The Supreme Court held oral arguments on May 6th in Barr v. AAPC, a TCPA case focused ostensibly on the constitutionality of the federal debts exemption.
Here is a summary of the questions that the Justices focused on and some highlights below. Overall, you’ll see that there was some skepticism over the Government’s argument that the exception is not content-based, and a lot of consternation about what to do if it is. Reading the tea leaves – today's argument shows that there’s no obvious direction that a majority of the Court is leaning.
It was very interesting to hear the variety of potential outcomes being discussed. Maintaining or striking down the federal debts exemption are two options, but we also heard discussions ranging from striking down the underlying autodialer restriction to creating additional targeted exemptions for political speech.
• Also interesting was what we did not hear – clear alignment among the justices. There seem to be a variety of preferred approaches, so it will be important to see where they land after further discussion.
• During Deputy Solicitor General Malcom Stewart’s argument (on behalf of the Government), some of the justices toyed with striking the entire restriction on using autodialers to call cellphones. They noted that striking only the government-backed debt exemption doesn’t grant AAPC any relief (Ginsberg), potentially restricts speech on a nonparty to the case (Thomas), and leads to a suppression of more speech (Gorsuch).
• Justice Kavanaugh indicated that, in his opinion, the key issue in this case is severability, not the constitutionality of the government-backed debt exemption.
• The justices pushed AAPC’s counsel on why the Court should strike the cellphone restriction that has been in effect since the TCPA, a particularly popular law, was enacted in 1991. They also probed into whether the restriction would still be unconstitutional if the government-backed debt exemption never existed (Thomas & Kavanaugh), why the Court should use strict scrutiny (Breyer) and how much congressional intent matters here (Alito & Gorsuch).
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