Editors Note: This is your definitive guide to the big SCOTUS oral argument today. For our live and unfiltered thoughts on the argument as it unfolded see here and here. Additionally we will have a VIDEO podcast discussing the SCOTUS argument up this week. Check back for more.
Well folks, today was the big dayoral argument took place in Barr v. AAPC and it did not disappoint.
With the advocates and the Supreme Court Justices including Ginsburg who called in from a hospital bed calling into the hearing by phone the stage was set for a robust back-and-forth between the advocates and the Justices, who asked questions in order of seniority.
What emerged over the hour-long argument was the tale of a stark choice: strike down the entirety of a beloved statute (the Telephone Consumer Protection Act) whichat least according to popular fiction combats robocalls or sever an unconstitutional exemption to the TCPA and forever set precedent allowing courts to expand unconstitutional restrictions on speech by judicial fiat.
What a choice!
Remarkably there is ZERO case law directly on point here as the advocates both acknowledged in their arguments. That leaves the Supreme Court justices with a blank slate to draw on in formulating the proper dimensions of First Amendment scrutiny where a content-neutral restriction on speech contains an unconstitutional, content-specific exemption. That also makes AAPC v. Barra huge casenot just for the TCPA for First Amendment precedent and our freedom of speech as a whole.
While it is always dangerous to draw conclusions from oral argumentjustices notoriously will ask questions that do not ultimately tip their hand we think the tea leaves here are pretty safe to read to some degree. Here are our TOP 10 takeaways from the big AAPC v. Barr TCPA review.
1. The TCPAs Government-Backed Debt Exemption is Dead:
If there was any doubt that the government-back debt exemption might be upheld going into the oral argument, the questions of the Justices seem to put those doubts to bed.
The exemption was already limping when, ahead of oral argument, the government conceded away the position that the government-backed debt exemption does NOT survive strict scrutiny. That left it in the difficult position of arguing that the exemption was not content-baseda real stretch.
The Court did not seem impressed. Several of the justices expressed an outright rejection of this concept from the bench, highly suggesting that the government-backed debt exemption is a goner.
Justice Kavanaugh was, perhaps, the most direct of the justices in his remarks, commenting:
I think the government-debt exception is almost certainly content based. You dont argue that it could satisfy strict scrutiny. Those two things make this a case about severability.
-Justice Kavanaugh commenting at oral argument in AAPC v. Barr, May 6, 2020.
Bye bye government-backed debt exemption.
2. Striking Down the Entire TCPA is Very Much on the Table:
As noted above, the Supreme Court Justices really seem to be struggling with the idea of striking down the entire TCPA. Nonetheless, that appears to be one of the stark and few choices available to SCOTUS in addressing the Respondents meritorious First Amendment challenge to the TCPAs government-backed debt exemption.
Chief Justice Roberts himself set the stage for the possibility that the TCPA might fall in its entirety early in the argument:
I wonder why in that situation the whole statute shouldnt fall.
-Chief Justice Roberts commenting at oral argument in AAPC v. Barr, May , 2020.
The situation the Chief Justice was analyzing was one where an exemption is perfectly legal standing alone but only becomes legal with reference to a restriction (remember when the Archduke analyzed that issue?):
When we sever provisions its because they are illegal. here there is nothing illegal about the government-debt exception
-Chief Justice Roberts commenting at oral argument in AAPC v. Barr, May 6, 2020.
3. The Justices Seemed Deeply Concerned With Expanding an Unconstitutional Restriction on Speech as a Remedy for a Successful First Amendment Challenge
The most common category of questions posed to both advocates involved the irony of expanding an unconstitutional restriction on speech as a remedy to a successful challenger of a speech restriction. As several justices noted, this is not an equal protection casewhere severing exemptions can make everyone equalbut rather a direct First Amendment challenge where the challengers substantive right to speak has been infringed.
Justice Gorsuch framed issue perhaps best of all when he noted the:
[i]rony of a First Amendment challenge leading to the suppression of more speech as a remedy
-Justice Gorsuch commenting at oral argument in AAPC v. Barr, May 6, 2020.
He also delivered a powerful blow to the idea that severence is the proper remedy to a First Amendment violation by pointing out that the Respondents neither sought the remedy of severence nor had standing to seek it, even if they wanted it:
They didnt seek the relief and they dont have standing to seek that relief [striking the exemption]..should that tell us anything?
-Justice Gorsuch commenting at oral argument in AAPC v. Barr, May 6, 2020.
And Justice Alito was in clear agreement:
In a free speech case what the complaining party is objecting to is a restriction on its speech [if severance is applied] the complaining party does not get what it wants
-Justice Alito commenting at oral argument in AAPC v. Barr, May 6, 2020.
4. The Justices Also Seemed Concerned that Striking the Exemption Would Take Away the Rights of Non-Parties to the Case
The Justices also recognized that striking an exemption would result in the rights of non-parties to the case being taken awaya deprivation of both due process and a substantive right to speak. Indeed, Justice Thomaswho is renowned for rarely speaking at oral argumentstated matters bluntly remarking that severing the restriction:
seems to be taking speech away from someone who is not in this case.
-Justice Thomas commenting at oral argument in AAPC v. Barr, May 6, 2020.
5. The Supreme Court Justices Are a Big Fan of the TCPA For Some Strange Reason:
If anyone thought the Supreme Court might not like the vague and unwieldy restrictions of the TCPAguess again. Over and over again the Justices heaped (undeserved?) praise upon the statute, suggesting that it was responsible for preventing unwanted robocalls.
Chief Justice Roberts began the praise when he called the TCPA an extremely popular law in response to a comment by Respondents counsel that it ought to be struck down.
Then there was this gem:
The TCPA is one of the more popular laws on the bookswant to argue against that common sense?
-Justice Kavanaugh commenting at oral argument in AAPC v. Barr, May 6, 2020.
6. There Was Not Much Discussion of a Middle Ground:
As noted above, the choice before the Supreme Court appears starkstrike down the TCPA entirely or expand a restriction on speech to the assistance of none and the detriment of non-parties.
Indeed, throughout the entire argument there was only ONE reference to a possible middle ground and it seems an unlikely one. Specifically, Justice Sotomayor suggested that the proper remedy might be to somehow carve out political speech from the reach of the TCPA. Her words:
Why shouldnt we limit any remedy striking down this provision simply to permit the types of calls that your clients make?
Justice Sotomayor commenting at oral argument in AAPC v. Barr, May 6, 2020.
7. The TCPAs Chances of Survival Were Greatly Helped by the Identity of the Respondentand the Tactical Choice to Diminish the Value of Privacy in Challenging the Statute:
It is said that bad facts make bad law and this case may end up adding further proof to that adage.
If the TCPA survives SCOTUS review in Barr v. AAPCit will almost certainly beat least in partbecause the Respondent was attempting to defend unsolicited out of the blue calls, rather than targeted specific calls to, for instance, customers of a business. But preventing random-fired out of the blue calls is precisely what Congress wanted to stop when it enacted the TCPA in the first place.
Whereas a business making targeted calls could easily argue that the TCPA is overly broad as applied to themagain it was designed to prevent the nuisance and intrusion of random-fired calls not expected contacts from businesses the Petitioner in this suit (apparently) did not feel comfortable making a similar over breadth challenge. Instead its counsel focused again and again on the government lacking a compelling interest in protecting privacy. At one point counsel argued that the interest in protecting privacy is just not strong enough to justify the TCPAs restrictions.
You read that right. Respondents primary argument as to why the TCPA does not survive First Amendment review is because privacy is not really that big of a deal anyway.
Eesh. I mean. Come on.
But giving the argument its due, Respondent contends that Congress showed it did not really care about privacy in enacting the TCPA when it amended the statute in 2015 to exalt the collection of money over protecting consumers. If privacy was all that compelling Congress would never have made that choice. I mean, right?
Hmmm. I dont know. Probably would have been better if the Respondent could have faithfully argued that the TCPAs vague and unwieldy ATDS restriction covers way more speech than necessary to accomplish the statutes stated objective, a point Justice Ginsburg herself recognized:
What congress wanted to stop were out of the blue calls. [debt collection] calls are not out of the blue, they are simply a reminder..
-Justice Ginsburg commenting at oral argument in AAPC v. Barr, May 6, 2020.
Ugh. What might have been.
8. The Government Was Very Concerned that the Supreme Court Might Focus Scrutiny on the ATDS Restriction and not the Exemption
The Respondent was not alone in making some interesting tactical choices. The DOJs SGarguing in support of the TCPAs constitutionality as Petitionerkept answering the question that no one was asking: does the TCPAs ATDS definition survive First Amendment review?
Over and over again throughout the argument and in discussions with virtually every justice, the Petitioners counsel hammered that the ATDS restriction survives the appropriate level of scrutiny. This is true although there was barely a whisper from the justices on the issue.
Without a doubt both the Respondents brief and TCPAWorld.com focused much fire on the ATDS restriction and the need to apply scrutiny to the restriction rather than the exemption, but the Petitioners focus on this issuewhich seemed a phantom before a court obsessed with severability seemed an odd choice. (It may, however, prove to have been tactically brilliant iffor instancethe Court elects to sever and still reviews the TCPA under intermediate scrutiny.)
9. This is a True Issue of FirstImpressionWhich Means the Ruling Could Have Huge Impact on our Freedom of Speech Moving Forward
Throughout the oral argument multiple justices and the advocates themselves remarked that there was really no direct precedent available to guide the issue of severability. As we have written repeatedly, never before has the Supreme Court struck an exemption in order to expand a statute as a remedy to a successful First Amendment challenge.
As Justice Alito framed the issueafter calling it fascinatingthe question is:
what is best precedent for application of severability analysis in case like this where arguably a regulation of speech is unconstitutional only because it contains a content based exception.
Justice Alito commenting at oral argument in AAPC v. Barr, May 6, 2020.
As already noted above, the Supreme Courts take on this issue will set incredibly-important precedent that will determine the way lower courts are to apply First Amendment principles for decades to come.
10. There Was Very Little Discussion of the ATDS Definition But that Doesnt Mean it Wont Get Resolved on This Appeal
One of the key things we were looking for is whether and to what degree the Supreme Court justices were focused on applying scrutiny to the ATDS restriction. Based on the questions of the justices there appears to be very little focus on that issue in this appeal.
Nonetheless, as the Court grapples with the difficult and stark choice presented by this appeal, the common sense solution available to it may still find its way into a majority opinion: apply strict scrutiny to the TCPAs ATDS restriction, read it narrowly, and uphold the statute intact.
That was my prediction going in to oral argument andalthough I concede the likelihood of that prediction coming true took a hit todayit still seems the easiest and most logical resolution to the difficult questions posed byAAPC v. Barr.
- Argumentative Essays on Importance of Freedom of Speech ... - May 9th, 2021
- Does Freedom of Speech Exist - Emerging Media - Loyola ... - May 9th, 2021
- Opinion: The past year has underscored the need for vigilance in defending the First Amendment - Poynter - May 9th, 2021
- Big Tech and freedom of speech | News, Sports, Jobs - The Sentinel - Lewistown Sentinel - April 23rd, 2021
- House Bill 22 Raises Concerns for Police Reform Efforts and Freedom of Speech - WKSU News - April 23rd, 2021
- The Supreme Court Justices Are Set to Hear Two Very Different Free Speech Cases What You Should Know - Law & Crime - April 23rd, 2021
- The Russell Group's statement of principles on universities protecting freedom of speech - FE News - April 23rd, 2021
- Should satire be protected as free speech? - Aliran - April 23rd, 2021
- James Acaster Never Wants to Make an Audience Member Cry Again - Vulture - April 23rd, 2021
- Wave of New 'Anti-Riot' Legislation Threatens Free Speech - The Daily Beast - April 19th, 2021
- A Festival takes on the complicated topic of Freedom of Speech in the U.S. and France - Frenchly - April 19th, 2021
- Historic Figures Who Recognized That Speech Is Freedom's First Line of Defense | Lawrence W. Reed - Foundation for Economic Education - April 19th, 2021
- My Turn: What does a paper owe its readers? - The Recorder - April 19th, 2021
- Analyzing the Recent Sixth Circuits Extension of Academic Freedom Protection to a College - Justia Verdict - April 19th, 2021
- Does Daniel Andrews have new bars on free speech coming? - The Spectator Australia - April 19th, 2021
- Lessons on Free Speech from the Soviet Union - kvor - March 31st, 2021
- When Neville Chamberlain tried to 'no-platform' the Yorkshire Post - The Conversation UK - March 31st, 2021
- The precedent of free speech on campus | The Record - The Record - March 21st, 2021
- Intermediary Liability and Why Free Speech in Software Matters - The Wire - March 21st, 2021
- A look back at a conversation with Carl Hiaasen on free speech - WMFE - March 21st, 2021
- Holmes' defense of Freedom of Speech | Columnists | willistonherald.com - Williston Daily Herald - March 18th, 2021
- My Turn: Our biggest threats to free speech - Concord Monitor - February 14th, 2021
- Q&A: Sociologist with Specialty in Right-Wing Movements on Free Speech and the First Amendment | Newsroom - UC Merced University News - February 14th, 2021
- Gavin Williamson set to appoint free speech champion with power to fine universities - iNews - February 14th, 2021
- Letters: The limits of free speech and the dangers of violence and insurrection - The Advocate - February 14th, 2021
- Free Speech Arguments Against Trump's Impeachment Dishonor The First Amendment - People For the American Way - February 6th, 2021
- The Wall Street Journal Misreads Section 230 and the First Amendment - Lawfare - February 6th, 2021
- After Thomas furore, Bar says to balance free speech and fair trial - Free Malaysia Today - February 6th, 2021
- Reggie Jackson blasts Curt Schilling over Hall controversy: Freedom of speech got you freed out of the Hall of Fame - The Boston Globe - February 2nd, 2021
- Opinion: What the Biden Administration Can Expect To Meet in Court - Prescott eNews - February 2nd, 2021
- Academics should put freedom of speech in the context of other values (opinion) - Inside Higher Ed - January 29th, 2021
- Forum: Freedom of speech should be exercised with responsibility - The Straits Times - January 29th, 2021
- Free Speech and the Question of Race - Los Angeles Review of Books - lareviewofbooks - lareviewofbooks - January 29th, 2021
- Free speech and the responsibilities of social media companies: When should political speech lose its protection? - ABC News - January 29th, 2021
- Does Freedom of Speech Exist in Cryptocurrency Communities? - hackernoon.com - January 29th, 2021
- Absolute Freedom to Tweet? Employers (and the NLRA) May Have Something to Say About It - Lexology - January 29th, 2021
- Complaints about Trump Twitter ban aside, there is no absolute right to free speech - The Fayetteville Observer - January 29th, 2021
- Students quit free speech campaign over role of Toby Young-founded group - The Guardian - January 9th, 2021
- Houston congressman confronted while flying back from D.C. - KHOU.com - January 9th, 2021
- Heartland/Rasmussen Polls on the Great Reset, Socialism, and Free Speech - The Heartland Institute - January 5th, 2021
- Freedom of speech falling victim to PC intimidation - Queensland Times - January 1st, 2021
- First Amendment issues won't go away in 2021 - Sunbury Daily Item - January 1st, 2021
- Kathleen Stock: Professor made OBE calls Stonewall threat to free speech - PinkNews - January 1st, 2021
- Brooks: The Sidney Awards - The Register-Guard - January 1st, 2021
- Know the difference between facts and opinions - Gasconade County Republican - January 1st, 2021
- Forget Balloons and Follow South Korean Politics Properly - Foreign Policy - January 1st, 2021
- DeWine signs bill that protects students' free speech - The Highland County Press - December 26th, 2020
- Putin, Charlie Hebdo, and Free Speech - The National Interest - December 26th, 2020
- Is Freedom Of Speech In Danger In Taiwan? The CTi Ruling From A Legal Standpoint - The Taiwan Times - December 26th, 2020
- Poland threatens hefty fines for social media companies that censor legal speech, users everywhere celebrate - RT - December 26th, 2020
- Year-ender 2020: From access to internet and free speech to land acquisition, a look at 5 key verdicts by Supreme Court - Jagran English - December 26th, 2020
- Americans treasure freedom of speech but not to harm others - Minot Daily News - December 19th, 2020
- Right to free speech will be respected in any hate crime law - Law Society of Ireland Gazette - December 19th, 2020
- Ronnie Kasrils | Against the witch hunt and in defence of free speech - News24 - December 19th, 2020
- Hate Crime Bill: SNP is being taught a lesson about the value of free speech Murdo Fraser MSP - The Scotsman - December 19th, 2020
- Report: 88% of universities restrict expression, nearly half restrict online speech - Washington Examiner - December 19th, 2020
- The Freedom Babbleon, an Online Event Celebrating Freedom and Free Speech to Take Place This Saturday - PR.com - December 19th, 2020
- Cambridge may have won the battle for free speech - but this war is far from over - Telegraph.co.uk - December 19th, 2020
- Section 230 and the Whole Internet | Cato @ Liberty - Cato Institute - December 19th, 2020
- Hollis: Will Joe Biden have a 'Catholic problem'? - The Winchester Star - December 19th, 2020
- Republican members of Oversight and Reform Commission demand emergency hearing about online censorship - NorthcentralPa.com - December 19th, 2020
- The Soapbox: The unraveling of the American media corporation - The Cross Timbers Gazette - December 19th, 2020
- The Julie Burchill Affair: why mocking Islam is not hate speech - TheArticle - December 19th, 2020
- Free speech stops at the boundary of giving offence to religion: Shanmugam - The Straits Times - November 29th, 2020
- Scotland pledges to review the hate crime law to ensure freedom of speech - Evangelical Focus - November 29th, 2020
- Britain needs to take a lesson from the US in protecting free speech - Telegraph.co.uk - November 29th, 2020
- WARD: Tolerance is a two-way street - University of Virginia The Cavalier Daily - November 29th, 2020
- Should Teachers Be Allowed to Wear Political Symbols? - The New York Times - November 29th, 2020
- 'The Short Life And Curious Death Of Free Speech In America' Examines The First Amendment - NPR - October 29th, 2020
- First Amendment Childrens Book Teaches a New Generation About Freedom of Speech - New Times Broward-Palm Beach - October 29th, 2020
- This is my freedom of speech - Newnan Times-Herald - August 26th, 2020
- BOOK REVIEW: Yes, I Can Say That is Judy Golds take on freedom of speech - Wicked Local Truro - August 26th, 2020
- KSL Investigates: Does armed protest have a chilling effect on free speech? - KSL.com - August 26th, 2020
- Free Speech Be Damned: Joshua Krook and the Australian Public Service - International Policy Digest - August 26th, 2020
- 'Freedom of Speech': Delhi Riots' Writer Was Lawyer for Petitioners Who Sought Cuts in Wendy Doniger Book - The Wire - August 26th, 2020
- Facebook Plans Legal Action After Thailand Tells It to Mute Critics - The New York Times - August 26th, 2020
- What Americans have to say about cancel culture - YouGov US - August 26th, 2020
- British think tank fronts right-wing academic freedom campaignPart 2 - WSWS - August 26th, 2020
- Gov. Evers condemns Kenosha violence after two nights of rioting - Ashland Daily Press - August 26th, 2020
- Austin Tong Has Done Nothing Wrong - The Observer - Fordham Observer - August 26th, 2020