Argument analysis: Justices skeptical of robocall law, but appear to want to keep it

The Supreme Court heard oral argument yesterday in Barr v. American Association of Political Consultants. The case is one of a handful this spring that, because of the pandemic, the court is hearing by telephone with the public listening in.

That’s perhaps fitting because the case is itself about phone calls—cellphone robocalls in particular.

The question before the justices yesterday was whether the 1991 Telephone Consumer Protection Act’s ban on robocalls to cellphones, or an exception added to it in 2015, violates the First Amendment’s free speech clause. And, if so, whether the proper remedy is to sever the 2015 exception—which allows robocalls to collect government-backed debts— from the act and strike down that provision, or to invalidate the entire robocall ban.

After over an hour of argument, most justices appeared convinced that the law was “content based”—a First Amendment term of art that refers to a law that applies differently depending on the content of the expression and is strictly scrutinized by courts—and likely unconstitutional. But the justices also appeared about as thrilled as the rest of us at the prospect of endless robocalls to our cellphones. Their questions largely focused on severability, suggesting that the harder question is not whether the law is unconstitutional, but what the correct remedy is.

The outcome of the case could have a significant impact on political advertising in the run-up to the 2020 election. Depending on how the justices write the opinion, the case could also have ripple effects well beyond robocalls, including on the constitutional rules surrounding commercial advertising and economic regulation. It may also bear on the proper remedy for laws found unconstitutional under the First Amendment on the ground that they are content based.

With thousands tuning in, Chief Justice John Roberts called the case and reminded everyone, perhaps with some humor, to turn off their cellphones.

Arguing on behalf of the government, long-time Deputy Solicitor General Malcolm Stewart opened by noting the conflict between the parties about whether the challenge is to the 2015 government-debt exception or the cellphone robocall ban itself. Either way you look at the case, the consultants lose, he began.

Stewart did not make much headway with that tack. The chief justice probed the government’s central argument that the robocall ban applies based on the economic relationship of the parties, not the content of a call. He said, “I don’t see how that gets you out of the content category” under Reed v. Town of Gilbert. (Reed issued an arguably new standard for when a law is content based. To prevail, the government needs the court to adopt a narrow reading of Reed.)

Stewart distinguished Reed as involving a law with myriad content-based distinctions, whereas the TCPA applies the same rule to the vast majority of robocalls. That response didn’t appear to satisfy the chief justice, who quickly turned—as many justices did—to the question of severability.

Normally, the chief justice noted, the court strikes down a provision when it is illegal. But the 2015 exception to the TCPA’s robocall ban isn’t itself illegal; it renders the whole law vulnerable. In that case, why shouldn’t the court strike down the entire law? Stewart offered two responses. First, the robocall ban was passed in 1991 and the exception was added much later. Second, the touchstone of severability is congressional intent. It would make the tail wag the dog to prioritize the later-added government-debt exception “over Congress’s desire to protect all consumers from all other automated calls.” Later, in response to Justice Brett Kavanaugh, Stewart added a third argument: There is a severability clause in the act that instructs that if one clause is found to be unconstitutional, only it should be cut.

Up next, Justice Clarence Thomas, too, focused on severability. If we strike down only the exception, he said, the consultants don’t get any more speech; rather, someone who is not a party to the case gets less. Stewart responded that severability focuses on congressional intent. It is not unusual for a plaintiff to win on one but not the other of two issues that are essential to the sought-after result. Thomas additionally questioned the government’s interest in cellphone privacy. Stewart responded practically: Cell phones are ubiquitous and people carry their phones with them all the time. Robocalls to cell phones would not only disturb people at home but also at work or anywhere.

Justice Ruth Bader Ginsburg, calling in from Johns Hopkins Hospital the morning after being hospitalized for a minor gallbladder treatment, also appeared to find the law content-based. “I don’t see how you can escape a content-based distinction,” she began. She, too, turned to severability. Why bother challenging a content-based law if you don’t get meaningful relief? she pressed.

Justices Samuel Alito and Neil Gorsuch sounded related tunes. Both questioned Stewart on severability. In response, Stewart drew a parallel between the court’s equal protection jurisprudence, in which a plaintiff may not get any remedy if the court “levels down” by denying an unequally distributed benefit to everyone rather than “leveling up” by extending the benefit beyond the favored group. Both justices appeared skeptical that the same rule should apply in First Amendment cases.

Justice Elena Kagan, by contrast, pushed Stewart on whether the court should view the case as one about the robocall ban, which is the only thing prohibiting speech, or about the 2015 exception, which is the only thing that creates a constitutional issue. Kavanaugh pursued a similar line of questioning. He noted that because, in his view, the exception is content based and the government maintains that the ban, but not the exception, can survive strict scrutiny, “this for me at least is case about severability and leveling up or leveling down.” He wondered how the court should consider evidence that the robocall ban is popular.

Justice Stephen Breyer asked a “somewhat philosophical question.” Given the pervasiveness of speech and content distinctions, he asked, how should the court distinguish between economic regulation and content discrimination for First Amendment purposes? Breyer’s question gets at how to interpret Reed, parts of which could be read as inconsistent with other parts of First Amendment law. Under long-standing law, both commercial speech and economic regulation may be content based without triggering strict scrutiny under the First Amendment. A law, for example, may treat optometrists and ophthalmologists (or government-backed versus private-backed debts) differently, or it may regulate the advertising of cigarettes, say, but not ads for toys, without triggering strict scrutiny. Did Reed change that? Stewart responded, essentially “no.” If you can tell from the content of the message whether a law applies, it’s almost certainly content based. The TCPA, he argued, is not. If the law is limited to speech “used in a particular economic activity,” that does not trigger strict scrutiny.

Representing political consultants challenging the law, Roman Martinez opened by emphasizing that his clients want to engage in political speech at the core of the First Amendment and that the TCPA bars them from using some of the most effective communications tools available: automated text messages and calls to cell phones. The TCPA arbitrarily favors certain debt-collecting calls—the sort of calls consumers hate the most—over core political speech. The exception undermines the government’s interest in privacy, he argued, and the court cannot fix First Amendment violations by making more speech illegal.

Again, the court focused principally on severability. The chief captured the spirit of that questioning: “Congress had this law for 25 years and then” added this “pretty discrete exception.” “It seems pretty obvious that the way they would solve it is get rid of this exception. It’s an extremely popular law. Nobody wants to get robocalls on their cell phone.”

Martinez responded that the exception makes the ban itself unconstitutional by undermining the government’s interest in privacy. If government-debt calls are allowed, there must not be such a great privacy interest, he argued. Because the ban is unconstitutional, the court shouldn’t reach the question of severability.

Both Thomas and Kavanaugh questioned Martinez on whether the ban would be constitutional without the 2015 exception. Martinez responded that the statute would no longer be content based, so less stringent intermediate scrutiny would apply. But even then, he contended, the law would fail because Congress allows political robocalls to home phones, indicating that there is no great privacy interest in political robocalls to cellphones.

Alito pressed Martinez to go farther, asking whether a ban with an exception for a robocall on July 4 saying “Happy birthday, America” would be unconstitutional. Martinez responded that if the exception were big enough to undermine the statute, the entire ban should fall. Alito worried that this would make congressional intent “irrelevant.”

In response to Justice Sonia Sotomayor, Martinez explained that many robocall bans would be constitutional, including a ban on commercial telemarketing calls. Why not then limit the remedy here to the type of political speech the consultants want to engage in? she questioned. The best thing to do, Martinez responded, would be to strike down the entire statute and let Congress pass a new law.

Ginsburg, Breyer and Kagan took a slightly different approach. Ginsburg asked whether the law shouldn’t be understood as a regulation of the manner of calling—the use of a certain technology—not of a type of message. And Breyer, following up on his conversation with Stewart, asked Martinez to ignore Reed and locate the line between when something is an economic regulation or is content based. Martinez responded essentially as Stewart had, that commercial regulations of speech receive at most intermediate scrutiny, regardless of whether they are content based.

Kagan wondered why strict scrutiny should apply when the law “doesn’t raise any real concerns about government censorship, about the suppression of ideas, about a distorted marketplace of ideas.” Why is strict scrutiny appropriate when “what the legislation is trying to get at is an economic relationship?” Martinez responded that the test for content-based restrictions in Reed makes it harder for Congress to enact broad speech bans while carving out special exemptions for favored groups.

Kavanaugh closed the questioning by pointing Martinez to evidence that in “the real world,” “this is one of the more popular laws on the books because people don’t like cell phone robocalls. That seems just common sense.” He pressed Martinez, “Do you want to argue against that common sense?” The law may be popular, Martinez responded, but the First Amendment protects not just speech people like, but speech that is offensive or annoying.

In his rebuttal, Stewart focused on Martinez’s concession that if the law were a restriction on calls to collect government-backed debt, it would only receive intermediate scrutiny. Here, the consultants want the law reviewed more stringently because it exempts that speech from regulation, but this position contradicts “the usual understanding that the First Amendment exists to foster speech.”

Based on the justices’ questions, it seems that they are likely to find the law content based, but it’s less clear whether they agree on how to remedy that problem. Because of COVID-19 and the postponement of the March and April oral arguments, we do not know whether the justices will issue their decision by the end of June as usual.