument in AAPC v. Barr, May 6, 2020.
Ugh. What might have been.
8. The Government Was Very Concerned that the Supreme Court Might Focus Scrutiny on the ATDS Restriction and not the Exemption
The Respondent was not alone in making some interesting tactical choices. The DOJ’s SG–arguing in support of the TCPA’s constitutionality as Petitioner–kept answering the question that no one was asking: does the TCPA’s ATDS definition survive First Amendment review?
Over and over again throughout the argument and in discussions with virtually every justice, the Petitioner’s counsel hammered that the ATDS restriction survives the appropriate level of scrutiny. This is true although there was barely a whisper from the justices on the issue.
Without a doubt both the Respondent’s brief and TCPAWorld.com focused much fire on the ATDS restriction and the need to apply scrutiny to the restriction rather than the exemption, but the Petitioner’s focus on this issue–which seemed a phantom before a court obsessed with severability– seemed an odd choice. (It may, however, prove to have been tactically brilliant if–for instance–the Court elects to sever and still reviews the TCPA under intermediate scrutiny.)
9. This is a True Issue of First Impression–Which Means the Ruling Could Have Huge Impact on our Freedom of Speech Moving Forward
Throughout the oral argument multiple justices and the advocates themselves remarked that there was really no direct precedent available to guide the issue of severability. As we have written repeatedly, never before has the Supreme Court struck an exemption in order to expand a statute as a remedy to a successful First Amendment challenge.
As Justice Alito framed the issue–after calling it “fascinating”–the question is:
what is best precedent for application of severability analysis in case like this where arguably a regulation of speech is unconstitutional only because it contains a content based exception.
–Justice Alito commenting at oral argument in AAPC v. Barr, May 6, 2020.
As already noted above, the Supreme Court’s take on this issue will set incredibly-important precedent that will determine the way lower courts are to apply First Amendment principles for decades to come.
10. There Was Very Little Discussion of the ATDS Definition– But that Doesn’t Mean it Won’t Get Resolved on This Appeal
One of the key things we were looking for is whether and to what degree the Supreme Court justices were focused on applying scrutiny to the ATDS restriction. Based on the questions of the justices there appears to be very little focus on that issue in this appeal.
Nonetheless, as the Court grapples with the difficult and stark choice presented by this appeal, the common sense solution available to it may still find its way into a majority opinion: apply strict scrutiny to the TCPA’s ATDS restriction, read it narrowly, and uphold the statute intact.
That was my prediction going in to oral argument and–although I concede the likelihood of that prediction coming true took a hit today–it still seems the easiest and most logical resolution to the difficult questions posed by AAPC v. Barr.
