Supreme Court Argument Hearings by Phone Transcript May 6

Speaker 1: (00:00) A severance question, you say that if this exception for government debt is found to be problematic, you should just sever that and keep the rest of the statute, but when we sever provisions, it's because they are illegal. Here there's nothing illegal about the government debt exception. It just, when combined with the rest of the statute makes the whole statute vulnerable. I wonder why in that situation the whole statute shouldn't fall. Mr. Stewart: (00:29) I guess the two things I would say are, first, it's important to look at the temporal sequence that produced the current state of affairs. That is the basic restriction was enacted in 1991 and the government debt exception was enacted in a separate public law in 2015 and- Speaker 1: (00:47) Okay I've got that. What's your second point? Mr. Stewart: (00:49) The second point is that the ultimate question of severability is one of congressional intent. What result would Congress have preferred and for purposes of determining what Congress would likely have preferred it seems really like the tail wagging the dog to say that we will treat Congress's desire to free collectors of government backed debts from these restrictions rather as taking pre-imminence over Congress's desire to protect all consumers from all other automated calls. We think Congress- Speaker 1: (01:21) Thank you, counsel. Justice Thomas. Justice Thomas: (01:25) Thank you chief justice. Mr. Stewart, it would seem a bit odd you suggest that we sever the exception, but here this remedy doesn't seem to give anything to a respondent. It doesn't add any more speech for that, for the respondent and it seems to be taking speech actually away from someone who's not in this case. Mr. Stewart: (01:50) I mean that may be true, but the court's task in determining the appropriate remedy is to kind of follow established principles of severability to look to [inaudible 00:02:02] of Congress's likely intent. And if the result is that the plaintiff at the end of the day doesn't get the practical result that it was looking for, that's not a reason to kind of rejigger the severable analysis. I mean it often is the case that a plaintiff can achieve a practical victory only by prevailing on both of two legal questions and sometimes it is a question both of the merits of the claim and of the appropriate remedy and if a court holds that, yes you are right, you've established the existence of a violation, but the statute read properly simply doesn't authorize the remedy you seek, that's one of the chances that the plaintiff takes when it pursues a claim that depends on prevailing on two separate legal propositions. Mr. Stewart: (02:49) But if the plaintiff persuaded the court as to one legal proposition didn't persuade the court as to a second proposition that was really essential to getting the practical result it wanted, that's not an unusual situation in the law. Justice Thomas: (03:02) So I'd like to shift gears and just ask the question about your strict scrutiny analysis. You seem to focus on the interest that the individual has in privacy of the cell phone. But it would seem to me that, that privacy interest is actually not nearly as great as you would as a person would have in the landline phone at home or even someone knocking on their front door. Mr. Stewart: (03:35) Well, at the time that the statute was enacted, cell phones were obviously a lot less prevalent. They may have been used on rare occasions and most people didn't own them. I think now cell phones as we explained in the reply [inaudible 00:00:03:50], are ubiquitous. They are an integral part of daily life for most individuals. And so really the privacy interest is greater than in the residential landline. Yes, if the phone rings at your home and you happen to be there, it may be an intrusion, but most people, virtually all people when they are at home will have their cell phones with them. So unwanted calls to cell phones will pose the same threat to residential privacy than unwanted calls to landlines would. Mr. Stewart: (04:20) But in addition, people for the most part carry their cell phones with them at all times. And so the effect of automated calls to cell phones is not just potentially to disturb residential privacy. It's potentially to disturb them when they're at work, when they're on social occasions, when for whatever reason they might want to be open to calls from friends or calls from family members but won't- Speaker 1: (04:44) Thank you counsel. Justice Ginsburg. Justice Ginsburg: (04:49) Counsel, I don't see how you can escape content based distinction. It seems the content is a debt owed to the government. That's the content of the message. You owe the government [inaudible 00:05:06] with a student loan or whatever, then the call is okay, but if the message is please contribute to our political organization. It is banned. So it's based on what the message is. Pay the government what you owe the government or contribute to our political organization. Mr. Stewart: (05:31) I think as we've said in our briefs, it is true that often a court in determining whether the government debt exception applied would look in part to the content of the call, but you wouldn't be looking exclusively to the content of the call. For instance, determination whether the particular debt that was sought to be collected was in fact owed to or guaranteed by the federal government would have nothing to do with the calls content. It depend on the financial relationship between the debtor and the federal government. And it is characteristic in the legal culture that Congress would enact statutes that regulate communications made in particular fields of economic activity. And so you have laws that regulate what can be said or what disclosures have to be made in connection with the sale of security and they're subject to first amendment challenge, plaintiffs can argue that particular restrictions go too far, but nobody thinks of laws like that as being, especially suspect because they are limited to the field of securities even though to determine whether a particular communication was covered, a court would need to look in part at the content of the communication. Justice Ginsburg: (06:44) Switching to the severance. We're told that if we strike only the government debt exemption that will leave the political groups with no incentive at all to assert their first amendment claim, so they're going to lose at the end of the day. So why should they bother challenging? Why should they bother with a first amendment claim when it will be unsuccessful at the severance stage? Mr. Stewart: (07:22) Well, a couple of responses to that. The first is as I was indicating earlier, the plaintiff's did argue and they were entitled to argue that the appropriate remedy if there was a constitutional violation was to strike down the whole restriction, but they didn't persuade the Court of Appeals on that question. And if the application of ordinary severance principles would confirm that result, then the court's duty is to follow those principles even though it leaves this plaintiff without a remedy. The other thing as we discussed- Speaker 1: (07:53) Counsel. Justice Breyer. Justice Breyer: (07:58) Well, with your last statement and Justice Ginsburg leads me to ask a somewhat philosophical question, which you need not answer if you don't want to, but 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 SCC and every agency deals with nothing but. What do their rules apply to? Where are the exceptions, et cetera. And so I'd always thought that, that was in Justice Brandis's third category, economic regulation as far as the first amendment is concerned or at least most of it was. So how in your view do you distinguish between what is in that third category look to see if it's reasonable? What is in the first category, never uphold it almost no matter what. How? What's your way of doing it? Mr. Stewart: (08:59) I don't think we have any succinct tests that we capture all cases, but I would point the court or remind the court of certain guideposts that it set up. One is if you can tell exclusively from the content of a message whether a particular law applies, then that's very likely or almost certain to be content based. The second is, as I was referring to earlier, the court in read referred to content based laws as those that target space that speak based on its communicative content and here even if you thought that the government debt exception was content based, it wouldn't follow that the automated call restriction is content based. The automated call restriction doesn't target speech because of its content. Mr. Stewart: (09:43) It treats the vast majority of speech, the same and it simply exempts from regulation a very small category of speech. And then the third thing I would say is whatever the right answer is, it can't be that whenever speech... The mere fact that a particular law is limited to speech that is used in a particular economic activity, that limitation cannot by itself be sufficient to render the law of content based or at least to subject to strict scrutiny because that principle would cast out on a vast array of laws that Congress and state legislatures have enacted that regulate the free spheres of economic activity. Speaker 1: (10:25) Thank you. Thank you very much. Speaker 3: (10:30) Mr. [inaudible 00:10:29]? Mr. Stewart the so called severability issue in this case is really fascinating and I understand you don't think we need to get to that, but assuming for the sake of argument that we do get to that question, what is your best precedent for the application of a severability analysis in a case like this where arguably a regulation of speech is unconstitutional only because it contains a content based or a viewpoint based exception. Mr. Stewart: (11:12) I don't think either side has a precedent that was specifically in the first amendment area where the court discussed whether severability principles should apply and if so, how do they apply? I think our best precedents are cases like Moralis Santana and Frost. Yes, those were equal protection cases, but they said in deciding whether an exception should be severed or the underlying rule should be struck down. We look at things like the temporal sequence in which the laws were enacted, whether the exception was enacted later in the day. The degree of Congress's commitment to the basic rule, and I think those are good analogies here where the [inaudible 00:11:52] of the first amendment claim is that this person speech is being treated differently from another person's speech. Speaker 1: (12:00) But what is your response to this counter argument? In an equal protection case, what the complaining party is objecting to is unequal treatment. So whether the remedy levels, upper levels down, the complaining party gets what it wants, mainly equal treatment. Whereas, in a free speech case, what the complaining party is objecting to is a restriction on its speech. And if we apply the severability analysis and that situation, the complaining party does not get what it wants, which is the ability to speak without restriction. Mr. Stewart: (12:40) I think with respect that conflates what the complaining party wants with what it is entitled to and for instance in Moralis Santana, there's no question that what the complaining party wanted was citizenship. The plaintiff wanted to be able to invoke on behalf of his father the constitutional right to equal treatment for unwed fathers and unwed mothers and yes, the gravamen of his claim is I have a legal entitlement to equal treatment, but what is a practical matter the plaintiff wanted was citizenship and he didn't get it as a result of the court severability holding. The court said we established principles of severability in order to determine what we think Congress would have intended and the consequences that even though you have established a violation of the right to equal treatment, you are not entitled to the practical result that you are seeking. Speaker 1: (13:39) Thank you counsel. Justice Sotomayor. Justice Sotomayor: (13:43) Counsel, the difficulty in my mind with this case has been touched upon by Justice Oledo. Assume that I do think or so not that I think, but assume that this law is content based. I don't see in the record any evidence by you of how small this exception is. The other side says that most of the complaints to the FTC are because of debt collection, but there are no statistics about how big or small debt collection is with respect to robocalls generally or with respect to consumer collection. And even if you could show me that they were a small part of the intrusions on people, they certainly are a big emotional complaint because they generate the most ire by citizens. But putting that aside you haven't shown me why government backed debt calls are any different than commercial calls. Private commercial calls for debt. Justice Sotomayor: (15:03) In both situations, the debtor would expect a call about that [inaudible 00:15:08]. That's an interest that the government's claim, but so what? Both debtors. So there is a discrimination aspect to this case that those raise the equal protection ground. But putting all of that aside, given that the burden is on you under strict scrutiny to show that you've narrowly tailored a law. If this is content base and with all the failings I pointed to, how do you win on validating this act? Mr. Stewart: (15:45) Let me say two or three things about this. First, I think it would be impossible to make an empirical showing about kind of the smallness of the exemption relative to the whole because what you would want to compare the government debt calls to is not to other calls that are actually being made in the world because a lot of the calls that would otherwise be made are not being made precisely because they're barred by the TCPA. What you would want to be asking is how small is how small is this class in comparison to all of the other automated calls that might be made if the TCPA were not enforced? Second, with respect to potential discrimination between collectors of government, backed debts and collectors of other depths. The distinction that we pointed to is that the collection of government backed debts implicates the distinct federal interest in protecting the federal FISC and it's not unusual for Congress to prefer federal debt collection efforts. Mr. Stewart: (16:44) For example, if Congress says the federal government can collect both debts owed to it by offset on a tax return, tax refund or social security benefits, but private creditors can't do that or if the federal government has greater capacity to garnish wages that there's something problematic about that. That the last thing we would say is lecturers of private debts could petition the FCC for an exception. They could say there's no good reason to treat us differently and therefore you, the FCC should exercise your statutory authority to create an exception for all debt collection calls as to which the recipient is not charher. And then the FCC would either grant or deny that if it was denied, there could be judicial review so there could be a more targeted challenge that was premised on the differentiation between government backed debts and others, but that's very different from- Speaker 1: (17:37) Thank you counsel. Justice Kagan. Justice Kagan: (17:39) Good afternoon, Mr. Stewart. Could we go back to what you started with? You said that there was no right way to think about how to analyze this question, that we could either apply constitutional analysis to the automated call restriction or we could apply it to the exemption for government debt. I'm wondering whether you could say a little bit more about that because we have to pick some way and on the one hand... Justice Kagan: (18:03) About that. Because we have to pick some way, and on the one hand, the restriction is the only thing ... the automated call restriction is the only thing prohibiting speech. But on the other hand, the exemption is the only thing that creates the constitutional issue in this case. Which end of the statute should we look at? Mr. Stewart: (18:20) Let me preface my answer by pointing to a hypothetical that's noted in the respondent's brief that we think is a good illustration of when it would be appropriate to focus on an exception. At page 22, respondents hypothesize a statute that has a categorical ban on all automated calls except for automated calls to a residential landline that endorsed the re-election of Donald Trump and that are approved by the Trump campaign. Mr. Stewart: (18:46) Now, we think of an exemption like that for calls made to endorse a single political candidate would surely violate the first amendment. It would be not only content based, but viewpoint based, and there'd be no good justification for it in terms of the basic rationale for the restriction. Even if the court concluded that this was a very small percentage of calls, the exception didn't cast out on the credibility of Congress's overall privacy protection objectives, even if it didn't significantly interfere with the achievement of those objectives, the court would surely say that the exception was invalid. Justice Kagan: (19:26) Is this statute like that statute? Mr. Stewart: (19:28) I don't think it's like that statute. Justice Kagan: (19:30) It's obviously not in the sense of it's not ... the exemption is not viewpoint based to the extent that, that statute is. You've heard some arguments that the exemption is content based, so why not treat it the same way? Mr. Stewart: (19:48) I think at the very most, you would treat the exemption in the same way that you would treat it if a restriction were imposed based on the same criteria. If there were certain restrictions placed on the collection of government backed debt and only on the collection of government backed debt, you wouldn't apply strict scrutiny to such a law for the same reasons I've discussed with respect to the securities laws, other hypothetical laws that could restrict communications in a particular area of commerce. Mr. Stewart: (20:21) Now, respondents have understandably focused their attention on the automated call restriction, in part because of the severability question. If they could persuade the court that the exception was the invalid provision and it was struck down, they wouldn't really get what they want, but they have to establish distinct prerequisites to show that they have a valid constitutional challenge to the automated call restriction. Mr. Stewart: (20:45) One might be if the exception taken in combination with other features of the statute just made it seem as though Congress wasn't serious about protecting privacy. But the exception really- Chief Justice Roberts: (20:55) Thank you, Council. Justice Gorsich? Justice Gorsich: (21:00) Good morning, Council. Some of my colleagues have already noted that the irony of a first amendment challenge leading to the suppression of more speech as a remedy. I guess I wanted to explore that just a little bit further. As I understand it, you've taken the position that there is no right way to do severance here, but should we take cognizance of the fact that striking down the government debt provision was not relief that the plaintiffs sought in this case? Justice Gorsich: (21:34) We normally make some cognizance of the adversarial process and the plaintiff's request for relief. Plaintiff's earlier in this term for not including all the relief they might've wanted in their complaint. What do we do about the fact as well that the plaintiffs would seemingly have no standing to challenge an exception for government debt collection activities? They didn't seek the relief and they don't have standing for this relief. Should those things tell us anything? Mr. Stewart: (22:10) I think that you could do it that way, and the Court of Appeals could have done it that way. That is, the principle argument that the respondents have made all along is that the government debt exception combined with other features of the statutory and regulatory scheme really call into question Congress's commitment to the protection of privacy or prevent the statute from achieving that objective. The court of appeals clearly didn't think that, that was right. The court of appeals could just have said, "That's the only claim you made. I reject it." Whether or not you could've pursued a valid challenge to the acception itself, you haven't sought to pursue one and therefore I'm not going to consider it. Mr. Stewart: (22:52) Given that the Court of Appeals ruled as it did, we have tried to confront that argument on the merits. With respect to the standing question, what ... the respondents have always sought as relief invalidation of the automated call restriction, and they clearly have standing to seek that. If the court holds that, yes, their right to the first amendment violation, but they are wrong about the remedy, that would not be a problem of standing, that would just be a problem on the merits of their claim or at least the merits of their claim with respect to the appropriate remedy. Justice Gorsich: (23:28) Let me come at it from yet another angle and that's the separation of powers. The government's remedy proposed here is essentially that we should suppose or re-imagined that Congress would have preferred a regime in which more speech is suppressed than one in which less is suppressed. What authority do we have the right to make that kind of judgment, as opposed to simply enforcing the first amendment, finding a violation, and liberating the speech that's been wrongly suppressed? Mr. Stewart: (24:05) Let me say two or three different things about that. The first are either invalidation of the exception or invalidation of the restriction would produce a constitutional version of the TCPA. From the standpoint of compliance with the first amendment, neither is to be preferred. The second thing is, courts face that same question when you're doing severability analysis in the equal protection context where the results of severance may be that particular individuals- Justice Gorsich: (24:36) If I might stop you there, I'm sorry, but the equal protection analogy, suppose that doesn't work for me because equal protection is a guarantee of equality, not of a substance. You can level up or level down and satisfy equal protection. But the first amendment is about a guarantee of speech. It has content in a different way. Suppose that- Mr. Stewart: (25:00) Let me say that- Justice Gorsich: (25:01) Then what do you have? Mr. Stewart: (25:02) I think what we have is the temporal sequence here where we had one public law in 1991 that enacted the basic autodial restriction, and then a second public law that was enacted in 2015. If there is a constitutional infirmity, if you ask which public law introduced that constitutional infirmity, it would have to be the 2015 public law. Chief Justice Roberts: (25:27) Thank you, Council. Justice Kavanaugh. Justice Kavanaugh: (25:30) Thank you, mr chief justice. Good afternoon, Mr. Stewart. I think the government debt exception is almost certainly content-based, at least for me, and I just wanted, as a matter of housekeeping, you don't argue that it could satisfy strict scrutiny, correct? Mr. Stewart: (25:47) That's correct. We've argued that the automated call restriction could satisfy strict scrutiny, but not the [crosstalk 00:25:52]. Justice Kavanaugh: (25:51) Okay. With Those two things together, I make this for me at least the case about severability and leveling up or leveling down. You were just on this with justice Gorsich, but it would help me if you could tick through your strong points about severability again. Mr. Stewart: (26:14) I think the two strongest points, and then I'll link to the second two, the communications Act severability clause. The two strongest points are we think there would be a tail wagging the dog quality to striking down the whole restriction. One that has been in place for nearly 30 years, that has been popular with consumers, that has protected a vast array of people simply to preserve the ability of government debt collectors to use one more means of communication. The second is the temporal sequence. If we ask which law was it that introduced any constitutional invalidity, it would have to be the 2015 law, not the 1991 law. It would be natural if you were otherwise an FFO just to say that's the law that would be struck down. Justice Kavanaugh: (27:03) Go ahead. Mr. Stewart: (27:04) I was going to say there is a separability clause that says if any provision of the communications Act of which the TCPA is as a part is held to be invalid, the remedy won't extend beyond striking down that provision. For purposes of determining which is the invalid provision, I refer back to my point about temporal sequence. It is a 2015 law that introduced any constitutional infirmity. Justice Kavanaugh: (27:28) A key point I think you just underscored there is that the premise of your severability argument, essential premise, is that the underlying ban is thoroughly constitutional. Mr. Stewart: (27:42) Or at least that the underlying band was constitutional before 2015. Justice Kavanaugh: (27:48) Without the exception. I meant to say without the exception, the underlying ban is perfectly constitutional. Mr. Stewart: (27:53) Yes. Justice Kavanaugh: (27:57) Okay. How much should we take into account on the what would Congress have intended? Analysis like we see in the States Attorney-General's brief about consumer beliefs about these calls that the common consumer complaint about robo calls. Does that go at all into our analysis of what Congress would have intended? Mr. Stewart: (28:29) I think certainly this was not unnoticed legislation. It's not legislation that fixed the technical problem. I'm talking about the original TCPA now that this is legislation that was intended to address a problem that Congress thought was immense that affected vast numbers of consumers, and obviously the Omecus briefs describe complaints that are being made now about robocalls, even with the TCPA's restrictions in place. Chief Justice Roberts: (28:56) Thank you, Council. Would you take a minute to wrap up, Mr. Stewart? Mr. Stewart: (29:01) Thank you. Thank you, Mr Chief Justice. The last thing I'd say is I'd refer back to the point that I was making at the beginning where given that respondent is asking the court to focus on the restriction and not the exception, it's appropriate to ask whether the restriction is content based as the court in Reid understood that term. The court in Reid described content based laws as laws that target speech based on its communicative context. Respondent speech was not targeted based on its content. It was treated the same way as the vast majority of messages that people could use automated calls to transmit. Thank you your honor. Chief Justice Roberts: (29:39) Thank you, Council. Mr. Martinez. Mr. Martinez: (29:46) Mr Chief Justice and may it please the court. My clients are political organizations that want to engage in political speech at the core of the first amendment. 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 statutes exceptions let government approved speakers use these same technologies to deliver government approved messages that subvert the same privacy interests supposedly requiring a ban on all other calls. This content based scheme arbitrarily favors commercial speech over core political speech. It violates the first amendment and should be struck down. Mr. Martinez: (30:26) The call band is extremely broad. Although the TCPA's primary purpose was to address telemarketing calls, the cell phone ban sweeps further and outlaws political and other non-commercial calls, even when citizens are open to receiving them. The government says Congress needed a restriction that broad in order to protect privacy. The statute's history disproves that. Congress and the FCC exempted non-commercial calls from the residential call ban after concluding that they do not adversely affect the privacy rights protected by the TCPA. There's no good privacy based reason for treating these exact same calls differently when made to cell phones. Mr. Martinez: (31:05) The government debt exception confirms that Congress did not view the privacy interest here as compelling. That exception exposes 60 million Americans to unlimited calls to collect more than $4.2 trillion in debt. Those are the kinds of calls consumers hate the most. If Congress really thought privacy was paramount, it would not have allowed those calls. Because the speech ban is too broad and unjustified, the restriction, not the exception, must be struck down. That's what the court has always done in first amendment cases and rightly so. Federal courts cannot fix first amendment violations by making more speech illegal. This court should reject the remedial approach that eliminates incentives to challenge unconstitutional speech bans, and gives my clients no relief even though they won their first amendment claim. Chief Justice Roberts: (31:56) Mr Martinez, I'd like you to focus on the argument based on our decision and Williams Yulee, which is that when Congress takes steps that help cure a constitutional problem, they don't have to do everything at once. You object to the fact that some speech is allowed, but the allowance doesn't reach more broadly. What we said in Williams Yulee, again, is so long as Congress is moving in what the court regard as the right direction, they don't have to do everything at the same time. The fact that you say we should allow more speech here, here, and here, again, it doesn't mean that it has to be done at the same time as the first step was taken as it was here. Mr. Martinez: (32:46) Right, your honor, and I think what the Williams Yulee inquiry is really getting at is whether exception undermines the credibility of the government's interest that it's been asserting. I think in this case, the 2015 exception really does undermine that, because it's not getting at ... it's not trying to exempt the least intrusive of privacy speech available. It's actually exempting the kind of speech that the FCC itself has acknowledged is the most intrusive kind of speech, and those are the debt calls. Mr. Martinez: (33:18) Williams Yulee I think is talking about a situation in which the government or Congress is ... or the legislature is trying to accommodate the speech that is least problematic from the standpoint of the interest that's being asserted. But here, Congress has done the opposite. It's exempted the speech that's most problematic. I think that really makes this a different case from Williams Yulee, and brings us squarely within the concern that Williams Yulee had, which is that when Congress enacts broad exemptions like the one here, it might actually be a sign. It might be evidence of the fact that the interest that the government has asserted for a speech restriction really isn't that strong. Chief Justice Roberts: (34:03) Your friend on the other side on the severance question makes a very strong point that Congress had this law for 25 years, and then they added this pretty discreet exception that created the problem we have today. It seems pretty obvious that the way they would solve it is get rid of this exception. It's an extremely popular law. Nobody wants to get robo calls on their cell phone. The idea that Congress would embrace that result simply to save this government debt collection, they'd have to be very anxious to be more unpopular than they otherwise would be. Mr. Martinez: (34:45) Well, two points on that, your honor. First of all, I think that the fundamental problem here is the invalidity of the restriction. Even before you get to any severability inquiry about intent, we have to be very careful and specific about what is unconstitutional about the statute. I think what the 2015 exemption shows, as well as the much more favorable treatment to political and noncommercial speech when it comes to calls to home phones, what those show is that the privacy interest here really isn't compelling, and that the restriction is what falls. You don't even need to look at severability. But even as to the intent- Chief Justice Roberts: (35:21) Thank you, Council. Justice Thomas? Justice Thomas: (35:24) Thank you, Mr. Martinez. The problem that I have is you just said that the issue, that the real problem here is the restriction. But the evidence, the focus here is on the exception. If you solve the exception problem, it doesn't solve your restriction problem. Particularly if you sever that. That's the asymmetry that's coming out that the problem is one thing that is that the restriction, but the ... Justice Thomas: (36:02) ... is that the restriction, but the constitutional problem is really the exception, so why don't you, I'd like you to explain what you just said, why the restriction is the constitutional problem as opposed to the exception? Mr. Martinez: (36:21) Right. Let me start with the two things that I think the exception does. Number one, is it introduces a content based distinction and it defines the scope the restriction, and therefore triggers strick scrutiny, but number two, and more importantly for purposes of our constitutional theory, what the exception does is it reveals the underlying frailty, the underlying insufficiency of the justification for the restriction. Why does it do that? It does it because you have Congress saying "Because we want to get more money, we are willing to trade off privacy for revenue," and so Congress is coming in and making a judgment that money is more important than privacy, and I think- Justice Thomas: (37:01) So what would your argument be if the exception did not exist? Mr. Martinez: (37:10) If the exception did not exist and we were looking at the law today, I think our argument would be weaker, but I think we would still be able to show that the restriction would be unjustified, and I think the main thing would be- Justice Thomas: (37:20) But what would the content be? What would the analysis be? Mr. Martinez: (37:24) The analysis, the statute would no longer be content based, so we'd be applying intermediate scrutiny, but I think in the context of applying intermediate scrutiny, we would look at the fact that calls to residential phones, calls to the home where privacy matters the most, these same types of political and noncommercial calls that my client wants to make are perfectly allowed, and so Congress and the FCC have made a judgment, and this is clear if you look at the 1992 order from the FCC, Congress and the FCC have made a judgment that non-commercial and non-telemarketing calls do not adversely affect the privacy rights that the TCPA protects, and they made that clear by essentially allowing those calls at all times of day to home phones, and so if you have that indicator of congressional intent, that they're not really worried about political calls and noncommercial calls, and they're not worried about that as an intrusion of privacy, then there's no rational reason to treat cellphones differently, and Congress certainly didn't make that judgment. Mr. Martinez: (38:26) Of course, in this case we have not only the differential treatment of residential calls, but we also have the evidence provided by the 2015 exception, which shows that they're willing to trade off privacy for money, even though everyone would agree that collecting more money is not a compelling interest, and so you have Congress- Chief Justice Roberts: (38:44) Thank you, Council. Justice Ginsberg? Justice Ginsberg: (38:50) Your challenge is predicated on the government debt exemption. I thought that the statute as originally enacted would ... The statute as originally enacted did have an exception for calls made by the government itself or a government agency, isn't that true? Chief Justice Roberts: (39:13) It's true that the definition of a person, or at least as interpreted by the FCC is that the statute does not apply to the government itself. Justice Ginsberg: (39:23) And no one challenged that exemption for 20 odd years. One characterization is that this is really a manner restriction, that is it doesn't prohibit calling, it doesn't prohibit conveying a message. It's just prohibits using a certain automated technology to call. So it's a manner of communication, it's not a restriction on the message. Mr. Martinez: (39:53) Well, Your Honor, with respect, I do think it's fair to say that this is a restriction on a certain manner of making calls, but the types of calls that are either made legal or illegal, the dividing line between what's allowed and what's not allowed turns on the content of the calls. I think that if you were facing a statute that said, for example, "You are not allowed to advocate for libertarians using email, or using phone calls or using handbills," all of those would be manner restrictions, but I think that we would all recognize that those are content based restrictions that would trigger strict scrutiny and would inevitably fail. Justice Ginsberg: (40:33) On your severability, we know that 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, because they're not out of the blue, they are simply a reminder of an obligation that the debtor undertook. Mr. Martinez: (41:05) Your honor with respect, I don't think that's the original justification for this particular provision, and I would point to two things. First of all is the fact that the kind of out of the blue calls that my clients might want to make, political calls, those are calls that were perfectly allowed and were perfectly acceptable to the home when Congress and the FCC acted in the early nineties, and at that time, of course, over 90% of the phones in America were home phones. That's where the privacy interests were at their apex, and nonetheless, Congress and the FCC recognized that the kinds of calls my clients want to make don't tread on privacy interests enough to warrant that kind of restriction. I think what that just shows is that, again, the privacy interest being asserted here isn't really strong enough. Even if you go look at what the FCC said about this, and I would look at the 1992 NPRM, especially at pages 8773, sorry, at page 2737 and then the 1992 order at 8773, because there the FCC said that noncommercial, non-telemarketing calls can be exempted without undermining the TCPA. If that's true, then there's just no reason- Chief Justice Roberts: (42:21) Thank you, Council. Justice Breyer? Chief Justice Roberts: (42:28) Justice Breyer? Justice Alito? Justice Alito: (42:35) Mr. Martinez, I'm interested in your analysis of the severability question, and I wounder if you could say whether your position depends on either the breadth of an exception or exceptions or the manifestation of congressional intent? So let me give you an example, a fanciful example that tries to reduce both of those things to perhaps their lowest limit. Suppose there was a total ban on automated calls to cell phones, or to all phones, but there was one tiny exception for, let's say calls between noon and one PM on the fourth of July that contain this simple message, "Happy Birthday, America." And let's say that the statute allowing this contains a provision that says that if the inclusion of this exception renders the statute unconstitutional, the statute itself shall remain enforced and the exception shall be stricken. So would you say even in that situation the whole statute would have to fall? Mr. Martinez: (43:50) Your Honor, let me try to address that in each of the two pieces, because I think it's a nuance question and deserves a nuanced answer. First of all, with respect to the narrowness of that particular ban, I think that the fact that that particular restriction or exception is so narrow, I think that probably looking at the totality of the circumstances, we would look at that and we would think the existence of this one tiny exception and the fact that this really isn't going to invade privacy that much, I think that would probably be a reason to conclude that the restriction is not unconstitutional, and if that's true, then of course the severability analysis wouldn't be necessary. Mr. Martinez: (44:28) If you take the other part of your hypothetical though, as I understand it, if the statute had a provision in it that essentially said "If the restriction fails, you should nonetheless sever the exception and reinstate the restriction," I don't think that would be appropriate, because I think that the reason that the restriction would fail in that circumstance is that it's insufficiently justified, and getting rid of that exception doesn't solve that problem. The exception, again, assuming that the exception was big enough to actually create a problem of constitutional deficiency with the statute, the exception is evidence of why the restriction is unjustified, and so getting rid of that doesn't solve the problem with the restriction. Justice Alito: (45:14) That does seem to thwart a pretty clear manifestation on congressional intent, but you think that's irrelevant in this situation? Mr. Martinez: (45:21) Well, I think in a circumstance, Your Honor, and I don't think this is, I don't think the government disagrees with us on this. If you look at pages 17 to 18 of their reply brief, they essentially agree that if the problem with the statute is the restriction, then the restriction has to fall. Mr. Martinez: (45:37) Now, I think there's another way to look at the case, and I think my friend on the other side has sort of tried to frame it this way, if you thought that the only problem with the statute was not the justification for the restriction, but rather the fact that there's differential treatment, we think that you still have a first amendment matter, for a number of the reasons already mentioned, that you would still need to get rid of the restriction, but even if you didn't agree with us on that, I think there's, our fallback position would be the position the third circuit took in the Rappa case, which is that you'd need very specific evidence of congressional intent, and I guess in that case, in your hypothetical, if your hypothetical expressly addressed this situation, then maybe in that case the exception would be severed, but again, that that is not the case here, because here the underlying restriction is what's unconstitutional. Chief Justice Roberts: (46:24) Thank you, Council. Justice Sotomayor? Justice Sotomayor: (46:27) Mr. Martinez, are you taking the position that all restrictions of robocalls are unconstitutional or that just a broad restriction like this one is unconstitutional because there's some types of speech that should not be covered? Mr. Martinez: (46:50) Well, I think, Your Honor, in this case obviously we're dealing with the statute at hand. I think that there are some restrictions on robocalls that I think probably would satisfy the appropriate level of scrutiny, and just take one example, the way that the ban on calls works into home phones right now, it's essentially a ban on commercial telemarketing robocalls to the home, and that's the kind of, that is the heart of what the TCPA was getting at, and that's what Congress and the FCC said, "This is really the core privacy that we're trying to protect." I think that kind of statute, as much [crosstalk 00:11:24]- Justice Sotomayor: (47:24) Well, I, Mr. Martinez- Mr. Martinez: (47:25) [crosstalk 00:47:23]- Justice Sotomayor: (47:26) And I agree with you, and I can think of others, any schemes to get money, any schemes, just there's so many scams from robocalls, but putting all of that aside, assuming that there is a part of the restriction that could survive strict scrutiny under your claim, why shouldn't we limit any remedy striking down this provision simply to permit the types of calls that your clients make? Mr. Martinez: (48:06) Well, Your Honor, we would- Justice Sotomayor: (48:07) Why should we be striking down the entire statute? Now, you would have to prove, and I don't know that the court has done this below, that restricting political speech is not narrowly tailored, and I don't know that that's been done in this case, but if the issue is the remedy, shouldn't we let the circuit below decide that question? Mr. Martinez: (48:38) Your Honor, two points on that. First of all, we brought this as a facial challenge. We of course would welcome the kind of relief that you've hypothesized, although we do think that the appropriate relief here really is to strike down the restriction in its entirety, and one of the reasons for that is the point that you raised with Mr. Stewart earlier, which is the entire absence of any evidence or justification for this particular ban, for any of it, all of it or pieces of it, that the government has completely failed to put forward. This statute is subject to strict scrutiny, and this court has said over and over again that the government is the one that bears the burden of satisfying strict scrutiny. They address strict scrutiny and I think a single sentence of, with respect to the restriction, a single sentence in their opening brief, a single substantive sentence in their reply brief and nothing else. They're trying to turn strict scrutiny into a rubber stamp, and I think the best thing to do in these circumstances is hold the government to its burden of proof, invalidate the restriction, and then Congress can come back and act and legislate in a way that's rational in light of the court's decision. Chief Justice Roberts: (49:42) Thank you, Counsel. Justice Breyer? Justice Breyer: (49:44) 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, and we got it straightened out. Justice Breyer: (49:55) Okay, my question is this. Forget the political part of this, assume it's out of it, so now what worries me is if you call this strict calling for strict scrutiny, I guess the government's justification, which is that government debt is owed to us all as taxpayers, private debt is not, so treat it specially. Well, there are many situations, food and drug agencies, agricultural agencies, governing selling, the FTC, the SEC, where they will have regulations, and the regulations will have a broad category, and item X falls within it, lamps may fall within categories that require you to put electricity regulation on, how many amps does it use or whatever, but then you discover a subcategory of the one you just put in and you say "Leave out the subcategory" for some reason. Now, if courts start criticizing that for strict scrutiny, well, very few will survive, but the normal way of looking at it is, is it a reasonable thing? Justice Brandeis' third category. Very well. Why does this case fall into strict scrutiny, once I got the politics out, but not Justice Brandeis' regulation? Mr. Martinez: (51:35) Your Honor, a couple of points on that. I think this case falls into strict scrutiny because it satisfies the test for what constitutes a content based restriction that was set forth in Reed, and as I know Your Honor will remember- Justice Breyer: (51:48) You realize that what I'm doing is I'm, I descended, and I'm wondering whether to stick to that approach or not, so Reed will not convince me. It's a good majority, but I didn't think good enough. Mr. Martinez: (51:58) Well, I would hope that [inaudible 00:52:00] would be a factor- Justice Breyer: (52:02) [crosstalk 00:00:52:02]- Mr. Martinez: (52:02) Even if you disagreed with me, [crosstalk 00:52:02]- Justice Breyer: (52:03) Yes. Okay. Okay, but that isn't what I'm trying to get at. I'm trying to clarify my own thinking on it. Mr. Martinez: (52:08) Fair enough. Fair enough, Your Honor. Well, I don't think you should be concerned about the prospect of other laws that are economic regulations sort of being impacted by this at all, because I think [crosstalk 00:16:19]- Justice Breyer: (52:18) Yes, that's what I want the answer to, exactly why? Mr. Martinez: (52:22) Right. In those cases, those kind of restrictions that sort of get tangled up with speech in the context of those kinds of regulations, those would be at most commercial regulations of speech, which wouldn't be subject to strict scrutiny regardless of whether or not they are considered content based. So for example, if the government lists a number of statutes in its brief that it says the sky is going to fall and all those statutes are going to be unconstitutional if we win, and that's just simply not true. At most, those statutes would be regulations of commercial speech, at most, and if so they would trigger intermediate scrutiny under this court's settled doctrine. Justice Breyer: (52:58) And isn't there- Chief Justice Roberts: (52:59) [crosstalk 00:52:58]. Justice Breyer: (52:59) Thanks. Chief Justice Roberts: (53:01) Justice Kagan? Justice Kagan: (53:04) Good afternoon, Mr. Martinez. Mr. Martinez: (53:06) Good afternoon. Justice Kagan: (53:08) I'll give you a hypothetical. It could be a hypothetical. Suppose this statute was written in a slightly different way and it exempted any calls between the holder of a government debt and the debtor, with strict scrutiny apply? Mr. Martinez: (53:22) Your Honor, I think that in that circumstance the regulation would not turn on the content of the calls, and so I don't think strict scrutiny would apply for that reason. Justice Kagan: (53:32) Right. In other words, it would turn on the relationship, and so I guess the question is what's the difference? That's what Congress was trying to get at, and maybe they didn't know all of our [inaudible 00:53:44] First Amendment rules, but that regulation basically covers a particular kind of economic activity, the collection of government debts, and this regulation covers the same kind of economic activity, that collection of government debts. They're two ways of getting at the same thing. Both are directed at the economic activity of the people involved ... Justice Kagan: (54:03) ... Thing. Both are directed at the economic activity of the people involved? Why should there be any difference? Mr. Martinez: (54:06) Well, with respect, and perhaps I've misunderstood the hypothetical, Justice Kagan, but I thought in your hypothetical that as long as the relationship element was satisfied, the call could be on any subject whatsoever. So, in other words- Justice Kagan: (54:18) Well, we know that holders of government debt called debtors to collect debts, that's what they call them for. They're not calling them to discuss political issues. Mr. Martinez: (54:28) Well, with respect, Justice Kagan, I'm not sure that's right. And the FCC has expressly addressed this situation in their August, 2016 order at page 9087, where the FCC, it's discussing and addressing the content of the calls, that issue being made by collectors of government backed debt. And it contemplates that the subject matter of the call might range beyond the collection of government backed debt, maybe they're going to be marketing some other product. Mr. Martinez: (54:55) Maybe they're going to be saying, "Hey, call your congressmen and change these laws that applied to banks." And what the FCC has said is that when the subject matter of the call ranges [toilet flush 00:55:05] topics, then the call is transformed and it's a call that would've been allowed and it's no longer allowed. And so, I think that the content of the call at play is different here. Justice Kagan: (55:14) Excuse me. I guess a technical issue, Mr. Martinez, but I guess what I'm saying is that there are two ways where Congress is trying to get at the same thing, which is the calls between debt-holders and debtors almost always about the debt. But why should we care? Even if Congress didn't write this in exactly the right way, why is it that we should care so much as to put strict scrutiny into place? And this doesn't raise any real concerns about government censorship, about the suppression of ideas, about its distorted marketplace of ideas. Why is this an appropriate time to put strict scrutiny into place, given that what the legislation is trying to get at is an economic relationship and the things that flow from that relationship? Mr. Martinez: (56:08) Your honor, I think that the robust test for content based speech restrictions this court adopted in read is important because it protects liberty. It makes it harder for Congress to enact broad speech bans that affect everyone while at the same time assuming it can then just carve out special exemptions for favored groups. And I think the way to police that problem is by making sure that Congress has to be very careful before it enacts the broad ban and make it clear to them that they can't just do that. And then, for example as in this case, delegate authority to a government agency to hand out specialized exceptions for whatever well-heeled party turns up and claims an exemption. And so, I think that that is one of the- Chief Justice Roberts: (56:50) Justice Gorsuch? Justice Gorsuch: (56:53) Counsel, I'd like to just turn back to the intuitive appeal of the government's separability argument. If, as I think you've conceded, that the statute before the government debt exception would not have been content-based and might've been permissible under the first amendment, Congress then comes in and adds the government debt exception and that changes the equation. The intuitive argument based on that sequence of events is, well, just get rid of the government debt exception and we go back to the status quo ante where everything was fine. Why should we reject that intuition? Mr. Martinez: (57:35) I think there's a philosophical reason and a historical reason. The philosophical reason is essentially that in the first amendment context courts should not be making more speech illegal because if courts take a certain type of speech that Congress expressly chose to allow and then courts make the decision to prohibit that speech, they're essentially stepping into the legislature shoes and making very sensitive policy tradeoffs that indisputably cut against first amendment interests. And they shouldn't be the ones to do that. Philosophically as well, you need to make sure that people have incentives to challenge unconstitutional laws. I think as a historical matter though, I think it's important to recognize that the original justification for the ban on cell phone calls here was essentially that those kind of calls to cell phones would inflict charges on called parties. And that's the reason that the ban was in place, as you know, originally. Mr. Martinez: (58:29) And that's why it may have been justified earlier, but in today's world, those call plans essentially don't exist or are overwhelmingly people are not charged when they receive calls to their cell phones. And so, the historical facts are different now and because of the fact that everyone has cell phones, the government has an especially strong interest now from a revenue perspective of making those debt calls. If you take all that and wrap it up together, I don't think there's a good historical basis or empirical basis for concluding that in fact we know with certainty or the kind of certainty we should have in the first amendment context that Congress would have wanted to reenact this statute if it wasn't allowed to make the calls to collect government back debts. Justice Gorsuch: (59:11) Le me see if I've got at least that second point, my hands around it. The argument is that maybe the first Congress that enacted the original statute thought that all robocalls should be prohibited with some exceptions that you have no complaint with. The second Congress acting in a different time had a different judgment about which calls should be permitted and that included this government debt exception. We don't know whether the second Congress enacting the revised statute would prefer a situation in which all calls are prohibited or all calls are allowed. Does that sum it up? Mr. Martinez: (59:55) I think that sums it up with one small caveat, which is that we are talking now on the assumption that there is a severability analysis that's required here that turns on intent. I do think our primary position is that the nature of the first amendment and the nature of the constitutional flaw in this statute, which is the flaw with the restriction, we think that that means that essentially under everyone's understanding of severability principles, the restriction must be struck down. Chief Justice Roberts: (01:00:21) Thank you, counsel. I'm sorry, Justice Gorsuch. Justice Gorsuch: (01:00:26) No, I'm fine. Thank you, Chief. Chief Justice Roberts: (01:00:28) Justice Kavanaugh. Justice Kavanaugh: (01:00:30) Thank you, Chief Justice. Good afternoon, Mr. Martinez. On severability, we have no precedent either way on severability, as I understand it, when the first amendment problem is created by an exception to a ban on speech rather than the first amendment problem being created by the underlying ban without the exception. So, I don't think we have any precedent either way. And the question, as Mr. Stewart's pointed out, is level up or level down as the remedy. The key first question, and I asked Mr. Stewart about this, I want to make sure I have you on this, is the underlying restriction here. The underlying restriction on cell phone robo calls constitutional without the government debt exception. So, we need to focus exactly on that question. Mr. Martinez: (01:01:23) Yes. We think that given all the evidence we know now about what Congress's interests are and how strongly they believe or don't believe in the privacy interest, we believe that the restriction is unconstitutional and I think the two- Justice Kavanaugh: (01:01:40) Let me just make sure I have you exactly right. The underlying restriction, if there had never been a government debt exception, let me phrase it that way, is the underlying restriction unconstitutional? Mr. Martinez: (01:01:54) We would say yes based primarily on the differential treatment of the residential call bans. But I just want to say one thing on that, Justice Kavanaugh, because if you want me to hypothesize that the 2015 law had never been passed. I think that the 2015 law, if you think about that law as evidence of what Congress thought about privacy, the fact that it wasn't passed doesn't mean that deep down Congress believed in privacy more than was later revealed. And so, I think it's important to recognize that in our argument, the role of the 2015 exception is not merely to introduce the textual content based distinction, but it's also to reveal the underlying lack of justification, which was always there. And again- Justice Kavanaugh: (01:02:43) Well, I guess on that point I would pick up on what the Chief Justice said and the state's Amicus brief. And if you just take just a peek at the real world here, 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? Mr. Martinez: (01:03:06) I think aspects of the law are popular. The head of the FCC has called this law the poster child for lawsuit abuse, and the reason for that is, and this is indirectly implicated in this case, there's a whole bunch of other problems with the law as well. And so, I think this law has its supporters and its detractors, but I don't think you should worry about Congress' ability to protect people. Even if we win this case, Congress is going to have plenty of options that are fully constitutional in order to protect people from unwanted calls. It can focus on the telemarketing calls, it can expand the remedies available under the do not call list, which essentially allow consumers [crosstalk 01:03:45] to opt out. Justice Kavanaugh: (01:03:47) Sorry, even if you lose this case, Congress can of course scale back what you view as overbroad restrictions, but if you lose this case, Congress will still have in place a restriction that's been on the books for 30 years and that has been perceived as constitutional and that is very popular. Mr. Martinez: (01:04:05) Well, I guess what I would say is that I think the right way to think about this is to apply the doctrinal tools that you always apply in first amendment cases, even in cases where the speech involved is not popular. The first amendment is there not just to protect speech that people like, but to protect speech that people might find offensive or annoying. Chief Justice Roberts: (01:04:25) And Mr. Martinez, would you like to take a minute to wrap up? Mr. Martinez: (01:04:31) Thank you, your honor. The core purpose of the first amendment is to protect the free exchange of political speech, even when people might find that speech to be a nuisance. That's what this court recognized in the Martin case when it said that the first amendment rights protect people from making intrusive door to door solicitations. That's protected activity. The calls that issue here are protected activity as well. We ask you to do what you always do in first amendment cases, strike down the unconstitutional restriction on speech. Thank you, your honor. Chief Justice Roberts: (01:05:02) Thank you counsel. Mr. Stewart, you have rebuttal? Mr. Stewart: (01:05:06) Thank you, Mr. Chief Justice. I took Mr. Martinez to acknowledge that if this were a restriction on speech undertaken to collect a government backed debt, it would be subject at most intermediate scrutiny because it would be commercial speech and would be subject to distinct first amendment treatment on that basis. And the position of the other side is this provision should be reviewed more skeptically, should be subject to more searching review because its effect is to take particular speech out from under regulation rather than to regulate it, and that's contrary to the usual understanding that the first amendment exists to foster speech. It's contrary to the court reference and read to laws that target speech because of its communicative content. Why would the court review more skeptically a law that looked at the same basis as a rationale for exempting speech rather than to regulate? Mr. Stewart: (01:06:05) The second thing is Mr. Martinez said many times that Congress and the FCC have exempted non-commercial calls from the automated call restriction and I think that really overlooks the respective responsibilities of Congress and the FCC. Congress has broadly regulated at least Kohl's using a prerecorded voice for an artificial voice to residential landlines just as it has calls to cell phones. Both of the underlying bans encompass non-commercial calls. Congress has bested the FCC with broad though not identical authority to exempt particular categories of calls from the residential and the cell phone ban respectively, and you can looking at page five and six of the appendix to the government's Barrett's read to see that the exemption authority is basically comparable. The discrepancy under current law results from the fact that the FCC has exercised its exemption authority much more robustly with respect to residential land lines than it has with respect to cell phones. That can't create a facial constitutional infirmity in the statute itself. If people think that the FCC should adopt comparable exemptions for noncommercial calls to cell phones, they can file a petition to that effect. Mr. Stewart: (01:07:23) The last thing I'd say in respect goes to the colloquy between Mr. Martinez and Justice Kagan where Mr. Martinez said yes, if they had framed it not in terms of the content of the call, but in terms of all calls from the holder of a government backed debt to the debtor, that that would be subject to more relaxed scrutiny. And an approach that distinguished on that basis would simply encourage Congress to enact laws with more of a broad brush, it would discourage Congress from trying to fine tune laws and that discouragement would only be exacerbated if we took the respondents approach to severability, striking down the whole law. Thank you, Mr. Chief Justice. Chief Justice Roberts: (01:08:07) Thank you, counsel. The case is submitted. Speaker 6: (01:08:11) The honorable court is now adjourned until Monday next at 10 o'clock. Can I get a picture with you guys? Chief Justice Roberts: (01:08:14) Sure.