tv Supreme Court Oral Argument in Barr v. American Association of Political... CSPAN May 10, 2020 10:05am-11:19am EDT
that expired march 15. the households a pro forma session tuesday and no votes planned but an official schedule has not yet been announced. watch live coverage of congress as the senate returns at 3:00 p.m. eastern monday on c-span 2. for the third day this week the supreme court heard oral argument via teleconference, barr versus american association of political consultants challenges a federal exemption that allows automated calls to cell phones in order to collect debt on behalf of the u.s. government. >> we'll hear an argument next in case 19-631 attorney general barr versus the american association of political consultants. before we get started i'd like to remind everyone to turn their cell phones off. mr. stewart?
>> thank you, mr. chief justice and may it please the court. in 1991, congress enacted the tcpa's basic restriction on the placement of automated calls to cell phones. in the years that followed lower courts consistently upheld the constitutionality of that restriction as a contact neutral restriction on the use of calling technologies consumers found particularly intrusive and annoying and the congress' debt exception in 2015 did not introduce any constitution infirmity into the statutory scheme and that exception is limit to a narrow category of calls that intrude less on consumer privacy than the typical automated call and that serve an important counterveiling interest in protecting the federal fisk. there's been a good deal back and forth in the briefs whether sponedent's challenge is properly viewed as one to the exception or to the general automated call restriction. and i think in circumstances like this there's not a right way or wrong way, not a right
or wrong challenge to bring, they are two distinct analytical ways of challenging a law that includes a basic restriction subject to exceptions. here we think that both challenges could have been brought but that both would fail but i'd like to focus first on the challenge that rerespondent is asserting that these are the challenge 5 respondents are asking the court to focus on and that is the challenge to the underlying automated call restriction and respondent's basic theory is the government debt exception taking in combination with other aspects of the statutory scheme prevents the automated call restriction of performing its intended consumer protection of function, renders it insufficiently efficacious to be upheld under the first amendment and think that's wrong. if you look at the statute, the only other statutory exceptions to the automated call restriction are those for emergency calls and calls made
with the prior express consent of the recipient and respondents have not contended that either of those raises a first amendment problem or cast out on the efficacy of the underlying restriction. >> mr. stewart, one of your basic points to avoid strict scrutiny under the first amendment is that you're not really looking at the content of the communication in this case but rather it's more properly viewed as part of an economic relationship. i don't see how that gets you out of the content category. you still have to look carefullyly at what's being said before you can decide whether the phone call is covered by the provision or not. i think that's the clear holding of our decision in the reed case.
mr. stewart: let me address reed first and foremost in the court's analysis of reed after the statement of the case. the court described content based laws as, quote, those that target speech based on its communicative content and if we're focusing now on the automated call restriction, the provision of the statute that respondents say is the focus of their constitutional challenge, it's impossible to say that that restriction targets respondents calls based on their communicative content. the situation was different in reed and in reed the town had 23 different categories of signs in its sign code, a multtute of different treatments of the different categories and one of them was temporary directional signs and that was the category of signs the plaintiffs in the case wanted to put up. and you could tell exclusively from the content of the sign which category it fell in to and which restrictions apply.
and in that circumstances substance it was natural for the plaintiffs to argue and the courts to hold they had been targeted based on the communicative content of their signs. here respondents haven't been targeted in any meaningful sense. their political communications are subject to the same restrictions that apply to the vast, vast majority of automated calls. the facts are very -- >> i'd like to jump ahead and get to the severance, if you say the exception for government debt is found to be problematic, you should sever that and keep the rest of the statute. but when we sever provisions it's because they are illegal. here there's nothing illegal about the government's debt exception, it's just when combined with the rest of the statute makes the whole statute vulnerable. i wonder why in that situation the whole statute shouldn't fall. mr. stewart: the two things i would say is first it's
important to look at the temporal sequence that produced current state of affairs and that is the basic restriction was enacted in 1991 and the government debt exception was enacted in a separate public law in 2015. justice roberts: i've got that. what's your second point? mr. stewart: the second point is the ultimate exception of receiverability is one of congressional intent, which result would congress have preferred and for purposes of determining what congress would likely have preferred, it seems really like the tail wagging we will o say that treat congress' desire to free collectors of government backed debts of these restrictions remember as taking preeminence over congress' desire to protect all consumers from all other automated calls. we think congress -- justice roberts. justice thomas. justice thomas: thank you, justice thomas. it seems odd you would suggest we sever the exception but
re, it doesn't seem this remedy doesn't seem to give anything to respondent and doesn't add any more speech to the respondent and seems to be taking speech actually away from someone not in this case. mr. stewart: that may be true but the court's task in determining the appropriate remedy is to kind of follow established principles of severability, to look indicia to congress' likely intent and if the result is that the plaintiff at the end of the day doesn't get the practical result it was looking for, at's not a reason to kind of retrigger the severability analysis. it's often the case a plaintiff can achieve a practical victory only by prevailing on both of two legal questions. and sometimes it is a question both of the merits of the claim and of the appropriate remedy
and if the court holds that yes, you are right, you've established the existence of a violation but the statute read properly simply doesn't argue the remedy you seek, that's one of the chances that the plaintiff takes when it pursues a claim that depends on prevailing on two separate legal propositions, that the plaintiff persuaded the court to one legal proposition, didn't persuade the court to a second proposition that was really essential to getting the practical result it wanted. that's not an unusual situation in the law. justice thomas: i'd like to shift gears and focus and just ask the question about your strict scrutiny analysis. you seem to focus on the interest that the individual has in privacy of the cell phone. but it would seem to me that that privacy interest is actually not nearly as great as the person would have in the land line phone at home or even
in someone knocking on their front door. mr. stewart: i think at the time the statute was enacted, cell phones were obviously a lot less prevalent and may have been used on rare occasions and most people didn't own them. phones are cell ubiquitous and an intrigual part of daily life for most individuals and really the privacy interest is greater than in the residential land line. yes, if the phone rings at your home and you happen to be there, it may be an intrusion but most people, mostly all people when they're at home will have their cell phones with them. so unwanted calls to cell phones will pose the same threat to residential privacy that unwanted calls to land lines would. but in addition, people for the most part carry their cell phones with them at all times and so the effect of automated calls through cell phone is not just potentially to disturb residential privacy but
potentially to disturb them when they're at work, when they're on social occasions, when for whatever reason they might want to be open to calls from friends or calls from amily members but won't -- justice roberts. justice ginsburg. justice ginsburg: i don't see how you can escape content based distinction. the content is a debt owed to the government and that's the content of the government, you owe the government a student loan or whatever, then the call is ok. but if the message is please contribute to our political organization, it's banned, so it's based on what the message is. pay what you owe the government for and contribute to our political organization.
mr. stewart: as we said in our briefs, it is true that often a court in determining whether the government debt exception applied would look in part to the content of the call but you wouldn't be looking exclusively to the content of the call. for instance, determination whether the particular debt that was sought to be collected was in fact owed to or guaranteed by the federal government would have nothing to do with the call's content, it would depend on the financial relationship between the debtor and the federal government. and it is characteristic in the legal culture that congress would enact statutes that regulate communications made in particular field of economic activity so you have laws that regulate what can be said or what disclosures have to be made in connection with the sale of security and they're subject to first amendment challenge, plaintiffs can argue that particular restrictions go too far but nobody thinks of
walls like that as being especially suspect because they are limited to the field of securities, even though to determine whether a particular communication was covered, a court would need to look in part at the content of the communication. justice ginsburg: switching to the severance, we're told that if we strike only the government debt exception, that will leave the political groups with no incentive at all to assert their first amendment claim, plus they're going to ose at the end of the day. so why should they bother challenging -- why should they boughter with a first amendment claim? when it will be unsuccessful at the severance stage? mr. stewart: a couple responses to that. the first is, as i was indicating earlier, the plaintiffs did argue and were entitled to argue that the
appropriate remedy if there was a constitutional violation to strike down the whole restriction but they didn't persuade the court of appeals on that question. and if the application of ordinary severance principles would confirm that result, then the court's duty is to follow those principles even though it leaves this plaintiff without a remedy. justice berts: breyer? justice breyer: your last statement with justice ginsburg leads me to ask somewhat a philosophical question which you need not answer if you don't want to. but my question is what is content discrimination? all human life is carried on through speech. all government regulation is carried on through speech. every single statute book is filled with all kinds of content discrimination. the s.e.c. and every agency deals with nothing but but do
their rules apply to, the exceptions, etc. so i always thought that was justice brandizes the third category as far as the first amendment was concerned or at least most of it was. so how in your view do you distinguish what is in that third category, look to see if it's reasonable, what is in the first category never uphold it almost no matter what,, how, what's your way of doing it? mr. stewart: i don't think we have a succinct test we capture all cases but remind the court of certain guide posts that are set up. one is it you can tell exclusively from the content of a message whether a particular law applies, then that's very likely or almost certain to be content based. and in reed it refers to those content laws that target speech based on the communicative
content and even if you thought the government content was subject based it wouldn't follow the automated call restriction is conextent based, the automated call restriction doesn't target speech because of its content but treats the vast majority of speech the same and exempts from regulation a very small category of speech. the third thing i would say is whatever the right answer is, it can't be whatever peach is the mere pact a law is limited to speech that is used in a particular economic activity, that limitation cannot by itself be sufficient to render the law of content based or at least to subject it to unique scrutiny because that principle would enact a vast array of laws that states and legislatures have enacted to regulate the complete spheres of economic activity. justice breyer: thanks very much. justice roberts: judge alito?
justice alito: the severability law in this case is fascinating. i wouldn't say you think we need to get to that but assuming for the sake of argument that we do get to that question, what is your best precedent for the application analysis in a ty case like this where arguably a is lation of speech unconstitutional because it contains a content base exception? mr. stewart: i don't think either side has a precedent specifically in the first amendment area where the court discussed whether severability principles should apply and if so how do they apply. i think our best precedence are cases like more or less-santana and frost, yes, they were equal
protection cases but said in deciding whether an exception would be severed or the underlying rule should be struck down, we look at things like the temporal sequence in which the laws were enacted, whether the exception was enacted later in the day, the agree of congress' commitment to the basic rule and i think those are good analogies here. where the graveman of the first amendment claim is that this person's speech is being treated differently from another person's speech. justice alito: what is your response to the counterargument in the equal protection case in which the complaining party is objecting to is unequal treatment, so whether the remedy levels up or down, the complaining party gets what it wants, namely equal treatment, whereas in a free speech case what the complaining party is objecting to is a restriction on its speech and if we apply the severability analysis in
that situation the complaining party does not get what it wants, which is the ability to speak without restriction. mr. stewart: i think with respect that conflates what the complaining party wants with what is swilingted to. phones, in more or less-santana there was no doubt what the complaining party wanted was citizenship, it wanted to be able to invoke -- the plaintiff wanted to be able to invokes on behalf of his father the constitutional right to equal treatment for unwed fathers and unwed mothers. and the grafaman of his claim i have equal entitlement to equal treatment but what in practical matter he wanted was citizenship and didn't get it as a result of the court's severability holding and the court said we apply established principles of severability in order to determine what we think congress would have intended and the consequence is that even though you have
established a right -- a violation of the right to equal treatment, you are not entitled to the practical result you were seeking. justice roberts: thank you, counsel. justice society a highor? justice sotomayor: what i was worried about had been touched upon justice alito. assume that this low is content based, i don't see in the record any evidence by you of how small this exception is. the other size says that most of the complaints to the f.t.c. are because of debt collection. but there are no statistics about how big or small debt collection is with respect to robocalls generally or with respect to consumer collection.
and even if you could show me that they were small part of the intrusions on people, they certainly are a big emotional complaint because they generate the most ire by citizens. but putting that aside, you haven't shown me why government backed debt calls are any different than commercial calls, private commercial calls for debt. in both situations, the debtor would expect the call about debt stale, that's an interest of the government's claim but, you know, so what? both debtors. so there is a discrimination to this case that does raise the equal protection ground but putting all of that aside, given that the burden is on you under strict scrutiny to show that you've narrowly tailored a
law, if this is content based and with all the failings i pointed to, how do you win? on gravitating this act? mr. stewart: let me say two or three things on this. it would be impossible to make an empirical showing of the smallness of the exemption relative to the whole because what you would want to compare the government debt calls to is not to other calls that are actually being made in the world because a lot of the calls that would otherwise be made are not being made resizely because they're barred by the tcpa. what you would want to be asking is how small is this comparison -- how small is this class in comparison to all of the other automated calls that might be made if the tcba were not enforced. second, with respect to potential discrimination between collectors of government backed debts and collectors of other debts, the distinction that we pointed to
is that the collection of government backed debts implicates the distinct federal interest in protecting the federal fisk and it's not unusual for congress to prefer federal debt collection efforts, for example, if congress says the federal government can collect debts owed to by offset on a tax refund or social security benefits but private creditors can't do that or if the federal government has greater capacity to garnish wages, there's nothing problem at pick that. the last thing we would say is legislators of private debt coos petition the f.c.c. for an exemption and say there's no good reason to treat us differently and therefore you the f.c.c. should exercise your statutory authority to create an exception for all debt collection calls as to which their recipient is not charged and the f.c.c. would grant or deny that and if denied there could be judicial review so there could a be a more targeted challenge premised of
the differen sheation of government backed debts and others. justice roberts: thank you, counsel. justice kagan. justice kagan: can we go back to what you started with, you said there's no right way to think of how to analyze this question that we could apply analysis to the automated call restriction or we could apply it to the exemption for government debt. i'm wondering whether you could say a little bit more about that because we have have to pick some way and on the one hand the restriction is the only thing the -- the automated call restriction is the only thing prohibiting speech but on the other hand the exemption is the only thing that creates the constitutional issue in this case. so which end of the statute should we look at? mr. stewart: let me preface my answer by pointing to a hypothetical noted in the respondents brief of what we think is a good illustration of when it would be able to focus
on a an exemption. page 22 the respondents hypothesis a ban on all automated calls except to automated calls to a residential land line that endorsed the re-election of donald trump and that are approved by the trump campaign. now, we think an exception like that for calls made to endorse a single political candidate would surely violate the first amendment and would be not only content based but viewpoint based and there would be no good justification for it in terms of the basic rationale for the restriction. and even if the court concluded that this was a very small percentage of calls and didn't cast out on the credibility of congress' overall privacy protection objectives even if it didn't significantly interfere with the achievement of those objectives, the court would surely say the exception was invalid and in that circumstance. -- justice kagan: is this statute
like that statute? mr. stewart: i don't think -- justice kagan: the exemption is not viewpoint paced to the extent that statute is. but you heard arguments the exemption is content based so why not treat it the same way? mr. stewart: i think at the very most, you would street the exemption in the same way you would treat it if a restriction were imposed based on the same criteria. and if there were certain restrictions placed on the collection of government backed debt and only on the collection of government backed debt, you wouldn't apply strict scrutiny to such a law for the same reasons i've discussed with respect to the securities laws or other hypothetical laws that could restrict communications in a particular area of commerce. now spoppedents have understandably focused their attention on the automated call restriction in part because of the severability question, if they could persuade the court
that the exemption was the invalue illustrate provision and was struck down they wouldn't get what they want but have to establish distinct prerequisites to establish they have a challenge to the automated call restriction. one might be if the exemption taken in combination work with other features of the statute made it seem as though congress wasn't serious about protecting privacy. justice roberts: thank you, counsel. justice gorsuch? justice gorsuch: is some of my colleagues noted the irony of the first amendment challenge leading to the suppression of more speech as a remedy. i wanted to explore that a little further. as i understand it, you've taken the position there's no right way to do severance here but should we take coming any distance to the fact striking down the government debt provision was not relief that the plaintiffs sought in this
case? and we normally take some coming any distance of the adversarial process and the laintiffs request for relief we chided plaintiffs in this term of not including all the relief they might have wanted in this complaint and what do we do with the fact the plaintiffs seemingly would have no standing to challenge an exception for government debt collection activities. so they didn't seek the relief and don't have standing for this relief. should those things tell us anything? mr. stewart: you could do it that way and the court of appeal coos have done it that way. that's the principal argument the responds have made all along is that the government debt exception combined with other features of statutory and regulatory scheme call into question congress' commitment to the protection of privacy or prevent the statute from
achieving that objective and the court of appeals clearly didn't think that was right and the court of appeals could just have said that's the only claim you made, i reject it and whether or not you could have pursued a valid challenge to the exception itself, you haven't sought to pursue one and therefore i'm not going to consider it. given the court of appeals ruled as it did, we have tried to confront that argument on the merits. with respect spoke the standing sponedents at the always sought for relief invalidated the call restriction and clearly have standing to seek that and if the court holds yes, their right to the first amendment violation but they are wrong about the remedy, that would not an problem of standing but just would be a problem on the merits of their claim or at least the merits of their claim with respect to the appropriate remedy. justice gorsuch: let me come at
it from another angle and that's the separation of powers. the government's remedy proposed here is simply we should suppose or reimagine congress would have preferred a regime in which more speech is suppressed than one in which ess is suppressed. on what authority do we have the right to make that kind of judgment as opposed to simply enforcing the first amendment finding a violation and liberating the speech that's been wrongly suppressed? mr. stewart: let me say two or three different things about that. the first part, either invalidation of the exception or in validation of the restriction would produce a constitutional version of the tcpa. so in compliance with the first amendment neither would be preferred. the second thing is courts face that same question when you're doing severability analysis in the equal protection context where the result of severance
y be that particular individual -- justice gorsuch: the equal protection analogy suppose it doesn't work for me because equal protection is a guarantee of equality not of a substance. so you can level up or level down and satisfy equal protection but the first amendment is about a guarantee of speech. it has content in a different way. then what do you have? mr. stewart: i think what we ave the temporal sequence here where we had one public law in 1991 that enacted the basic auto dial restriction and a second public law that was enacted in 2015 and there is a constitutional infirmity where we had one public if you ask what constitutional law introduced that infirm ti it would have to be the 2015 public law. justice roberts: thank you, counsel. justice cavanaugh?
justice cave gnaw: good afternoon, mr. stewart. i think the government debt exception is almost certainly content based at least for me and i just wonder as a matter of housekeeping you don't argue it could satisfy strict scrutiny, correct? mr. stewart: that's correct. we've argued the automatic call restriction could satisfy. justice kavanaugh: these two things make that a case for severability and leveling up or leveling down. and you were just on this with justice gorsuch but would help me if you could kind of tick through your strong points about severability again. mr. stewart: i think the two strongest points and then i'll link the second to the functions act severability clause. the two strongest points are we think there would be a tail wagging the dog equality to striking down the whole restriction, one that's been in place for nearly 30 years that
has been popular with consumers that's protected a vast array of people simply to preserve the ability of government debt collectors to use one more means of communication. e second is the temp roll -- temporal sequence if we ask which law was it take introduced a validity would have to be the 2015 law and not the 1991 law and would be natural if you were poised to say that's the law that would be struck down. there is a severability clause that says if any provision of the communications act of which the tpca is a part is held to be invalid the remedy won't extend striking down that provision and for purposes of determining which is the invalid provision, i refer back to my point about temporal sequence and is the 2015 law that introduced constitutional infirmity.
justice kavanaugh: the essential premise is the underlying ban is thoroughly constitutional under the severability ban. mr. stewart: at least the underlying ban was constitutional before 2015. justice kavanaugh: without the exception the underlying ban is perfectly constitutional. mr. stewart: yes. justice kavanaugh: how much should we take into account on what would congress have analysis like? states attorney generals belief about beliefs about these calls that the common consumer complaint about robocalls, does that go at all into our analysis? like congress would have intended? mr. stewart: i think certainly this was not unnoticed
legislation. it's not legislation that fixed a technical problem. i'm talking about the original tcpa now, this was legislation that was intended to address a problem that congress thought was immense that affected vast numbers of consumers and obviously the emeka brief describes complaints being made about robocalls even with the tcpa's restrictions in place. justice roberts: thank you, counsel. take a minute to wrap up, mr. stewart. mr. stewart: thank you, mr. chief justice. the last thing i'd say is refer back to the point i was making at the beginning about given that the respondent is asking the court to focus on the restriction and not the exception is appropriate to ask whether the restriction is content based as the court in reed understood that term and the court in reed described content based laws as laws that target speech based on the communicative content. respondents speech was not targeted based on its content
but treated the same way as the vast majority of messages that people could use automated calls to transmit. thank you, your honor. justice roberts: thank you, counsel. mr. martinez? mr. martinez: mr. chief justice and may it please the court, my clients are political organizations that want to engage in political speech at the core of the first amendment. the tcpa bars them from using some of the most effective tools of communication now available. automated text messages and calls to cell phones. at the same time, the statutes' exceptions let government approved speakers use these same technologies to deliver government approved messages that subvert the same privacy interests supposedly requiring a ban on all other calls. this content based scheme arbitrarily favors commercial speech over core political speech. it violates the first amendment and should be struck down. the call ban is extremely broad, although the tcpa's primary purpose was to address
telemarketing calls the cell phone ban sweeps further and outlaws political and other noncommercial calls even when citizens are open to receiving them. the government says congress needed a restriction that broad in order to protect privacy. the statute's history disproves that. congress and the f.c.c. exempted noncommercial calls from the residential call ban after concluding they do not adversely affect the privacy rights procketted by the tcpa. there's no good privacy based reason for treating these exact same calls differently when made to cell phones. the government debt exception confirms congress did not view the privacy interest here as compelling. that exception exposes 60 million americans to unlimited calls to collect more than $4.2 trillion in debt. those are the kind of calls consumers hate the most. if congress really thought privacy was paramount it would not have allowed those calls. because the speech ban is too broad and unjustified, the
restriction, not the exception must be struck down. that's what the court has always done in first amendment cases and rightly so. federal courts cannot fix first amendment violations by making more speech illegal. this court should reject the remedial approach that eliminates incentives to challenge unconstitutional speech bans and gives my clients no relief even though they won their first amendment claim. justice roberts: i'd like you to focus on the argument based u. r decision in williams lee, which is when congress takes steps to help cure a constitutional problem they don't have to do everything it ants wants. you object to the fact some speech is allowed but the allowance doesn't reach more broadly. and what we said in williams u. lee is again, so long as congress is moving in with what the court would regard as the right direction, they don't have to do everything at the
same time. so the fact that you say we should allow more speech here, here and here, again, it doesn't mean that it has to be done at the same time as the first step was taken as it was here. mr. martinez: right, your honor. i think with the williams u. lee is getting at is whether the exception undermines the credibility of the government's interests that it has been asserting. and i think in this case the 2015 exception really does undermine that because it's not getting at -- it's not trying to exempt the least intrusive of privacy speech available but actually exempting the kind of speech the f.c.c. itself has acknowledged is the most intrusive kind of speech and those are the debt calls psms so williams u. lee i think is talking about a situation in which the government or congress -- the legislature is trying to accommodate kind of the speech that is least problematic from the standpoint
of the interest that's being asserted. but here congress has done the opposite. it's exempted the speech that's most problematic. i think this really makes it a different case from williams u. lee and brings us squarely within the concern williams u. lee had in which when congress enacts broad exceptions like the one here it might actually be a sign, it might be evidence of the fact that the interest that the government has asserted for speech restriction really isn't that strong. justice roberts: your friend on the other side on the severance question makes a very strong point that congress had this law for 25 years and then they added this pretty discrete exception that created the problem we have today. it seems pretty obvious that the way they would solve it is get rid of this exception. it's an extremely popular law and nobody wants to get robocalls on their cell phone. the idea that congress would
embrace that result simply to save this government debt collection, they'd have to be very anxious to be more unpopular than they otherwise would be. mr. martinez: well, two points on that, your honor. first of all, i think the fundamental problem here is the invalidity of the restriction and i think that even before you get to any severability inquiry about intent, we have to be very careful and specific about what is unconstitutional about the statute. and i think what the 2015 exemption shows as well as the much more favorable treatment to political and noncommercial speech when it comes to calls to home phones, what those show is the privacy interest here really isn't compelling and that the restriction is what falls. you don't even need to look at severability. but as to the intent -- justice roberts: justice thomas? justice thomas: thank you, mr. martinez. the problem that i have is you
issue, the at the real problem is the restriction. the e focus here is on exception. and if you solve the exception problem, it doesn't solve your restriction problem, articularly if you sever that. that's the asell tri, the problem, the restriction but the constitutional problem is really the exception. i'd like to ou you explain what you just said, why the restriction is the constitutional problem as opposed to the exception. mr. martinez: right. let me start with the two things i think the exception does. number one, it introduces a content based distinction and it defines the scope of the
restriction and therefore triggers strict scrutiny but number two and more importantly for purposes of our constitutional theory, what the exception does is it reveals the underlying frailt, the underlying insufficiency of the justification for the restriction and why does it do that? it does it because you have congress saying because we want to get more money, we are willing to trade off privacy for revenue. congress is coming in and making a judgment that money is more important than privacy. justice thomas: what would your argument be if the exception did not exist? mr. martinez: if the exception did not exist and we were looking at the law today, i think our argument would be weaker but i think we'd still be able to show the restriction would be unjustified and i think the main thing -- justice thomas: what would the analysis be? mr. martinez: the statute would no longer be content based and we'd be applying intermediate scrutiny but in the context of
applying intermediate scrutiny we'd look at the fact calls to residential phones, calls to the home where privacy matters the most these same types of political and noncommercial calls my client wants to make are perfectly allowed. so congress and the f.c.c. have made a judgment and this is clear if you look at the 1992 order from the f.c.c., congress and the f.c.c. have made a judgment that noncommercial and nontelemarketing calls do not adversely affect the privacy rights the tcpa protects and made that clear by essentially allowing those calls at all times of day to home phones. so if you have that indicator of congressional intent that they're not really worried about political calls and noncommercial calls and they're not worried about that as an intrusion of privacy, then there's no rational reason to treat cell phones differently and congress certainly didn't make that judgment. of course in this case we have not only the differential treatment of residential calls but we also have the evidence
provided by the 2015 exception which shows that they're willing to trade off privacy for money even though everyone would agree that money is not -- collecting more money is not a compelling interest. justice roberts: thank you, counsel. justice ginsburg? justice ginsburg: your challenge is predicated on the government debt exception. i thought that the statute as the nally enacted would -- statute as it originally enacted did have an exemption for calls made by the government itself or government agency, isn't that true? mr. martinez: it's true that the definition of person -- or interpreted by the f.c.c. is that the statute does not apply to the government itself. justice ginsburg: no one challenged with 20 idea, one characterization is this is really a manner restriction,
that is it doesn't prohibit calling, it doesn't prohibit conveying a message, it just prohibits using a certain automated technology to call, so it's a manner of ommunication, it's not a restriction on the message. mr. martinez: well, your honor, with respect, i do think it's fair to say this is a restriction on a certain manner of making calls but the types of calls that are either made legal or illegal, you know, the dividing line between what's allowed or not allowed turns on content of the calls. if you were facing a statute that said, for example, you are not allowed to advocate libertarians by using emails or phone calls or hand bills, all of those would be manner restrictions but i think we'd all recognize those are content based restrictions that would trigger strict scrutiny and
inevitably fail. justice ginsburg: on your severability, we know what congress wanted to stop were t of the blue calls, calls you had no reason to anticipate and calls about debts owed to the government can be regarded as less invasive in that respect and not out of the blue , usually they are simply a reminder of an obligation that the debtor under took. mr. martinez: your honor, with respect, i don't think that's the original justification for this particular provision. and i would point to two things. first of all is the fact that the kind of out of the blue calls that my clients might want to make, political calls, those are calls that were perfectly allowed and perfectly acceptable to the home when congress and the f.c.c. acted in the early 1990's and of course at that time home phones were over 90% of the phones in
america were home phones and where the privacy interest were in their apex and congress and the f.c.c. recognized the kind of calls my client wants to make don't tread on privacy interests enough to warrant that kind of restriction. and i think what that just shows is that again, the privacy interest being asserted here isn't really strong enough, even if you look at what the f.c.c. said about this, and i would look at the 1992 nprm, especially at pages 877 -- sorry, 2737 and in the 1992 order at 8773 because there the f.c.c. said that noncommercial, nontelemarketing calls can be exempted without undermining the tcpa, if that's true -- justice breyer? justice roberts: justice breyer?
justice alito? justice alito: mr. martinez, i'm interested in your analysis of the severability question, and i wonder if you could say whether your position depends n either the breadth of an exemption or exemptions or the manifestations of congressional intent. so let me give you an example, a fanciful example that tries to reduce both of those things perhaps their lowest limit. suppose there was a total ban on automated calls to cell phones or all phones but there was one tiny exception for let's say calls between noon and 1:00 p.m. on the fourth of july that contained this simple message, happy birthday america. and let's say that the statute allowing this contains a provision that says that if the
inclusion of this exception reppeders the statute unconstitutional, the statute force hall remain in and the exception shall be stricken. you would say even in that situation the whole statute would have to fall? mr. martinez: your honor, let me try to address that in each of the two pieces because i think it's a nuance questions and deserves a nuanced answer. first of all, with respect to the narrowness of that particular ban, i think that the fact that particular restriction -- or exception is so narrow, i think that probably, you know, looking at the totality of the circumstances, we'd look at that and think the existence of this one tiny exception and the fact this really isn't going to invade privacy that much, i think that probably would be a reason to conclude the restriction is not unconstitutional and if that's true, of course the severability analysis wouldn't be necessary. if you take the other part of your hypothetical, though, as i
understand it, if the statute had a provision in it that essentially said, if the restriction fails you should nonetheless sever the exception and reinstate the restriction, i don't think that would be appropriate because i think the reason that the restriction would fail in that circumstance is it is insufficiently justified an getting rid of that exception doesn't solve that problem. the exception -- again, assuming the exception was big enough to actually create a problem, a constitutional deficiency with the statute, the exception is evidence of why the restriction is unjustified. so getting rid of that doesn't solve the problem with the restriction. justice alito: that seems to thwart a manifestation of congressional content but you think that's irrelevant in this situation? mr. martinez: i think in a circumstance, your honor, i don't think the government disagrees on this. if you look at pages 17-18 of their reply brief they essentially agree if the
problem with the statute is the restriction, then the restriction has to fall. i think there's another way to look at the case and i think my friend on the other side has sort of tried to frame it this way, if you thought the only problem with the statute was not the justification for the restriction but rather the fact that there's differential treatment, we think that you still have the first amendment matter for a number of the reasons mentioned that you still need to get rid of the restriction but even if you didn't agree with us on that, i think our fallback position would be the position the third circuit took in the rappa case in that you need specific evidence of congressional content and i guess in that case in your hypothetical, if your hypothetical expressly addressed this situation, maybe in that case the exception would be severed. again, that's not the case here because here the underlying restriction is what's unconstitutional. justice roberts: thank you, counsel. justice sotomayor [justice sotomayor: are you
taking the position that all restrictions of robocalls are unconstitutional or that just a like this one on is unconstitutional because there's some types of speech that should not be covered. mr. martinez: well, i think your honor, in this case obviously we're dealing with the statute at hand. i think that there are some restrictions on robocalls that i think -- that probably would satisfy the appropriate level of scrutiny and just to take one example, the way that the ban on calls works to home phones right now, it's ssentially a ban on commercial elemarketing robocalls telemarketing robocalls to the home and that's the kind of -- that's the heart of what the tcpa was getting at and what congress and the f.c.c. said, this is the poor privacy we're trying to correct. justice sotomayor: and i can
think of others, any schemes to get money, any -- because there are so many scams from robocalls but putting all of this out of sight, assuming at there is a -- part of the restriction that could survive strict scrutiny under your claim, why shouldn't we limit any remedy striking down this provision simply to permit the types of calls that your clients make? why should we be striking down the entire statute? now, would you have to prove and i don't know the court has one this below, that restricting political speech is tailored and don't know it's been done in this case. but if the issue is the remedy,
shouldn't we let the circuit below decide that question? mr. martinez: your honor, two points on that. first of all, we brought this as a facial challenge. we of course would welcome the kind of relief that you hypothesize but think the appropriate relief here is to strike down the restriction in its entirety and one of the reasons for that is the point you raised with mr. stewart earlier which is the entire absence of any evidence or justification for this particular ban for any of it, all of it or pieces of it that the government has completely failed to put forward. this statute is subject to strict scrutiny and this court said over and over again that the government is the one that bears the burden of satisfying strict scrutiny. they with the exception -- with respect to the restriction, a single sentence in the reply brief, and nothing else. n their supply brief.
i think the best thing to do was to hold the government to its burden of proof, invalidate the restriction, and congress can come back and legislate in a way that is rational. >> thank you. ?ustice breyer ? i'm sorry, the telephone started to ring and it got me off the call and i don't think it was a robo call. we did get it straightened out. my question is this, forget the political part of this. assume it's out of it. me is if you call this strict calling for strict scrutiny, i guess the governments justification, which is that government debt is owed to us all as taxpayers, private debt is not and is so treated specially. there are many situations, food and drug agencies, agricultural
selling, theerning ftc, the sec, where they have regulations. and the regulations have a broad category. and item x falls within it, lamps might fall within categories that require you to put electricity regulation on. how many amps does it use or whatever. but then you discover a subcategory of what you just put you say leave out the subcategory for some reason. if the court starts criticizing that for strict scrutiny, very few will survive. the normal way of looking at it is, is it a reasonable thing? 's thirdbrandeis category. why does this fall into strict scrutiny once i get the fall -- , but notics out
justice brandeis's regulation? >> this falls into strict scrutiny because it satisfies the test for a content-based restriction that was set forth in read. i amu realize that wondering whether to stick to that approach or not. reed will not convince me, took a majority but not good enough. starting there would be a good -- >> i'm trying to clarify my own thinking on it. ? i don't think you should be concerned about the prospect of other laws and economic regulations being impacted by this. --that's why want the exam the answer to, exactly why. >> those restrictions i get tangled up with speech in terms of those, those would be at
most, commercial regulations which would not be subject to strict scrutiny regardless of whether or not they are considered content-based. so the government lists a number of statutes that it says, if this guys going to fall and the statutes are unconstitutional and that's not true. bemost, they would regulations of commercial speech, at most. and it would trigger intermediate scrutiny under the settled doctrine. kagan.ice >> good afternoon mr. martinez. you a hypothetical. suppose this was written in a slightly different way and it exempted any calls between the holder of a government debt and a debtor, would strict scrutiny apply? i think in that circumstance, the regulation would not turn on the content of the call so i don't think it would for that
reason. >> in other words it turns on the relationship. so what is the difference? that's what congress was trying to get out, and perhaps they did not know all of the first amendment rules, but that regulation covers the particular kind of economic activity, the collection of government debt, and this regulation covers the same kind of economic activity, the collection of government debt. they are two ways of getting at the same thing, both are the economic activity of the people involved. why should there be any difference? , iperhaps i misunderstood thought in your hypothetical that as long as the relationship element would satisfy, the call could be on any subject -- >> when the holders of government debt called debtors it's to collect a debt. it's not to discuss political issues. >> with respect, i'm not sure that's right.
this inhas addressed their 2016 order at page 9087, where the fcc contemplated discussing the content of the calls issued by collectors of government-backed debt, contemplating that the subject matter might range beyond the collection of government-backed debt. may be marketing other products, may call your congressman and change these laws that apply to banks. what the sec has said when the subject matter of the call ranges from the topic, then it is transformed and is no longer allowed. >> a technical issue, mr. martinez, but there are two ways when congress is trying to get to the same thing, the calls between debtholders and debtors is almost always about the debt. why should we care?
even if congress did not write this in the right way, why should we care so much as to put strict scrutiny into place if this doesn't raise any real concerns about government censorship, the suppression of ideas, a distorted marketplace of ideas, why is this an appropriate time to put strict scrutiny into place, given with the government and legislation is trying to get at, which is an economic relationship. >> it's important because it protects liberty, it makes it harder for congress to enact large speech brands which would affect everyone, assuming it could carve out special exemption. the way to police that problem
is by making sure that congress has to be careful, and make it clear that they cannot -- in this case delegate authority to government agency, to hand out specialized exemptions to whatever well-heeled party turns up and claims in exemption. gorsuch?e >> counsel, i would like to turn back to the intuitive appeal of the government severability argument. if, as i think you have conceded, the statute before the government debt exception would not have been content based, it might have been permissible under the first amendment. congress then comes in and as the government debt exception and that changes the equation. the intuitive argument based on that sequence of event is just get rid of the government debt back to when we go everything was fine.
why should we reject that intuition? ? there's a philosophical reason and a historical reason. the philosophical reason is essentially in the first amendment context, courts should not be making more speech illegal because if courts take a certain type of speech that congress expressly chose to allow, and then make the decision to prohibit that speech, they are essentially stepping into the legislature shoes and making tentative policy trade-offs that indisputably cut against first amendment interests and they should not be the one to do that. philosophically, you need to make sure people have the incentives to challenge unconstitutional laws. i think it's important to matter -- to recognize that the original justifications for the bands on cell phone calls was that those calls would inflict charges on called parties. that's the reason that the ban was in place originally, that's why it may have been justified
earlier. but in today's world, call plans essentially don't exist, or are overwhelmingly people are not charged when they receive calls. the historical facts are different. because of the fact that everyone has cell phones, the government has a strong interest now from a revenue perspective of making debt calls. if you wrap it together i don't think there's a good historical that inr concluding fact, we know with certainty, the kind of certainty we should have in the first amendment context, that congress would want to reenact this statute if it was not allowed to make the calls to collect government-backed debts. least me see if i have at that second point around my head. the argument is that maybe the first congress that enacted the thought thatute all robo calls should be prohibited, with some exceptions that you have no complaint with.
the second congress, acting in a different time, had a different judgment about which calls should be permitted, that included the government debt exception. we don't know whether the second congress, enacting the revised statute, would prefer situation in which all calls are prohibited or allowed. does that sum it up? caveat that well are talking on the assumption that there is a severability analysis required which turns on intent. i think our primary position is that the nature of the first amendment and the constitutional flaw in the statute, we think that that means that essentially, under everyone's understanding of the severability principal, the restriction must be cut down. thank you. justice kavanaugh?
? thank you, good afternoon. you, good afternoon. on severability, we have no precedent either way, when a first amendment problem is created by an exception to a ban on speech, rather than the first amendment problem being created by the underlying ban without the exception. finally we have precedent either way -- i don't think we have precedent either way. and level up or level down as the remedy. i want first question, to make sure i have you on this, is the underlying restriction on cell phone robo calls constitutional without the government debt exception. focus on exactly that question. >> we think, given the evidence we know now about what congress
's interests are, and how strongly they do or don't believe in the privacy interest area we believe the restriction is unconstitutional. >> let me make sure i have you right, the underlying restriction, if there had never been a debt exception, is the underlying restriction unconstitutional? yes, based ony the differential treatment of the residential calls. that, to say one thing on because you want me to hypothesize that the 2015 law had never been passed. i think if you think about that law is evidence of what congress thought about privacy, that it was not passed does not mean that deep down congress believed in privacy more than was later revealed. i think it's important to recognize that in our argument,
the role of the exception is not to introduce the textual content east distinction, but to reveal the underlying lack of justification which was always there. >> on that point i would pick up on what the chief justice said and the states amicus. if you take a look at the real world, this is one of the more popular laws on the books, because people don't like cell phone robo calls. .hat seems common sense do you want to argue against that common sense? >> i think aspects of the law are popular, the head of the fcc has called this the poster child for lawsuit abuse. because there are a bunch of problems with the law. it has its supporters and detractors, but i don't think you should worry about congress's ability to protect people. even if we win the case, congress has plenty of options
that are constitutional to protect people from unwanted calls. ,t can focus on telemarketing it could expand the remedies available on the do not call list, which allow consumers -- case,n if you lose this congress can scale back what you view as overbroad restrictions. but if you lose this case, congress will still have in place a restriction that has been on the books for 30 years that has been perceived as constitutional and is popular. say is i think the right way to think about this is to apply the doctrinal tool that you always apply in first amendment cases, even where the speech involved is not popular. the first amendment is not just to protect speech that people like but that people find offensive or annoying. >> would you like to take a minute to wrap up?
? the core purpose of the first amendment is to protect the free exchange of political speech even when they find it to be a nuisance. that's what this court recognized in the martin case when it said first amendment rights protect people from making intrusive door-to-door solicitations. that's protected activity. the call issue here is protective. we ask you to do what you always do in first amendment cases, strike down the unconstitutional restriction on speech. thank you. >> mr. stuart, you have rebuttal. martinez tor. acknowledge that if this was a restriction on speech to collect government debt, it would be subject to intermediate -- into --utiny because it would be the position of the other side is that this provision could be
viewed more skeptically, and subject to more review because it is to take particular speech out from under regulation, rather than to regulate it. that's contrary to the usual understanding of the first amendment exists to foster speech, to the court reference in read -- reed. why would the court review more skeptically a law that looked at the same basis as a rationale for exempting speech rather than to regulate? times. martinez said many that congress and the fcc had exempted noncommercial calls from the automated call restriction. that really overlooks the respective responsibilities of congress and the fcc. congress has broadly regulated calls using a prerecorded or artificial voice to residential land lines as it has two calls to cell phones.
both of those bands encompass noncommercial calls. congress has vested the fcc with broad but not identical authority to exempt particular categories of calls from the residential and cell phone ban respectively. au can look at five a and six to see the exemption authority that has been comparable. discrepancy results from the fact that the sec has -- the fcc has exercised authority robustly with respect to residential land lines than cell phones. create -- i cannot create constitutional infirmity in the statute itself. adopt sec should comparable exemptions they can file a petition to that effect. the last thing i would say in respect to those between mr. martinez and justice kagan said
yes, they framed it not in terms of the content of the call but in terms of all the calls from the holder of a government-backed debt to the debtor, that that would be subject to more relaxed scrutiny. that's an approach distinguished on that basis, which encourages congress to enact laws with more of a broad brush. discourage congress from trying to find tune laws. which would only be exacerbated if we took the responsible discoverability striking down the hall law. thank you. >> counsel, the case is submitted. >> after oral argument wrapped up, the national constitution center reviewed the case which challenges allowing automated calls to cell phones in order to collect debt on behalf of the u.s. government.