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

Editor’s Note: This is a live feed that will be updated continuously during the argument. If new content does not load, refresh or revisit the page for the latest updates. Earliest posts at the bottom. Live blogs begins at 7 am eastern and will continue until concluded. 

8:26– All done folks. Thanks for being with us. See you in a couple hours on the webinar. This is a closer call than I thought it was going to be. Really need to dive in here.


OVERALL IMPRESSIONS: not sure what was more foreign to these Justices– the technological issues or the arcane rules of grammar. Everyone seemed out of their depths at some point during this argument. Really interesting to see how everyone seems to struggle with the TCPA.

8:21: Clement rebuttal– its not impossible to store using a random or sequential number generator. Superfluity is worse for them than for us.

8:20: Garner closes– this case is not about cell phones calling, it is about cell phones being called. In Barr this court said that debt collectors arent free to send in the robots. Facebook wants to send in all the robots for calls. Fitting that they close with a “big tech” boogie man push. Made good use of AAPC.

8:19: Garner– yes, I dont broadly support synesis but here you should apply it.

8:19: Barrett– isnt that contrary to your whole grammarian point more broadly?

8:19: Garner– it is a legal concept and it has been applied many times by this Court.

8:18: Barrett– nevermind you swung and missed. Switch gears– has any case ever actually used synesis? You and Scalia don’t talk about it in Reading Law. Is it a legal concept? is it appropriately applied in the law?

8:17: Garner– there are difficult cases and shades of grey. the clean bright line test that congress devised is consent. Completely missed the point.

8:16: Barret– explain it. does auto-reply trigger human intervention?

8:16: Garner: programming is not human intervention.

8:15: Barrett is up: Human intervention– what is it?

8:15: Garner: they are. there was a great deal of variation amongst the states. the federal statute is very nuanced and represents compromse.

8;15: Kavanaugh: state statutes aren’t probative are they?

8:14: Kavanaugh’s points are interesting. This picks up on Clement’s argument– if TCPA is about privacy why would Congress not protect landlines from ATDS calls?

8:13: Kavanaugh: This is about privacy right? garner: yes. Kavanaugh: but then the ATDS prohibition does not apply to callsto the residence. that suggests that the ATDS prohibition is about something other than privacy. Garner: different protections given in different ways. Garner weak on general policy issues, much more comfortable in grammarian arguments.

8:12: Garner: Yes your honor.

8:11: Kavanaugh: text matters but how did statute work in 1991 vs how it works now. Assume a robocall is just pre-recorded calls. The TCPA still covers those if ATDS goes away right?

8:10: THIS IS THE CRITICAL POINT OF THE ARGUMENT– Gorsuh hammers Garner on the fact that the word “automatic” is not in the definition of ATDS. That was a huge exchange. Gorush points out it is Garner that is adding words– not on the issue of random or sequential number generation but on the issue of dialers

8:09: Garner: Human intervention. Gorush: ok but why does that matter under the statute? Garner: to make sense.. Gorsuch: where does it exclude human activation? The human has to have the CAPACITY to store and CAPACITY to dial, it doesnt say it has to do it by itself. Garner: (on the ropes) well but human intervention is needed. it is not considered automatic when you place the calls. Gorsuch: Congress can define anything it wishes– here it defined it to mean the CAPACITY to dial the stored equipment.

8:08: Gorsuch: Runs way from last question. But let’s talk about re-dial capabilities of phones. Why doesnt this statute make a criminal of us all?

8:08: Garner: NO your honor. You have it wrong. The general rule is the opposite and the exception to the rule you note is foreign to grammarains.

8:06: Gorsuch: You conceded that the grammar here is “awkward.”  grammar doesnt exhaust meaning. Fine. but this is so awkward you’d re-write it if it were given to you. Rules of grammar usually indicate that a clause offset by a comma it would modify both prior verbs

8:05: Garner has the wind knocked from his sails. he’s flailing a bit trying to explain that the Marks interpretation is not anti-gramatical,

8:04: Kagan: the meaning here is not so impossible–using a number generator to store numbers can be explained. Facebook’s reading isn’t as bad as the example you hand out. “Shoudn’t we go with that meaning when conbined with the fact it is the most gramatically proper way of reading the sentence.”

8:04: Garner: ok, I have a better one for you. Lands being maintained with eminent domain.

8:04: Kagan: You’re cheating. You moved words around.

8:03: Garner: No. There is nothing ungrammatical about our interpretation. Perhaps a little awkward.

8:02: Kagan: Don’t you agree that your interpretation is anti-grammatical? The grammar favors Facebook, right?

8:02: Garner: consent matters. if you text your friends everyone has consented.

8:02: Sotomayor: I dont see why we would want to make Americans liable for normal use of cell phones and that’s what you’re asking us to do.

8:01: Garner: My bad.

8:01: Sotomayor: huh?

8:00: Garner: Article III judges know how to deal with frivolous claims. We all have potentially deadly weapons in our homes but good americans don’t use their ropes or kitchen knives inappropriately.

8:00: Sotomayor: if we rule your way everyone with a smartphone is subject to the harsh penalties of the TCPA. Can you give me an example as to why Congress would have interpreted it. And dont say “it hasnt happened yet” because they will follow.

7:59: Garner: clicking a button works or a mouse.

7:59: Alito: what degree of human intervention?

7:59: Garner: yes but human intervention at time of dial is what matters

7:59: Alito: but all computers require some degree of human instruction.

7:58: Garner: no. “Your honor no.” The normal use of a phone does not trigger the statute because of human intervention– “anything that requires the push of a button” does not trigger the statute.

7:57: Alito: Not sure courts have the power to interpret a statute as obsolete. we have not claimed that power and if we don’t, we have to put out of our minds, social media and the like. Need to look at the statute as it existed in 1991. But what about call forwarding?

7:56: Garner: I like the fixed meaning canon, but congress looks like future seeers here with how they drafted the statute.

7:56: Breyer– so often we read a statute dynamically to apply to new circumstances. Why not use changed circumstances? This is a clear shot at textulist interpretation. 

7:55: Garner– reading the statute narrowly would wither and contract the entire statute

7:54: Breyer– so at first there were both kinds of bad dialers and congress wanted to cover both kinds. but not we all use technology covered by the broader

7:54: Garner– there were both types of systems.

7:54: Breyer–were there a lot of these? what was the situation like in 1991?

7:53: Breyer–where does it say automatic in there? Oh I see it.

7:53: Garner: not quite right

7:53: Breyer– as you read it it is unlawful to call a phone that stores telephone numbers. period

7:52: Garner– I hesitate to talk about legislative history but lists came up 200 times and generators came up only 4 times

7:52: Thomas– in the old day the number would be randomly generated. but today they would not be

7:52: Garner– the average American is very familiar with robocalls and does not care what technology was used based on sold data.

7:52: Thomas– dont you think it is rather odd that we are applying an old statute to modern technology? Futlility?

7:51: Garner– big tech is boogie man. they know where everyone is at all times. TCPA more important than ever,

7:50: CJ– does it matter what people know about technology today vs what they knew in 1991?

7:49: Garner– no way. if you look at it hastily perhaps. but readit carefully and it means what we say it means.

7:49: CJ– yeah lawyers too. but don’t we do a “first blush” reading.

7:49: Garner– regular readers are befuddled by. legal words

7:48: CJ– we wouldn’t be buried in robocalls because of pre-recorded calls? Arent pre-recorded calls robocalls?

7:48: Garner: not a bad idea your honor.

7:48: CJ– isnt most useful rule of construction to take a poll of 100 readers?

7:47: CJ– you agree we want to get to the most natural reading. Garner: yes your honor (first direct answer today). CJ– speakers don’t apply grammar rules right? Garner: you dont use a spatula to lift a pan

7:46: Garner– viperin interpretation–like a viper it kills the statute and privacy

7:46: Garner– the cannons matter. words only do “real work” when you read it our way. First mention of Barr– Court found TCPA applies to almost all robocalls

7:45: Garner– what matters here is privacy. no linguistic rules should lead us to absurd results. “ordinary meaning” is what matters.

7:44: Ellis– you could strike the entire ATDS definition and reach the Marks view. WOW NOT SURE ABOUT THAT ARGUMENT,

7:44: Ellis– there’s no superfluity warranting disregarding the rules of grammar. there is superfluity both ways and our way is merely a belt and suspenders approach.

7:43: Ellis– no outstanding agency interpretation so we did not address these issues.

7:42: Barrett: Chevron deference matter here? Implicit delegation from vague. This doesn’t seem to be an implicit congressional choice to delegate. Suggests that this is unambiguous.

7:41: Ellis: goes off in the wrong direction and is immediately stopped. Kavanaugh: “do you think they meant and rather than or and made a mistake?”

7:40: Kavanaugh: back on ill fit. Long question. I didn’t rally catch the thrust.

7:38: Ellis: its like a generator in your home that generates and stores electricity.

7:38: Ellis: I would point you to the Pace and Noble systems amicus briefs– YOU GO GUYS! (Let’s hope there’s something in there on this. hahaha)

7:37: Gorsuch: What evidence do you have that dialers can ever store using a random number generator?

7:37: Ellis: there may have been some. not sure.

7:37: Kagan: there were no predictive dialers that leaves a message? This feels like a trap.

7:37: Ellis: Congress covers pre-recorded calls even if not made with an ATDS. Tells Kagan “No” it does not use a pre-recored voice or predictive dialer.

7:36: Kagan: why regulate if pre-recorded unless ATDS?

7:35: Ellis: same problem dealt with in a different way. Focused more on pre-recorded calls than on ATDS calls. Congress’ approach is somewhat broader.

7:34: Kagan: state statutes defined an autodialer to include achines that didn’t randomly call. Doent that suggest your definition is wrong? Would congress really want to depart from all other states? Strong question here.

7:34: Ellis: “use” of ATDS capabilities has not been considered one way or the other. This is a look at the Allan case.

7:33: Sotomayor: could a suit against smartphone users really prevail since the phone is not actually used to automatically dial?

7:31: Aito– (plainly unimpressed): Well what is wrong with the word “produce” as they interpret it? Ellis: it could mean bring forth or present instead.

7:31: Ellis– just belt and suspenders. I think it “probably doesn’t mean create.” not sure this answers the question.

7:31: Alito: How can you win if it is impossible to store numbers using a generator?

7:31: Breyer: No questions.

7:31: Ellis– sorry dude you must still engage with the text

7:30: Thomas– you missed my point. we are making great effort to interpret a statute that simply does not cover the technology at issue.

7:29: Ellis–what the statute covers is technology that is gone. thats a success. no need to update the act. Missed the point.

7:29: Thomas– “ill fit” between statute from 1991 and current technology. Cell phones were the size of “loaf of bread” when TCPA passed. At what point do we simply say “this statute is an ill fit for current technology?”

7:28: Ellis– what matters is what the statute meant in 1991.

7:27: CJ– should consequences of interpretation matter? or is it just text?

7:27: Ellis– there’s not a lot of room. but we let the FCC take a swing anyway.

7:27: CJ– if it begins and ends on he text then how can the FCC say anything on the subject?

7:26: Ellis– “outs is by far the more natural one.”

7:26: CJ– is this a plain meaning case?

7:25: This is where nerves kick in. the guy is moving so fast you can barely absorb his points.

7:25: Ellis up– DSG moving WAY TO FAST. Slow down big guy.

7:24: Clement: Congress does not put an elephant hole next to a mouse hole. if congress intended to protect the homefront it would have used atds as to landlines as well. Weird to close with intent. but that’s what he did. Good argument.

7:22: Barrett: how does emergency purposes exemption work? Clement: it just does. Barrett: yeah but there doesn’t seem to be very wide applicability. Clement: i think there is a narrow band of ATDS emergency call so the exception does have force. but if you read the statute as a whole the exceptions are mostly for pre-recorded calls

7:22: I couldn’t tell if Clement was intentionally being disrespectful or just didnt hear him. but that was bad.

7:22: OH NO Clement speaking over the CJ

7:21: Kavanaugh: pre-recorded calls are already covered but the only additional calls would be ATDS calls. as to the special lized lines ATDS calls are added.

7:20: Clement: something called the first amendment your honor.

7:19: Kavanaugh: “I want to make sure I understand the structure of the statute.” With landline calls only pre-recorded calls are banned. Why didn’t congress ban ATDS calls?

7:18: Clement: if you can call numbers using a generator you can store using a generator, come on.

7:17: Gorsuch: “Barrett’s reading creates a problem–it is awkward to think of anything storing anything using a random generator…. ” If we adopt the fourth construction does it matter?

7:16: Clement: what superslage problem? We have the better side of this.

7:16: Kagan: suplersage problem folks?

7;15: Clement: You would definitely be covered if you stabbed someone using a bayonet. Holy smokes. Just laughed outloud.

7:14: Kagan: “it is illegal to stab or shoot another person using a firearm.” Would I be covered if i stabbed somebody.

7:13: Clement: Yes, Congress should do it but this isn’t just about smartphones. this is about how to interpret the statute. Not much value exchanged from this question in my view.

7:13: Sotomayor– isn’t the tpca outdated. when the act was passed smartphones didn’t exist. Isn’t it Congress’ job and not ours to bring the sttaute up to date.

7:12: Alito–a noted textulist–just dropped a bomb. The text might actually support Plaintiff. Can’t wait to see what he asks Garner.

7:12: Clement: punctuation matters.

7:11:Alito: does it make any sense to say something to “store” numbers using a random or sequential number generator. “Unless you can explain how a generator was used in the very process of storing–I think you have a problem.” WOWOWOWOWOW

7:10: Alito: people talk this way all the time and no one uses the rules of grammar. The way they do it is ask “what makes sense.”

7:09– Clement: powerful response– “there are a range of views on this court” as to how much anything other than text matters, He urges that everything points to Facebook’s position

7:09– Breyer: Forcefully telling Clement: Purposes. Consequences and Text all matter. This is payback for clement refusing to concede the issue to the CJ earlier. Told you he overreached.

7:08– Breyer: if a definition “produces a weird result that has something to do with interpretation doesn’t it.”  That’s Breyer for you folks.

7:08– Breyer: “My only question” is you say “it would be unlawful for a person to use a cell phone” to make a call under the TCPA if adopts Duguid’s position.

7:08: Thomas: what even is a number generator? Celement: any process that is part of the equipment–a “computer program.”

7:07: Clement picks it right up. If the Supremes hold texts are not calls it is another way to rule in Facebook’s direction. Smooth.

7:06: Hole smokes. Thomas’ first questions opens up a middle ground position. This is the first big moment.

7:06: Thomas up next. Asks about why text messages are a call. WOW. Didn’t see that coming

7:06: Clemenet: “don’t consider” the downside if the statute is not “re-written.” He’s swinging for the fences. He could have conceded that consequences of interpretation matter but he held firm  to “text only” approach.

7:05– Clement: “re-purpose the statute” and invites Court to “re-write” the statute

7:04– Clement: Synesis is “madness, with all due respect.”  it “empowers judiciary to re-write statutes.”

7:03– CJ Roberts– “look to the sense of the passage and not the syntax…. as a general matter he’s right isn’t he?”

7:03– no questions yet. already deeper into this presentation without being cut off than we saw in AAPC. not sure what this means.

7:03– Clement is rushing his point a bit. Slow down big guy.

7:02– Clement starts by reading the statutory definition.

7:01– 19-511 is called. Mr. Clement speaking

7:00– all right, its 7 am and the court is now in session. oyez oyez oyez!

6:58– about to start. our stats are booming. welcome to the show folks. the Archduke will be running his feed simultaneously. feel free to click back and forth here or read both when argument is over.

6:56– while we’re waiting, check out Facebook’s lead counsel Paul Clement. The guy was formerly a US Solicitor general. Real heavyweight.

6:53– talked to a prominent plaintiff’s attorney last night. he said was was going fishing today to soothe his nerves. pressure is really on.

6:51–here we go. I’m almost as nervous as if I was arguing this thing. Fun fun fun fun.



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