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Archduke here. We are about 20 minutes away from the landmark Supreme Court argument in Barr v. AAPC, which will determine the future of the TCPA. I will be continuously updating this page with my latest thoughts — live and unfiltered. Feel free to leave questions and criticism — the less constructive the better — in the comments or via email: firstname.lastname@example.org.
12:55: That’s a wrap. The Court just adjourned. We will have detailed post-argument analysis — and a podcast — up today and tomorrow.
12:51: Big contrast between the Gov’t and Respondent. Resp. is focusing on broader First Am points while the Gov’t is getting into the narrow workings of the TCPA.
12:47 Kavanaugh — no precedent either way in a 1st Am severance case where the exemption allows more speech
12:46: Respondent points out that we don’t know how Congress would re-enact the statute without the gov’t backed debt exemption because the TCPA originally was designed at calls to landlines and calls to cell phones for which there is a charge. Congress might very well believe that the interest in collecting gov’t backed debt is so strong that it would not re-enact the call ban without an exemption.
12:42: In response, Respondent correctly points out that the exemption doesn’t go to the relationship. It goes to the subject matter of the call.
12:40: J Kagan — Wouldn’t the statute be saved by directing it at the economic activity involved –holders and gov’t debtors — rather than the subject matter of the call?
12:39: Breyer points out that he dissented in Reed. Asks why his concern for finding multiple fed regulations invalid. AAPC says most are not content-based.
12:38: Just got audio back
12:33: AAPC is focusing on the underlying restriction being unconstitutional. Not simply the severance. Interesting argument, but could create issues.
12:24: AAPC for some reason conceded that intermediate scrutiny would apply if the 2015 exemption wasn’t present. That could be an important — and possibly fatal — concession.
12:24: Editor’s note — the response to this concern should be that the exemption shows that the TCPA as a whole is so overbroad that it is unconstitutional.
12:23: J Thomas points out a possible flaw in AAPC’s argument — AAPC’s problem is with the restriction, but they argue that the exemption is the constitutional problem.
12:21: CJ Roberts hits congressional intent. Says TCPA is very popular and was in place for 25 years before the exemption
12:18: AAPC is taking a broader view of the constitutional problem. Focusing on the fact that a telemarketing statute is now being extended to political speech.
12:14: The gov’t is taking an interesting tact of focusing on the full 2015 public law, of which the exemption was a small part, rather than the broader TCPA.
12:13: Kavanaugh points out the obvious — this case is all about severability.
12:11: Gov’t is trying to make the case more of a routine severance issue. The Justices are hitting on the unique concerns of free speech cases.
12:05: J Kagan points out the obvious oddity in the case. The main statute restricts speech, but the exception — which allows certain speech otherwise exempt — creates the content based problem.
12:03: J Sotomayor also seems concerned with the effect of severance in this case
11:59: Gov’t points court to Equal Protection precedence for severance. There’s a reason for that — very little to no support for this type of severance in a First Am case.
11:56: J Breyer seems concerned with the impact of treating this as content based on other federal regulations.
11:52: J Ginsburg: I don’t see how you can escape this being content based.
11:51: Wow. Court questions the strength of the privacy interests in cell phones.
11:48: J Thomas — severance seems to be “taking speech away from someone not in the case.” Another important point. Severance usually appropriate when it would allow more speech, not less.
11:47: Court jumps straight to severance. Points out that nothing is illegal about debt exemption, which is the usual case for severance. This is a hugely important point and the case may turn on it.
11:45: Justices are pushing back on govt’s claim that the exemption is content neutral. That argument is the weakest part of the gov’t position but is necessary to avoid strict scrutiny,
11:43: Government just started it’s argument. Claims govt’t backed debt calls are less intrusive than other automated calls.
11:40: ACA case just wrapped. Should start any minute now.
11:30 Update: Breyer and Roberts will be two key Justices to watch. Both have a pragmatic streak and a history of creative interpretations to uphold federal statutes.
11:28: ACA argument is still ongoing.
The ACA argument is running long, but is super interesting for anyone tuning in.