CZAR FEED: Squire Patton Boggs Partner Eric J. Troutman Provides Live and Unscripted Analysis of SCOTUS TCPA Oral Argument

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9:56: We’ll have analysis up for you by the end of the day.

9:55: And that is that. Case submitted.

9:52: Petitioner up for rebuttal: Intermediate scrutiny applies without exemption. Interesting argument that using an exemption to enhance level of scrutiny on statute disincentives exemptions and leads to the restriction of more speech.

9:51: Respondent: Closes with reference to Martin case– I agree. This is a best case.

9:51: Kavanaugh: If you lose this case Congress can scale back an overbroad restriction… again calls TCPA “very popular.”

9:50: Kavanaugh: “one of the more popular laws on the books…want to argue against that common sense?” Respondent: TCPA is “poster child” for lawsuit abuse.

9:49: Kavanaugh: If there had never been an exemption is restriction unconstitutional? Respondent: Yes, due to deferential restriction on landlines. (TERRIBLE ARGUMENT– come on guys. ATDS definition is vague and overly broad.)

9:48: Kavanaugh: Is the underlying restriction constitutional without the government baced debt exemption.

9:47: Kavanaugh up: On severability we have no precedent either way. And the question is… level up or level down as remedy.

9:45: JUST KIDDING I’M BACK: Looks like we’re wrapping up argument.

9:42: ALL RIGHT FOLKS– that’s the end of my feed. Archduke will keep going. We’ll have a rundown with a huge podcast and a definitive analysis of the argument to you shortly. THANKS for tuning in!

9:41: CZAR FEED CUT OFF. Archduke is still reporting while I try to get back up and running.


9:37: Breyer: telephone rang and cut me off. I dont think it was a robocall.

9:36: Respondent. “trying to turn strict scrutiny into a rubber stamp… Right thing to do is strike down statute.” BOOM

9:34: Sotomayor: “Assuing that there is a restriction that could survive strict scrutiny under your claim. why shouldnt we limit any remedy striking down this provision simply to permit the types of calls that your clients make.” INTERESTING– first look at a middle ground here, carving out political speech from TCPA.

9:34: Respondent: “Some restrictions would satisfy the appropriate level of scrutiny.”

9:33: Sotomayor up: “Are you taking the position that all restrictions of robocalls are unconstitutional…?”

9:32: Alito: this thwarts a clear articulation of Congressional intent. Respondent: *in essence* Yep.

9:31: Respondent: starts by arguing hypothetical exemption would be constitutional. But turning to congressional intent– Respondent says getting rid of the exception is not appropriate even where Congress very plainly ariculated an intention to sever the exception.

9:30: Alito poses a hypothetical where the Congress gives a clear articulation of a desire to strike the exemption is that ot the right remedy-i.e. does not the intent of Congress control here?

9:30: Alito up next. Phone chirp is heard as he speaks.

9:29: Breyer is up: He asks no questions.

9:28: Respondent: disagrees that is what TCPA was designed to prevent. Again goes back to privacy interest “not being strong enough.” Just arguing into a buzzsaw.

9:27: Ginsburg: “What congress wanted to stop were out of the blu calls…. [debt collection] calls are not out of the blue, they are simply a reminder..”

9:26: Ginsburg–attacks premise that the TCPA even applies to the government. Suggests this is just a manner restriction. Not content. This is the first we’ve seen of this argument.

9:25: Respondent has made a tactical decision to attack privacy as not being a compelling governmental interest. Why in the world are they doing that? Such a better argument on the vague and uncertain (ie. overly broad) contours of ATDS

9:24: Thomas: What would your argument would be if the exemption did not exist? Respondent: we would apply intermediate scrutiny… statute would not survive. NOT focusing on vagueness and breadth. Really disappointing.

9:23: Respondent: “What the exception does is it reveals the underlying insufficiency of the justification for the restriction.” I hate this argument. “Congress is saying that money is more important than privacy.

9:22: Thomas up: “The problem that I have, you just said that the real problem here is the restriction..but the focus here is on the exception… The problem is one thing… but the constitutional problem is really the exception… Why the restriction is the constitutional problem as opposed to the exception?”

9:21: CJ: Petitioner makes a “pretty strong point” and calls TCPA “extremely popular law.” There’s our first look at the Court’s take on the TCPA overall. As expected court wants to uphold the statute because it is a “popular” attack on robocalls (not true actually.)

9:20: Respondent: “Congress has exempted the speech that is most problematic.” Don’t love that argument. Political appellate throwing dirt on collection calls.

9:20: CJ says Congress does not have to do “everything at once” when regulating speech. Politely worded. Seems academic.

9:19: Respondent argues exemption’s existence proves that protecting privacy is not compelling. WOW. Didn’t see that coming. Respondent could concede privacy is compelling and still win on breadth. Surprised counsel went there.

9:18: Respondent still speaking. No questions yet. Diving into restriction not surviving strict scrutiny

9:17: Respondent is strong out of the gate. Focusing on the breadth of the restriction. No discussion of exemption.

9:17: Respondent up. Political speech at issue. TCPA bars them from using effective means to speak. But exceptions let government-approved speakers to use these methods.

9:15: Wrap up argument by Petitioner: re-visits the lack of a content-based restriction here. Petitioner is hanging their hat on that.

9:14: Kavanaugh: Your argument is that the “[e]ssential premise is that the underlying ban is thoroughly constitutional.”

9:14: Petitioner falls back on severability clause. That’s a desperate move in oral argument before the Supreme Court.

9:13: Petitioner argues that only option other than severance is to strike down “whole statute” and that’s not what SCOTUS should do. Folks, this is getting serious.

9:12: Kavanaugh up: “I think the government-debt exception is almost certainly content based. You don’t argue that it could satisfy strict scrutiny. Those two things make this a case about severability.”

9:11: Gorsuch: Wow. Now looking at separation of powers. Does court have ability to regulate speech under First Amendment? Should it not just enforce the First Amendment? Stops petitioner’s counter-argument–“the first amendment is about a guarantee of speech.”

9:10: Questions of nearly every Justice suggest that severance is the wrong remedy. But maybe that’s to be expected considering they are questioning petitioner.

9:09: Goruch: “They didn’t seek the relief and they dont have standing to seek that relief [striking the exemption]..should that tell us anything?” Wow. Biggest punch yet at the idea of striking exemption.

9:08: Gorsuch: “Irony of a First Amendment challenge leading to the suppression of more speech as a remedy…”

9:07: Petitioner is gaining steam finally. Pushing back hard on any review of ATDS restriction.

9:06: Kagan: “statute is not viewpoint based… but why not treat it the same way” as one that is.

9:04: Kagan up: “on the one hand the automated call restriction is the only thing prohibiting speech and on the other hand the exemption is the only thing that causes the constitutional issue in this case.”

9:03: Petitioner’s argument suggests that federal debt collection is compelling and is properly favored over commercial action. Could open the door to the argumnent that government speech can be permitted even where private speech is banned. I dont like it.

9:02: Sotomayor: “if this is content do you win [under strict scrutiny]?”

9:01: Sotomayor: “You havent shown me why government-backed debt calls are any different from commercial calls…” Her focus is plainly on exemption and why it cannot stand. She is pushing that all debt collection calls bother consumers, however. Interesting.

9:01: Sotomayor: “Counsel the difficulty in mind in this case has been just touched upon by Justice Alito… assume that this law is content based. I don’t see in the record any evidence by you of how small this exception is.”

9:00: Petitioner is really jammed up. Argues what challenger wants is irrelevant. NO good.

8:59: Alito: “In free speech case what complaining party is objecting to is a restriction on its speech… complaining party does not get what it wants” if severence takes place.

8:58: Advocate concedes: neither side has a case directly on point. This is truly issue of first impression for court in First Amendment. Huge deal.

8:57: Alito: severability issue is “fascinating”–“what is best precedent for application of severability analysis in case like this where arguably a regulation of speech is unconsttutional only because it containts a content based exception.”

8:56: Petitioner focuses on communicative content now. Kind of a change from its earlier argument on relationship.

8:556: Breyer focuses on economic regulation. very philosophical question.

8:55: Breyer: “what is content discrimination?”

8:54: Ginsberg: “switching to severance…” again suggests that severance is wrong remedy.

8:54: Already had more traffic on our site today than ever before. Again really appreciate all of you who are tuning in. Happy to be part of your day.

8:53: Petitioner is arguing that the “financial relationship” determines application of exemption. Bad argument (IMO.)

8:52: Ginsburg up (from a hospital bed?): “I don’t see how you can escape content-based distinctions.”

8:51: Petitioner’s counsel is on his heels but doing his best to suggest that cell phone users have same privacy interest. He is cut off.

8:51: Thomas asks about strict scrutiny analysis. Thomas says privacy interest “not nearly as great” with cell phones as landlines or “knock on front door.” Could be a set up —Martin v City of Struthers already held that restrictions on door knockers is not permissible under First Amendment.

8:50: Petitioner’s counsel is really struggling here. First two justices ask questions plainly suggesting that striking exemption is wrong remedy.

8:49: Justice Thomas up– remedy doesn’t seem to do anything for respondent to strike the exemption. “Seems to be taking speech away from someone who is not in this case.” WOW.

8:49: Petitioner turns to Congressional intent. “Tail wagging the dog” to strike down statute here. This is AMAZING folks.

8:49: “I wonder why in that situation the whole statute shouldn’t fall.” CJ’s words.

8:48: CJ cuts off argument– gets to severance question. “When we sever provisions its because they are illegal. here there is nothing illegal about the government-debt exception…” THIS IS HUGE.

8:46: Petitioner’s counsel trying to distinguish Reed. Seems like a long shot.

8:45: CJ says Reed plainly governs here in that content of speech in exemption is at issue. Seems to assure strict scrutiny will be applied here.

8:45: First question from CJ– “not looking at the content of the communication but rather more properly viewed as part of an economic relationship. don’t see how that gets you out of content category. still need to look carefully at what is being said…”

8:44: Focus moved to ATDS restriction now in petitioner’s argument.

8:43: Petitioner opens argument with focus on exemption.

8:42: Here we go. case just called to order.

8:39: Rebuttal argument in previous case.

8:34: Kavanaugh–most junior justice–is up. So this last argument will be wrapping up  shortly.

8:32: While we’re waiting, you may want to review some of my recent First Amendment analysis to prepare for this.

8:30: Previous argument is really running long.

8:26: If this current argument is any indication we will see a VERY VERY active panel. Advocate cannot get a word in other than to answer questions.

8:25: Still waiting for previous argument to end. Justice Kagan currently asking questions.

8:18: Incredible how much traffic our site is receiving right now. Great to have you all with us.

8:12: Justices are really testy with advocates in prior case. Will be interesting to see if that spills over to Barr.

8:09: We will have a podcast up breaking down the SCOTUS argument and a definitive piece analyzing the outcome of the argument ASAP.

8:08: Really proud to be here to bring this to you live. Please forgive any typos or grammar errors. Just going to be moving as fast as possible and sharing thoughts.

8:06: Ten minutes or so before the big TCPA oral argument begins. I’ll be updating this feed as quickly as possible once argument starts. Will post most recent updates up top.

7:59: Ok, I’m late to the party but the argument has not yet started. I’m excited for this folks. Be sure to check out our video podcast in the meantime.