NICK EICHER, HOST: It’s Monday morning and welcome to The World and Everything in It. Today is the 11th of January, 2021.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
I think many people are left stunned by the riot in the Capitol last week, indeed by the riots of last summer. Simmering anger boiling over into chaos.
Despite it all, our institutions have held and maybe we take some comfort in hearing the work of our U.S. Supreme Court justices. They’re back to work today to hear oral arguments, by phone, as they have since May.
For today’s Legal Docket, the two remaining arguments I’ve yet to cover from 2020.
First, the case of Facebook v Duguid. You might imagine this must be about fake news or censoring conservatives. But it isn’t. It’s about robocalls. You know, those automated telephone calls that deliver a recorded message, typically from a political party or telemarketer.
EICHER: You may remember that the justices decided a robocall dispute last term. Back in that case, the court struck down part of the federal law against robocalls—in particular that part that carved out an exception for collecting government-backed debt.
Here in this case, a man named Noah Duguid hadn’t been hearing from debt collectors. Instead, he heard from Facebook. The social-media giant sent him repeated notifications that someone was trying to access his account.
Which was weird to Duguid because he’s never had a Facebook account.
He requested that the notifications come to an end. But they didn’t. And so he sued under that robocall law enacted back in 1991, called the Telephone Consumer Protection Act.
REICHARD: That’s a bit of a mouthful, so I’ll ask you to remember the initialism TCPA. Telephone Consumer Protection Act, TCPA.
It bans dialing systems that can “store or produce telephone numbers to be called, using a random or sequential number generator.”
And it’s got teeth, pretty sharp ones: penalties as high as $1,500 per unsolicited contact.
But Facebook says it’s not breaking that law, according to its interpretation of that language. Its lawyer, former Solicitor General Paul Clement, led with a lesson not from law school, but from grammar school:
CLEMENT: Under ordinary rules of grammar, a restrictive modifier that follows two disjunctive verbs modifies both, not just the second one. Three features of the statutory text here reinforce that conclusion. First, the punctuation.
Now I have to confess: when I heard “disjunctive” and “restrictive modifier” my mind immediately left the room.
But here’s what he’s saying. The law has a limiting phrase in it: and it’s this, “using a random or sequential number generator.”
Clement argues that gets Facebook off the hook, because it doesn’t use random or sequential number generators.
What happened to Noah Duguid is his phone number likely got recycled from someone who did have a Facebook account. It’s a tiny fraction of people and not at all what this law aimed to stop.
That’s Facebook’s basic position. Here’s Duguid’s position as expressed by his attorney, Brian Garner.
GARNER: Congressional purpose is overwhelmingly clear. It’s privacy. Let me focus, though, on text. The issue here involves ordinary lexical meaning, grammar, and cognition. An example: To maintain or acquire lands to be developed using eminent domain. No linguistic rule should lead us to conclude that we must maintain lands using eminent domain.
Garner’s no slouch in judicial persuasion; he co-authored books about interpreting law with the late Justice Antonin Scalia.
Two highly skilled advocates arguing opposite sides over a law that hasn’t kept up with technology.
Several justices seemed to want to throw up their hands.
Justice Clarence Thomas:
THOMAS: So technology has changed and moved along very rapidly. Don’t you think it’s rather odd that we are applying a statute that’s almost anachronistic, if not vestigial and to modern technology like Facebook and instant messaging, et cetera? Don’t you think that at some point there’s at least a sense of futility?
Justice Sonia Sotomayor pointed a finger at Congress:
SOTOMAYOR: If what Congress wanted to do was stop a call that was automatic, and that’s what it accomplished, wouldn’t it be its job, not ours, to update the TCPA to bring it in line with the times?
And Justice Samuel Alito opined if only the court had power to declare a law obsolete, this one would be a fine candidate.
But the court doesn’t have that power. So the justices spun various scenarios to test whether Facebook’s unwanted messages fall under what the TCPA says.
Justice Elena Kagan tried to parse the grammar with a different example. She posed a scenario to Facebook lawyer Clement:
KAGAN: So here is the sentence: It is illegal to stab or shoot another person using a firearm. And what I want to know is, would I be covered if I stabbed somebody with a knife?
CLEMENT: I think you would, Justice Kagan. You would obviously be covered if you stabbed somebody using a bayonet, I suppose, but there are certain combinations of words where the mind just sort of rebels at the combination of the two words.
Lawyer Garner, opposed to Facebook, argued that the Federal Communications Commission made clear what makes auto dialing automatic: no human intervention.
Facebook sent messages to stored numbers; no human placed that notification to Duguid. So, Facebook should pay up under the terms of the TCPA.
But that only seemed to muddy the waters. Justice Samuel Alito pointed out that every computer involves human intervention at some level, even if just booting it up. Where’s the line?
Justice Amy Coney Barrett took it further:
BARRETT: What about using the auto-reply function on an iPhone? So I can set that up to say do not disturb me, I’m driving, or do not disturb me, I’m sleeping. And I can program the phone and it just comes with the phone, it’s not special software, to be sent to my favorites or to all my contacts. So is that the necessary human intervention? I’m not pressing a button each time.
The justices sounded frustrated. They worried about making everyone a criminal who has a smartphone. They struggled with what the most natural meaning of the language would be for an ordinary person. Consumer groups warn that a victory for Facebook will unleash a torrent of annoying messages without recourse.
The circuits are split on the matter. Some say equipment that dials automatically from a stored list violates the law; others say only devices that use a number generator violate the law.
One thing’s certain: the justices wish Congress would do its job and update this law to suit today’s technology.
OK, this final argument is about arbitration, a frequent flyer at the Supreme Court. Arbitration is an alternative way to resolve disputes without going to court. It’s faster and cheaper. But the details of arbitration still get fought out in court, as in this case that’s before the justices a second time.
Justice Sonia Sotomayor nailed down the problem:
SOTOMAYOR: Almost all agreements say any disputes related to this contract are subject to arbitration. And almost inevitably, a party will come in and say this dispute is not related to a contract.
Here, two companies that distribute dental equipment entered into a contract that included an arbitration clause. A dispute arose over who gets to decide what’s arbitrated and what should go to court.
In 2019, the Supreme Court held that in this case arbitrators, not courts, ought to decide whether an arbitration clause applies to a dispute. That, even if a court thinks the argument for arbitration is wholly groundless.
The question this time around is more narrow: if a contract has an arbitrator decide things in general, with carve-outs for certain kinds of disputes apart from the rest, who decides whether the carved-out disputes are arbitrable?
Maybe Justice Stephen Breyer speaks for you right about now.
BREYER: All right. I had a hard time because of the words “arbitration,” “arbitrability,” it’s sort of like it’s hard to keep all this in my mind, okay?
I think the court will favor arbitration in this one. The justices have been friendly toward it, unless there’s “clear and unmistakable evidence” not to.
However the court decides, this 8-year-old litigation shows that the more specific an arbitration agreement is, the better it works.
And that’s this week’s Legal Docket.
(AP Photo/J. Scott Applewhite, File) This Nov. 5, 2020 file photo, shows the Supreme Court in Washington.
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