It seems that the oral argument in Barr, Attorney General v. American Association of Political Consultants, Inc. may become better known for the toilet flush that could be heard in the course of the argument, rather than the significance of the constitutional issues debated.  The now-infamous supreme flush was quickly noted on several Twitter feeds, and was featured on prominent news outlets and aggregation sites mere minutes after it happened.  These are indeed strange times.  But all humor aside, this unusual occurrence highlights the importance of providing one another with grace, as even the highest court in the land is not immune from the foibles that can result from remote working.   

Yesterday, the Supreme Court convened for the second-ever day of telephonic oral arguments.  On its calendar was Barr v. AAPC, which was an appeal from a Fourth Circuit case involving the constitutionality of the Telephone Consumer Protection Act.  The case involved two questions arising out of the exemption to the TCPA’s autodialer restriction carved out by Congress in 2015 for calls to collect upon debt owed to, or backed by the United States Government.  Those questions are: (1) whether the Government debt exemption renders the TCPA an unconstitutional content-based restriction on free speech in violation of the First Amendment; and (2) if so, whether the proper remedy is to sever the exemption from the statute, or strike down the TCPA’s autodialer restriction in its entirety.

It is not an exaggeration to say that the fate of the TCPA hangs in the balance, and the questions and comments from the Justices during oral argument reflect that invalidation of the autodialer restriction is a tangible possibility.  But at the same time, the Justices struggled with the practical result of striking down a “popular” law based upon constitutional problems caused by an exemption added over 20 years after the law’s passage.

Justices Expressed Skepticism Over Severance Remedy During Petitioner’s Argument

Out of the gates during the Petitioner’s argument, the Justices were focused on the severance remedy.  Chief Justice Roberts commented on the appropriateness of severance as a remedy, given that when courts sever provisions, it is because the provisions themselves are illegal; not because when combined with a statute, the provision makes the statute unconstitutional as a whole.  Justice Thomas described the severance remedy as “odd,” while Justice Ginsburg expressed skepticism over its applicability.  Justice Sotomayor noted the “difficulty” of the issue, and the absence of anything in the record to inform how large or small of a segment of speech the exemption truly impacted. 

Several times during oral argument, Petitioner’s counsel tried to focus the Justices on how the “temporal sequence” of the TCPA supported severance, casting TCPA’s autodialer restriction and the Government debt exemptions as two separate public laws, enacted at two different times—and only one of which introduced a constitutional infirmity, versus the earlier enacted law which was “thoroughly constitutional.”

Lastly, many of the justices questioned the appropriateness of severance in light of the fact that neither party sought this remedy in the underlying suit, and the case did not involve calls that were implicated by the exemption.  For example, Justice Thomas noted that the severance remedy gave nothing to Respondent, and “seems to be taking speech actually away from someone who’s not in this case.”

Majority of Justices Appeared to Agree That Government Debt Exemption Renders TCPA a Content-Based Restriction on Free Speech Subject to Strict Scrutiny

The fact that the Justices honed in on severance right off the bat suggests that the majority may consider the Government debt exemption to render the TCPA an unconstitutional content-based restriction on free speech (and the Government for its part did not attempt to argue that the statute would survive strict scrutiny if it applied).  Indeed, a significant portion of oral argument was focused on the appropriateness of severance, rather than this threshold issue. 

Justice Bryer was the sole Justice whose questioning tended to focus on the issue of whether the Government debt exemption rendered the TCPA a content-based restriction, and the broader question of what exactly constitutes a content-based restriction.  Justice Ginsburg also touched upon this threshold issue, commenting that the restriction may be viewed as a “manner” not a “content” based restriction, though on the other hand Justice Ginsburg also stated that she “do[esn’t] see how you can escape [the] content-based distinction.”  Other Justices were likewise direct in expressing their opinion that the exemption was content-based.  For example, Justice Kavanaugh stated that the exemption was “almost certainly content based, at least for me.”

Justices Appeared Troubled at Notion of Striking Down “Popular” Law in Its Entirety

During Respondent’s argument, Chief Justice Roberts led off by expressing his pragmatic take on the issue, stating that the Petitioner had made a “strong point” that the TCPA was on the books and valid for 25 years, and the “problem we have today” was only “created” after Congress added a “discreet” exception in 2015.  Commenting on Congressional intent—which informs the analysis of severability—Justice Roberts stated that the “obvious” way Congress would resolve the issue was to get rid of the exemption.  Justice Roberts also described the TCPA as “extremely popular” and rejected the notion that Congress would endorse striking down the statute’s autodialer restriction in its entirety, quipping that in so doing Congress would have to be “anxious to be more unpopular,” than they would otherwise be.  Justice Kavanaugh similarly questioned the justification for striking down a restriction that has been “on the books” for over 30 years, has otherwise been perceived as constitutional, and is “very popular” with the public.

Similar thoughts were expressed by Justice Thomas, who noted the “asymmetry” of striking down the autodialer restriction since “the constitutional problem is the exception,” versus the autodialer restriction itself.  Justice Sotomayor questioned why the Court would strike down an entire statute unless all restrictions on robocalls were in some way unconstitutional. 

Justices Gorsuch and Kavanaugh both framed the question as whether the remedy is to “level up, or level down,” the restrictions on speech.  Justice Gorsuch suggested that severance was the “intuiti[ve]” remedy.  Justice Kavanaugh meanwhile noted there was no precedent on severance in either direction when the First Amendment problem is created by an exception to the ban on speech, rather than the underlying ban itself. 

Concluding Thoughts

If one were to take the Justice’s questions and comments during the Petitioner’s arguments in isolation, it would seem that the TCPA’s autodialer restriction was almost certainly doomed.  However, as arguments wore on, many Justices expressed what felt like stronger, more pragmatically-based sentiments against striking down the TCPA’s autodialer restriction in its entirety. 

In addition, there also appeared to be a consensus amongst a majority of the Justices that the Government debt exemption rendered the TCPA a content-based restriction on free speech.  Hence, it is quite possible that the Court’s opinion will ultimately come down to appropriateness of severance as a remedy.  And between the comments of the Justices concerning the “popularity” of the TCPA, and the relative novelty of the issue, the Court may very well find a way to render an opinion that leaves the TCPA’s autodialer restriction intact.