Legal Docket - Can Congress outlaw robocalls?

MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 8th of June, 2020. 

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. As you heard at the beginning of the program today, we are in our June Giving Drive. WORLD is a nonprofit organization devoted to biblically objective journalism that informs, educates, and inspires. And we depend on your support to keep going.

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EICHER: You can give online at wng.org/donate. And you can track progress online. We’re praying for $850,000 in the month of June. We did start the drive last week and we’re over $170,000 so far. Again, wng.org/donate.

REICHARD: Now, on to oral arguments. Only three remain. Today, a dispute over something most of us will recognize.

AUDIO: [SOUND OF ROBOCALL]

EICHER: I have just the Seinfeld quote for you. 

REICHARD: Because of course you do!

EICHER: Here’s how you handle these calls…

AUDIO: Just a sec. Hello?

Hi, would you be interested in switching over to TMI long distance service? 

Oh, gee, I can’t talk right now. Why don’t you give me your home number and I’ll call you later?

Well, I’m sorry, we’re not allowed to do that. 

Oh, I guess you don’t want people calling you at home. 

No. 

Well, now you know how I feel.

REICHARD: Standup comedian. Quick on his feet!

Listen to the way Chief Justice John Roberts announced the case heard by teleconference.

ROBERTS: We’ll hear argument next in case 19-631 William Barr Attorney General versus The American Association of Political Consultants. Before we get started I’d like to remind everyone to turn their cell phones off.

This was the second day of arguments by phone, and some user difficulties arose. Have a listen:

ROBERTS: Justice Breyer? Justice Breyer? Justice Alito?

Not to worry, though. The chief came back around to him—but first, imagine Seinfeld going to law school…

ROBERTS: Thank you, counsel. Justice Breyer?

BREYER: Yeah, thank you. I’m sorry. The telephone started to ring, and it cut me off the call. And I don’t think it was a robocall. [Laughter] And we got it straightened out.

On to the background of this case.

Public outcry over robocalls prompted Congress in 1991 to pass the Telephone Consumer Protection Act. It forbids a business, debt collector, political activist, or charity to call you, unless you consented before by giving out your number. 

The law had teeth: You can sue harassing telephone callers. According to the Cato Institute, 21 cases over the past 10 years have settled for over $10 million.

EICHER: Few problems with that for 23 years. But then Congress amended the law to make an exception for calls made “to collect a debt owed to or guaranteed by the United States.” 

A group of political consultants sued, arguing the whole law is an unconstitutional restriction on free speech based on its content, or the message conveyed. That’s a big no-no per prior Supreme Court opinion, because the government is not neutral. It has a proclivity to pass laws that benefit speech it likes and disfavors speech it doesn’t like.

REICHARD: The U.S. Court of Appeals for the Fourth Circuit acknowledged that. To “fix” it, that court struck down the debt collection government exception part, and kept the rest of the law. 

But that meant more speech was restricted than before!  

So, the federal government appealed to the Supreme Court, arguing that government debt exception to robocalls is content neutral, having to do with other factors like the economic activity of the caller. Not the message itself.

One thing is quite clear: the justices like the ban on robocalls. You’ll hear it in these three clips from the chief justice, and justices Sonia Sotomayor and Brett Kavanaugh:

ROBERTS: It’s an extremely popular law. Nobody wants to get robocalls on their cell phone.

SOTOMAYOR: Any schemes to get money. And there’s so many scams from robocalls.

KAVANAUGH: This is one of the more popular laws on the books because people don’t like cell phone robocalls. That seems just common sense. Do you want to argue against that common sense?

It’s not so easy to argue against common sense. But that’s what the lawyer for the political groups had to do: argue that the whole law is unconstitutional. 

Here’s that lawyer for the political groups, Roman Martinez. You’ll hear him say “TCPA,” and when he does you’ll know that’s the Telephone Consumer Protection Act.

MARTINEZ: The TCPA bars them from using some of the most effective tools for communication now available: automated text messages and calls to cell phones. At the same time, the statute’s exceptions let government-approved speakers use these same technologies to deliver government-approved messages.

Put that way, it does seem like a slam-dunk, impermissible content violation. And most of the justices seemed to agree. 

Listen to Justice Ruth Bader Ginsburg admonish the lawyer for the government:

GINSBURG: I don’t see how you can escape the content-based distinction. If the content is a debt owed to the government, that’s the content of the message, you owe the government for a student loan or whatever, then the call is okay. But, if the message is, please contribute to our political organization, it’s banned. So it’s based on what the message is. 

And Justice Stephen Breyer had a much bigger, more philosophical inquiry:

BREYER: My question is what is content discrimination? All human life is carried on through speech. All government regulation is carried on through speech. Every single statute book is filled with all kinds of content discrimination. The SEC and every agency deals with nothing but what do their rules apply to, where are the exceptions, etc.

In answering him, Martinez for the political groups urged a distinction between commercial regulations of speech and speech subject to strict scrutiny.

Lots of back and forth over whether the appeals court could just lop off that offending government exception. The government argued of course it can; Congress put a severability clause right in the law itself. Besides that, the law went for years without that exception and worked fine. Just don’t strike down the whole thing. 

But the political groups emphasized that Congress can figure out other anti-robocall measures. And then it could craft a more tailored approach that wouldn’t violate free speech.

Justice Ginsburg seemed to work both sides of the case in this comment to Martinez for the political groups:

GINSBURG: What Congress wanted to stop were out-of-the-blue calls, calls that you had no reason to anticipate. And calls about debts owed to the government can be regarded as less invasive in that respect, that they’re not out of the blue; they are simply a reminder of an obligation that the debtor undertook. 

Americans really do love this law. I know I do! But fundamental freedoms and technical legalities are the tools of the law trade. 

The justices have a much bigger case on their hands than it might first seem. This is about more than only robocalls; however the justices decide, the principles they lay down will affect other kinds of speech.

As Garrett Epps at The Atlantic wrote, this case offers “a good way for the court to become the least popular institution in America: by making it decide that Americans have to live with unsolicited, repeated prerecorded calls—so-called robocalls—to their cellphones.”

And that’s this week’s Legal Docket!

(AP Photo/Andrew Harnik) Security officers, one wearing a mask, walk in front of the Supreme Court, Thursday, May 14, 2020, in Washington. 

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