tv Review of Supreme Court Oral Argument in Robocall Ban Case CSPAN May 10, 2020 11:18am-12:00pm EDT
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. this is 40 minutes.
we are now lucky enough to be joined by scott nelson and robert mcnamara. nelson filed the brief in support of the president of the united states who is a petitioner in the second case we which is bar versus american association of political consultants. he filed his brief on behalf of public citizen in the public foundation. scott nelson is an attorney at the public citizen litigation group in washington. he's been there since 2001. he is a former lawyer for justice byron white on the u.s. supreme court and we are honored to have them today. is senioramara attorney with the institute for justice and he has filed a brief in support of the state of pennsylvania who is the respondent on behalf of the institute for justice.
since 2006 with them and litigates constitutional cases to protect free speech, property rights and economic liberty and we are honored to have him as well. thank you so much for joining us. >> thanks for having me. >> thanks. with the basic argument in this case about robo calls. there was a great moment in the case were justice breyer dropped off the phone and said i had a phone call. it wasn't a robo call but it reminds us of the fact that our cell phones are treated differently than our home phones. i have unplugged my landline because i get these robo calls from the person who had my landline 10 years ago who is in a government debt collection agency. callperson continues to because those calls are authorized on land lines but they are not authorized on cell phones.
the essential question in this case is whether it was a form of content discrimination for congress to say you cannot make those government debt collection calls on cell phones but you can on land lines. by aase was brought political action group that said their political speech was being discriminated against by not being able to make those calls. respondentmara, the goes first here so tell us how you see the central issues in the case and how you believe the court was framing them. >> the central issue in the cases that congress has made a generally illegal to make robo calls to cell phones which all of us hate robo calls. but not all robo calls. if you make the robo call to talk somebody into paying back certain kinds of federally backed debt, that's allowed. a content-based restriction
on speech. if i'm am allowed to call you and say a but not allowed to call you and sayb, that's a restriction based on what i'm allowed to say and content-based restrictions on speech get strict scrutiny. most members of the court generally seem to accept that justice ginsburg started her first question with -- i have no idea how you get around the content-based question here. there is a second question lurking in the background that took up a lot of time and rightly so. what the lower court did is said ok, i will grant you that this is a content-based restriction on speech and what i'm going to do is i'm going to enjoin -- i'm going to strike down the exception to the general rule. i will say now the law applies to robo calls that are debt collection calls as well. that'sblem with that is not usually what we do when we deal with discriminatory laws. what we usually do is we enjoin
the part of the law that violates the part of the constitution is nothing that violates the constitution about not prohibiting debt calls. what violates the competition is preventing political groups in engaging in political speech tole also allowing people call about debt. this goes beyond the boundaries of just robo calls. constitutional laws about one kind of discrimination or another. in the first amendment, we say you cannot enforce this law against me because you are not enforcing it again similarly situated people who say different stop. you could also say you cannot enforce the law against me because you were enforcing me based on my race or you're not enforcing against anyone and only enforcing against me because you don't like me. that is discrimination.
what courts do when those situations come about, if you are right, you are right, that's discriminatory in the government cannot do this to you. they don't say you are right, the federal government rounds up people of a different race and better go round up some people to enforce this law again. below turn that on its head and said congress one of these people to be able to speak and they want to collectors to be able to speak. we will order the executive branch to go out and stop them without making congress make that difficult judgment. that's a loss of what you see the court wrestling with is what that thish the fact is clearly a content-based law. should the justices rewrite it or is that the job of congress? does the law violate the first amendment and is it a
content-based description? should we just take out the exemption for the debt collectors or should we strike down the entire lot? -- entire law? the petitioner should have gone first before the court. solicitor general was arguing go behave overly go. . scott nelson is arguing on behalf of the petitioners. apologies for reversing the order but that will keep things interesting. perhaps you can give us a sense of what you heard in the courts answer to those two questions, how is a grappling with the content-based discrimination in which of the right remedy be? >> as to the first question, i think it's important to start out by giving some background on what the law is. it's called the telephone consumer protection act and what it does is prohibit the use of a
particular kind of device and automatic dialing system or recorded message to make calls to cell phones. that, in itself, everyone agrees is neither a restriction on the does itof speech nor prevent anyone from talking about any subject. the problem the plaintiffs have seized on is that congress, about 25 years after first enacting the telephone consumer protection act, created an exception to it that allowed calls made for the collection of government debt or government guaranteed debt. that is the basis for the argument that that the other suddenly,w made that this restriction was just a restriction of the mattering and
the technology where you place in the call. it has placed a limit on speech. the government's first answer to not a lot ofill singled out speech for regulation based on content. i think justice kagan put her finger on it. regulation of a particular type of economic activity, debt collection. it's a regulation of what means can be used to engage in that sort of economic activity. as justice breyer pointed out, regulation of any can -- of an economic activity doesn't usually get heightened scrutiny under the first amendment. justices in justice kavanaugh was very straightforward about this, too,
or nope of the idea that you have to look at what is said in the call to determine what the restriction is and that may mean that its content-based. that leads to the next question which is, in the jargon of lawyers, severability. it's become a theme in many cases that are coming up at the end of this term in the beginning of next. what happens when you have a law that otherwise is perfect he fine but it gets some small thatsion added to it arguably makes it constitutionally problematic. do you strike down the whole law or do you segregate out that piece? what was interesting in today's argument, the challengers to the
law argued that that principle cannot really be applied if the consequence will be that the law is going to regulate more speech. they got pushed back on that from across the board. one of the really fascinating things about this new format is, for the first time in 30 years, we get to hear what justice thomas is thinking about a lot of these cases. i think he asked a very incisive for.ion to the lawyer the challengers he said, isn't your argument here that the problem with his law is that it's got this provision that discriminates in favor of this aspect of the speech. if that's the problem, why don't we just excise that piece of it?
you heard a very upfront justicet from the chief [inaudible] [indiscernible] i think the core [indiscernible] >> thank you so much. we lost you at the end of it but thank you for calling out the importance of justice thomas's question about the right remedy wheree chiefs response normally congress would proceed category by category. i will ask you about justice
thomas's question. he also noted the privacy interest is greater in a -- then inat an ace a cell phone and severing the law would take certain things away from both. it wouldn't give them the probably sauce. is it right that the privacy interest is greater on a landline? by calls toritated my cell phone. why couldn't congress treat cell phones and robo calls differently full stone severability was crucial to the respondent's position. maybe we could just include you, the political groups, but not strike them rule law for
everyone else will respond. >> privacy is an interesting word to use to describe with the government is really trying to do here. are gettingt people information about me that i don't want them to have which is what we mean by privacy. there must be a better word for the harm that the law is aimed at witches intrusion. i'm not mad these people have my phone number but i'm mad that they are using my phone number and bothering me when i'm putting my kids to bed. that's intrusion. i think the response to the idea that this is just congress .pening up speech government-backed debt is not the most intrusive kind of call. if you want to chart the level of annoyance people feel when calls thato calls,
they need to pay picked their student loans are probably more annoying. it suggests that's is not what congress is doing, congress is kowtowing to certain powerful interests and favoring that speech over other speech in a way that historically, they have been skeptical of. speech,ant to suppress you need to suppress everyone's speech. if you have speech that will get some money for you or speech that has a more effective lobbying group, that suggest that maybe you're are not as serious as you thought you were about the interests at stake. that starts to make us skeptical. i think justice thomas's question gets to the heart of it.
one difficulty of arguments of means itin this format makes it more difficult to read tea leaves. with all of the justices asking questions on both sides, it's unsurprising that the the justices have hard questions for both sides because they are really smart and they ask the hardest questions they can think of. i think that is the crux of the , why problem with the law not excise the one little thing and make the government punish more people. the answer goes back to the -- there is a problem and how we are talking about what courts do. we keep saying the courts stretched down laws. courts don't strike down laws. the role the law of islam the book.
the court can say you're not allowed to enforce this law against these people. i think justice sotomayor may be the law far as enjoying and i'm not going to and join it as anyone else. that's a discretionary question. it can issue an order saying you're not allowed to force the law against these people or can issue an order saying we insist you enforce the law against these other people who are not participating in the process. we will demand you go arrest them and enforce the law against them. congress did not want to enforce against them and that's an astonishing order. that's not usually what the cords do. andou are sitting down thinking about the law from legislative draftsman shift, you probably get rid of the small exemptions. as the that's what i think a
sherlock holmes reader would do. calls is outs robo if -- if congress had the authority, they would ban all robo calls but that's congress's job. the court's job is not to sit down and rewrite the loop -- the legislation. it's just an issue an order in the general rule is that the order is in order saying you cannot enforce this law against these guys in this circumstance. the order issued by reviewing courts, you must go forth to take away rights from third parties not before us. >> thank you for all that and thank you for identifying the a kind ofis case but intrusion on the seclusion of our homes now that we carry the cell phones around with us. his famous dies, and article identified a series of seclusion,rusions on
false light, intentional of inflection and speech that offended our dignity. diesard justice ren invoked by justice breyer who talked about his third category of economic speech was generally was less closely scrutinized. justice brandeis, in his famous hisement eventually change mind and concluded two strong protections for privacy would infringe free speech. he said i've the philosophical question. what is content discrimination? all human communication is carried on through speech. what was the implication of his
question and would holding otherwise regulation is subject to a higher degree of scrutiny whenever it makes -- with that call many forms of regulation into question? that is, in fact, what corporate interests have been inng now for several years light of the courts broad statements in some cases about the meaning of content discrimination. they challenged all manner of restrictions on commercial , as justice breyer explained, is carried out through communication such as the offering of securities, for example. is carriedase that out through free speech. it's usually been regarded as something that's fair game for government regulation.
even though those regulations would not apply if you are talking about hamburgers rather than the security. i think that's what justice breyer is worried about. and a host of cases, we have seen that commercial entities that are relisting economic regulation have made their argument. for the challenges said that is not a problem because as long as you're only regulating commercial space, content-based discrimination is just fine. i actually agreed with that is on that specific statement. unfortunately, a lot of commercial speakers who are trying to evade regulations have been challenging that and they been relying on the same line of cases that the challengers are
relying on here, to try to characterize economic regulation and speeds regulation. i think this is really a case in point. thatis not about saying you can call somebody if you are advocating on behalf of of abortion rights but not here .very does advocating this is a particular form of technology which can be used one particular commercial activity, debt collection. it cannot be used for other calls. robertn to agree with that that particular exception is a very bad idea as a policy matter. i the people would be happier if gil and been to allow
debt collection to be carried out to robo calls. not everything they disagree with his enclosed two snowfalls even if it is, i want to push back a little bit against the idea that it's not what courts remedies to their the constitution that is problematic. when dealing with problem with the constitutionality of the statute you do -- you don't don't just look at the leaf that they are providing for holes what a court do, to put it in robert's terms, is it would
issue an order saying yes, this statute may be enforced as long as this exception is rendered inoperable. courts actually do that quite frequently. there was a case a couple of years ago where someone came into court challenging and average in law that favor the citizens whoomen were born overseas over the children of male citizens who the court says yes go that soon the theditional but challenger who was a child of a male citizen was out of luck because what the court says was we will remedy that by saying that the preference that has been given to the children of many citizens is what is valid.
you don't get any relief and theher does the children of women and there are 31 streets. where >> iisely thank you so much for showing us the options the court facing -- faces in charge of options. justice ginsburg often cited a said thatstice harlan when there is a violation of equal protection, the remedy is either to extend the benefits in the class, a manner being discriminated against or to strike it down for everyone. of what's theion basis here is whether to extend or exclude and what is your response to the chiefs very stark question. --said no one wants to get no one wants to be called on cell phones. that would make them more
unpopular if they enforce that and they did not >> want that. >>there are many cases when you talk about a government benefit where the court can extend the benefit or eliminate the discriminatory benefit but there's a difference between government benefits. there are cases about punitive laws that restrict individual liberty. it's a stretch to say the courts routinely do this. the immigration case is the only time in many decades that we see the court doing that and justice ginsburg's opinion in that case is clear that the only reason she is leveling down instead of leveling up is that leveling up would create a situation that is so unthinkable, it would be unconstitutional on its own merit. it's not something courts routinely do that says go forth and punish more people. it would be an unusual remedy in this case. the chief is probably right that
nobody in congress would want to say it's a free-for-all for robo calls but i also think that it's congress's job to say that in the first instance, that usually is the legislature's job to restrict liberty, not the court's job to say you have not restricted enough liberty and therefore we are imposing but greater restrictions on liberty. i think that's ultimately the out come of the severability issue. a little bit of the speech conduct question, it comes up a lot, we heard from justice kagan and justice breyer, the idea that what the legislature is trying to do is regulate economic activity. perhaps a sense that because it's economic activity could, should swallow the fact that it's speech. that's an intuition many people have been on an intuition that really holds up on close examination. all three of us now are getting paid to have this conversation and get all three of us are
talking. we all have jobs and are doing this in accordance with their jobs. i did not get an honorarium. >> that would be great. >> that doesn't change the fact that what we are doing is talking and what the court is recognizing is that you can always play this game when you talk about the first amendment cases. the government can always say it's trying to get at some underlying conduct because everything's conduct in a sense. writing an article is pounding your fingers on the keyboard. we areernment could say not trying to suspense -- to suppress speech, we're trying to stabilize the labor market. standup comedians don't just tell jokes, they induce amusement. with the court has said is we don't care what label the government puts on it. we need a broad protection of speech in the way you protect speech is used say if the thing that makes what you are doing illegal is simply what you are saying, then that's a
content-based restriction on speech. if all the other things you're doing could be the same and you say something different, that's a content-based restriction on speech. it's the simplest test in the world. i think the ever so the government to muddy the test and make it difficult or just an effort to pair back first amendment protections across the board. you protect free speech by protecting free speech. mr. rosen: scott, one last substantive question and then read closing arguments. you referred to a broad effort to strike down government regulations as a violation of the first amendment. economic called this erism,amendment lockn after a case. the claim here is that by closely scrutinizing economic regulations as violations of free speech, the court is once again second-guessing
legislative god -- legislative judgments. can you give us a sense of which justices, if any, are sympathetic to this very high protection for speech and for closely scrutinizing economic regulations? who is on the other side? we know justice breyer is in favor of great severance. is chief justice roberts somewhere in the middle, when he referred in the middle to this read case, which basically said that we have to fast whether the law target speech based on communicative content and it is a case-by-case evaluation? mr. nelson: i think to begin who are mosttices suspicious of the encroachment of the first amendment on economic regulation are pretty briar, justices kagan, and ginsberg, and sotomayor.
that i think have, in other cases, been on the other of that, are justices gorsuch.nd alito, and i think we do not have that good a sense yet of justice kavanaugh on this matter. that he and justice -- to the extent that there is any swing on the issue, they would be a little bit more towards the center of the court. however, in this particular case, you heard justice kavanaugh pretty straightforwardly say in response to a question that he saw the case is principally being about severance. like a this looked
content-based restriction to him. justice roberts i think asked suggestedions that that he wanted to hear the arguments on both sides of that issue. and was kind of pressing, i think, both sides on the point, at least to some extent. theough again, for him, pressure point on the challengers seems to be the question of severance more than the question of whether this was content-based. mr. rosen: thank you so much for that. time for brief closing arguments in the spirit of the oral argument we have just heard. we have covered the two main arguments so well. determination, and the remedy. so why is this case important, and why should our great c-span
viewers care about it? robert, the first closing argument is to you. mr. mcnamara: this case is important not because it is about robo calls or any of us need to have any sympathy for the ability of anyone to make robo calls at any time. this case is important because it is part of a broader argument about what the first amendment means. with respect, i disagree that what we are seeing is the first invading debating -- economic regulations. is invading free speech. -- it is invading free speech. economic citations and interests all the time. the best selling book in the country is the bible. the bible remains protected by the first amendment, notwithstanding the fact that people buy and sell it for money. i think what we are seeing is a broader recognition that the first amendment means what it says, and we do not need to enter -- need to interpolate into the first amendment, let the government get away with more than we would just because we are worried that people who
are engaged in speech are also engaged in earning an honest living by speaking. mr. rosen: thank you so much for that. scott, now the last word is to you. why is this case important, and why should our great viewers care about it? mr. mcnamara: well, i guess i would take issue with robert on this first point. i think this case is very much about robo calls. and robert said earlier, and i agree with him, that it would be insane to strike down an entire statute rather than just a little part of it that makes it unconstitutional. that would be the case where the court would excise the small portion. i think it would be insane to say that robo callers have free phoneso invade our cell without restriction, nearly
because congress 25 years into this very important consumer protection statute added this provision, which, at best, is and according to the challengers in this case, is unconstitutional, but does not render the basic statute, protecting americans against a very obtrusive and obnoxious technology, it does not render that whole project unconstitutional. withf we are stuck unrestricted robo calls as a result of congress's addition of this exception, that would be a result that would be bad for everybody in this country. mr. rosen: thank you so much, robert mcnamara and scott nelson, for vigorous, full, and illuminating discussion of these
crucial for some m&a issues. dear c-span friends, national constitution center friends, thank you for joining during this exciting educational experiment this week for the first time in american history, the supreme court broadcasting live oral arguments, and you joined along with us, carefully digging into the oral arguments and trying to make sense of them. part of some homework on all of our parts. we had to listen closely to all of these arguments. i hope you followed my stern exhortation and did some homework by reading the briefs in advance, which is really the best way to do the -- understand the argan it's. we had these -- understand the arguments. and we had these very thoughtful discussions afterwards. i have emerged from this first week of experiments with renewed respect for the court's deliberation, the seriousness in which they conduct them, and the need for all of us to take time to educate ourselves about these crucial cases so that we can have informed opinions about
them. your homework over the weekend is obvious. read the briefs for next week's cases. there are important ones involving presidential subpoenas, more cases involving religious liberty. if you set aside some time -- and i know you can do it and you will -- go to the great educational resources at the national constitution center. our interactive constitution brings together the top liberal and conservative scholars in the country to write about every clause of the constitution, describing what they agree about, and what they disagree about. it is such a font of light unconstitutional learning to have access to this free tool. and there is the we the people podcasts i host every week, which is in this very format. we will run this format, where i call up a liberal and conservative scholar on both sides of constitutional issues in the news, we have a reasoned, civil discussion, i think you just heard today. we are providing a model of constitutional discourse, and
for spreading much constitutional light in the spirit of justice brandeis, who we heard mentioned several times today. i want to thank robert mcnamara and scott nelson, and let us end with the inspiring words of brandeis. if we govern by the light of reason, we must let our minds be bold. robert mcnamara, scott nelson, thank you so much for joining. thank you c-span
to put -- they pledged to support. you can watch live coverage of sex week's supreme court oral argument by teleconference on the season network, >> earlier today at the white house, secretary mnuchin stopped by to speak with reporters. the first question was about members of the coronavirus task force being in self pointing while efforts were underway to reopen businesses in some states. here is that now. sec. mnuchin: i don't think it changes the push to go back to work in any way. we have been consistent and the president has been consistent barely want to open the economy way.clear and economic there are some parts of the country where that would be
getler and when people do people get exposed to the virus they should self-quarantine and protect others from getting it -- getting it. --does it with a worker in at risk? sec. mnuchin: one of the reasons why we are able to hear and know people have been in self-quarantine because of testing. i spoke to doctors who had vaccines in trials and i couldn't be more optimistic. when the president says he thinks we will have a vaccine by the end of the year, i think that is very important. the viral's that are also in urgent.
the american public wants to know if they get these disease there are things that can protect him, including more ventilators, hospital supplies and better drugs. that sayare reports there's more consideration for stimulus checks. is that on the table question mark -- is that on the table? sec. mnuchin: is something that is on the table want to thank the congress for acting on an emergency basis. we now have $3 trillion we are putting into the economy. a lot of that is just getting into the economy. we are working with federal reserve on another three train dollars of facility and the quiddity's. these are beginning to have a positive impact -- and liquidity . these are begin each have a positive impact. before we go back and rush another bill, we want to be thoughtful. >> are you having negotiations this week? sec. mnuchin: i would