An exception to the ban on robocalls that allows collection of government debt seemed likely to fall after U.S. Supreme Court arguments on Wednesday.
The political groups challenging the law say an exemption for government debt is a “content-based” restriction on speech. In 2015, the court said such restrictions were “presumptively unconstitutional.”
“I don’t see how you can escape a content-based distinction,” Justice Ruth Bader Ginsburg said from Johns Hopkins hospital where she’s being treated for a gallbladder condition. She echoed Chief Justice John Roberts who said he couldn’t see how the government could get “out of the content category.”
While there was broad agreement on that point, the justices struggled over what to do about it—strike down just that exception or the whole law?
The Telephone Consumer Protection Act was passed in 1991 and is “one of the more popular laws on the books because people don’t like cell phone robocalls,” said Justice Brett Kavanaugh. It broadly prohibits the use of automatic dialing technology to contact consumers.
In 2015, Congress amended the TCPA to add the government-debt exception.
“Federal courts cannot fix First Amendment violations by making more speech illegal,” said Latham & Watkins Roman Martinez, who argued for the groups challenging the law.
That’s what it would be doing if the court invalidates the exception—which actually allows more speech—but leaves the general ban in place, Martinez argued.
“Here, there’s nothing illegal about the government-debt exception. It just, when combined with the rest of the statute, makes the whole statute vulnerable,” Roberts said. “I wonder why in that situation the whole statute shouldn’t fall?”
Justice Clarence Thomas, who continued his streak of speaking up during the court’s arguments via teleconference this week, and other justices noted that it would be “odd” to simply sever the exception because that “doesn’t seem to give anything” to the challengers, even though they were successful in the case.
The statute survived judicial scrutiny for 25 years before the government-debt exception was added, showing that the statute can easily function without the exception, said Malcolm L. Stewart, arguing on behalf of the federal government.
“It seems pretty obvious that the way [Congress] would get rid of this exception, Roberts said—that is, just strike the offending part, and not the whole statute.
“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, Roberts said.
The “severability” issue was also key in the litigation against the structure of the Consumer Financial Protection Bureau, a case the justices heard earlier in the term. The challengers argued then that the limits on the president’s power to remove the head of the CFPB is unconstitutional and can’t be separated from the act, meaning the whole agency must be invalidated.
And severability will be at the heart of the challenge to the Affordable Care Act, which will headline next term. The argument there is that the “individual mandate” requiring Americans to buy health insurance is no longer valid, requiring the court to strike the entire healthcare law.
Wednesday’s arguments was the fourth argument conducted remotely this week as the justices abide by social distancing requirements.
Technical issues appear to be cropping up more frequently as the novel process goes along.
During Monday’s arguments, only Justice Sonia Sotomayor had issues while trying to ask questions. Presumably she hadn’t taken herself off of mute. “Sorry, chief. I did it again,” she said on Tuesday when she had the same issue.
But over the two arguments heard Wednesday, Roberts had to skip Thomas, who didn’t immediately respond, and Justice Stephen Breyer lamented that he’d been dropped from the call.
Roberts also had to admonish the justices to turn off their cell phones in between the arguments. And at one point while Justice Elena Kagan was asking her questions, the unmistakable sound of a toilet flushing was in the background.
The case is Barr v. AAPC, U.S., No. 19-631, argued 5/6/20.