Today, the Supreme Court heard oral argument by telephone, live-streamed to us eager listeners, in Barr v. American Association of Political Consultants.  Because this case was about a ban on robocalls, which, as Justice Kavanaugh mentioned, everyone hates, the Justices deliberated over pure, legal puzzles with no obvious political valence.  Instead of dividing the Court on a hot-button political issue, this case will accomplish something more fundamental and legally interesting.  The Justices must decide the correct conceptual First Amendment framework to apply to cases involving a bans on the “manner” of speech (here, automated calls are prohibited) where the statute later adds a “content-based” exception (except if the call concerns a debt owed to or guaranteed by the federal government).

Before tackling the legal intrigue of the case, I want to say a word about telephonic oral arguments.  The format, where the Justices each get about two questions and answers per side before Chief Justice Roberts firmly interrupts counsel and moves to the next Justice, has some virtues.   Each Justice must grapple with the weaknesses of both sides.  The format forces them to work together, ideology aside, to answer tough legal problems instead of fighting for air time.  The telephonic oral arguments are yet another example of how technology and social isolation have combined to make people kinder and more cooperative.  Of course, argument is less lively, and it is difficult to get too much momentum on any given topic, but the Chief has an uncanny way of stopping a litigant right when the attorney has provided a semi-satisfactory answer.   Plus, as an added treat, Justice Breyer was not on the line when it was his turn to ask Respondent questions because he received another telephone call, but, as he noted, not an automated call.

The fundamental legal irony of this case, noted by Justice Gorsuch, is that the Telephone Consumer Protection Act of 1991 was likely constitutional when first enacted, but presented serious First Amendment questions only when the statute was amended to allow for more speech.  The TCPA initially banned “any automatic telephone dialing system or an artificial or prerecorded voice” except automated calls initiated for emergency purposes or those authorized by consent.  Then, over 20 years later, Congress added an exemption for calls to cell phones “made solely to collect a debt owed to or guaranteed by the United States.”  At that point, what was essentially a content-neutral restriction on the manner of speech – banning robocalls – became the very thing free speech doctrine is most suspicious of – a restriction based on the content of the speech.  By allowing more speech, Congress had favored some types of speech over others.

An important idea behind treating content-based restrictions with “strict scrutiny” is that courts must demand equality among speech in order to preserve liberty.  Sometimes requiring Congress to restrict more speech is actually liberty-maximizing in the end.  If Congress knows it can carve out content-based exemptions, it can create broad speech restrictions and then just exempt speech it particularly favors for special treatment.  If Congress cannot engage in this tactic, perhaps it will not restrict speech in the first place.

Most Justices seemed to agree that the TCPA was now content-based, and dismissed the government’s argument that the exemption wasn’t restricting speech based on content but was merely regulating an economic relationship.  (Justice Breyer’s self-styled “somewhat philosophical question” about whether all economic restrictions are content-based didn’t seem to gain much traction with the other Justices.)  Given that content-based restrictions receive strict scrutiny, and most Justices did not believe the statute could currently survive that level of rigorous scrutiny, the animating question became whether the entire TCPA needed to be struck down, or whether the court could simply sever the unconstitutional exemption.  The Justices were keenly aware, as evidenced by their questions, that severing the unconstitutional exemption would restrict even more speech as a remedy to a First Amendment violation.

The severability question is also fascinating because if the unconstitutional exemption is simply severed to save the statute, then the litigants really had no incentive in this case – or in future cases like this – to bring this type of lawsuits.  The plaintiffs in this case are political groups who would like to engage in automated calls, and they can do this only if the entire statute is deemed unconstitutional.  If the statute survives with the 2015 exemption severed, their victory is worthless.  In cases like this, where a speech exemption renders a statute content-based, there may be no one willing in the future to challenge the statute if the solution is simply to sever the exemption.  There is a strong preference, in other contexts, for a court to sever a statute instead of invalidating the whole thing.  Further, the government argued, perhaps legally correctly, that this incentive structure should not affect the underlying legal doctrine, but free speech is the area where legal rules involving standing are most relaxed in order to incentivize people to challenge potentially unconstitutional speech regulations.  Several Justices worried about the “who will sue” quandary.

Ultimately, the Court will have to decide whether the entire statute is unconstitutional or simply the 2015 debt-collection exemption.  To do this, the Court will need to pick an appropriate conceptual framework:  (1) looking at the statute as a whole or (2) focusing on the exemption.  Looking at the statute as a whole, the TCPA, with the exception, is now underinclusive.  If a statute is underinclusive, meaning that it restricts less speech than is necessary to accomplish its interest, that is a decent indication that Congress was not serious about its purported compelling interest, here, privacy in the home.   Statutes that are underinclusive often do not survive strict scrutiny.  The debt-collection exemption allows speech that undermines one of the main reasons for enacting the TCPA, to protect consumer privacy against burdensome telephone calls.  Debt-collection calls are some of the most burdensome and privacy-intruding calls.

However, looking at just the exemption might be the appropriate conceptual framework because the exemption was not added until two decades after the statute was enacted.  This means Congress probably wasn’t using a consumer-protection motive pretextually to block particular speech and then simply add an exception for its favored speech.  Indeed, this case does not fit within the paradigm of content-based restrictions that truly raise concerns about government censorship.

My prediction is that there will be sufficient votes, independent of ideological affiliation, to strike down the entire TCPA.  The Justices seemed concerned about future cases (or simply future hypotheticals), where an initially content-neutral statute becomes content-based in a way that does favor political speech, such as an exemption for calls raising money for a particular political party.  However the Court decides this case will be instructive in solving important underlying conceptual puzzles.