WASHINGTON (CN) — A techno-gaffe from Justice Stephen Breyer closed the circle Wednesday as the Supreme Court ended its first week of remote arguments with little sympathy for political consultants hampered by the federal ban on robocalling cellphones.
With few exceptions, the Telephone Consumer Protection Act has generally prohibited robocalls made to cellphones since the early 1990s. Violations carry not only the possibility of civil penalties of up to $1,500 per call but lawsuits from states, private citizens and the Federal Communications Commission.
"It's an extremely popular law," Chief Justice John Roberts noted this morning. “Nobody wants to get robocalls on their cellphone.”
Emergency calls and calls to which the person on the receiving end had consented have always been exempted from the ban, but Congress carved out a third category in 2015: opening the gates to allow automated calls meant to collect a debt either owed to or guaranteed by the U.S. government.
Casting their exclusion as a violation of the First Amendment, the American Association of Political Consultants filed suit the following year, joined by a group of pollsters and the Oregon and Washington state Democratic Parties.
Arguing that the inability to make robocalls makes their work more expensive and less effective, the groups contend that the ban fails to advance a significant government interest.
While the groups want the ban struck down all together, Chief Justice Roberts questioned why it would not be preferable to simply invalidate the 2015 amendment.
"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,” said Roberts.
Indicating some uncertainty in the federal government’s path to victory, however, several justices appeared skeptical that the First Amendment can tolerate a specific exception to the law that allows for automated calls made to collect government debts.
"Counsel, I don't see how you can escape a content-based distinction," said Justice Ruth Bader Ginsburg, who called into the arguments from the hospital after undergoing a nonsurgical gallbladder procedure Tuesday.
While the District Court determined the TCPA warrants strict scrutiny — the harshest courts can apply when evaluating free speech claims — it determined the law could survive because it was narrowly tailored and advanced an interest in "residential privacy."
The Fourth Circuit disagreed, saying the exemption for the collection of government debts undermined the purported government interest the law advanced. Instead of striking down the whole of the TCPA, however, the court severed the government-debt exemption and let the rest of the law stand.
Latham & Watkins attorney Roman Martinez argued Wednesday on behalf of the political groups that the government-debt exception proves that the government never had a strong interest in restricting robocalls.
It would be also be odd, Martinez argued, for the court to strike down a law on First Amendment grounds with the ultimate result of restricting, rather than expanding, the scope of allowable speech.
"The core purpose of the First Amendment is to protect the free exchange of political speech, even when people might find that speech to be a nuisance," Martinez said.
In his brief to the Supreme Court, Martinez cited a 2016 study that found automated calls can boost voter turnout by as much as a full percentage point.
Justice Neil Gorsuch was one of the few justices who seemed to support Martinez's argument for striking down the entirety of the robocall ban.
"The government's remedy proposed here is essentially that we should suppose or reimagine that Congress would have preferred a regime in which more speech is suppressed than one in which less is suppressed," Gorsuch asked. "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?"
Deputy U.S. Solicitor General Malcolm Stewart argued that it would be imprudent to doom the entirety of a popular law that had withstood years of court challenges before Congress added the 2015 exception.
"We think there would be a tail wagging the dog quality to striking the whole restriction, one that has been in place for nearly 30 years, that has been popular with consumers and has protected a vast array of people simply to preserve the ability of government debt collectors to use one more means of communication," Stewart said.
But this concession that the federal-debt exception could not withstand strict scrutiny drew out Justice Brett Kavanaugh. Portraying the restriction as content-based, he said the case was one about severability.
Wednesday's arguments were the last in the first week of the court's foray into remote telephone arguments, with justices taking turns asking questions rather than the typical free-flowing arguments. More than 32,000 people have watched CSPAN's stream of the first remote arguments, which took place Monday. As of 2 p.m., just more than 6,000 people had viewed Wednesday's two arguments on the website.
While the arguments have generally gone smoothly, there has been the occasional misstep.
At one point on Wednesday, Roberts had to pass over Justice Stephen Breyer's turns for questions after the Clinton appointee did not respond when called at first.
When Breyer finally got his chance to question Martinez, he explained he missed his original spot in line because his phone rang and cut him off of the conference call.
"I don't think it was a robocall," Breyer said, laughing to himself.
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