Photo by Chuck Kardous Via Wikimedia Commons
WW 1: Today’s case of the week is a new, but little-discussed, 6-3 opinion from the Supremes that most people will applaud: debt collectors may no longer harass you via robocalls to your cell phone.
The majority opinion written by our most junior justice, Brett Kavanaugh, opens with a simple observation: “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.” But a 2015 amendment to the Telephone Consumer Protection Act of 1991 permitted an exception for collectors of government-backed debt, such as some student loans and mortgages, to the general prohibition against robocalls. The plaintiffs in Barr v. American Association of Political Consultants, Inc. are not debt collectors, but nonprofits and political action organizations who want to make robocalls and argue that the amendment unfairly protects one type of “speech” over another. Rather than invalidate the amendment, the plaintiffs seek to invalidate the entirety of the TCPA.
The case was heard at the lower level by the Fourth Circuit, who found that the exception for government debt collectors from the prohibition against robocalls created a content-based restriction of free speech. The appellate court then applied the principles of severability to the TCPA and its amendment, and invalidated the latter. The government appealed the decision, asking SCOTUS to reinstate the amendment. The plaintiffs supported the petition for appeal, but with the assertion that the 4th Circuit’s error was to allow the TCPA to remain in effect at all.
Kavanaugh’s plurality decision, joined by Justice Roberts and Alito and in part by Justice Thomas, finds that the amendment constitutes content-based regulation when it draws distinctions about the message of the speech, and thus subject to strict scrutiny. Illustrating his point, Kavanaugh writes “A robocall that says, “Please pay your government debt” is legal. A robocall that says, “Please donate to our political campaign” is illegal. That is about as content-based as it gets.”
The government presented three arguments, which the Court discarded in turn: 1) the amendment distinguished based on speaker, not content; 2) the exception turns on whether the speaker is engaged in a particular economic activity; and 3) “if this statute is content-based because it singles out debt-collection speech, then so are statutes that regulate debt collection, like the Fair Debt Collection Practices Act.” In short, the Court discards them all with the determination that the distinction made in the amendment is content-based. The government admits it cannot overcome a strict scrutiny analysis, but was unable to convince the Court that a different standard should apply.
The plaintiffs ask the Court to go a step further and invalidate the entirety of the TCPA. They argue that the existence of the amendment negates the supposed aim of the TCPA, which is to protect consumer privacy. But the Court is not willing to throw out the baby with the bathwater, pointing to the unknown millions of robocalls that have been prevented despite the 2015 amendment. The TCPA still serves a legitimate purpose, and the doctrine of severability prefers the excision of the problematic portion of a law rather than a wholesale invalidation.
Justice Sotomayor agreed with the remedy of severability, but wrote separately to express her belief that strict scrutiny did not apply. Nevertheless, she did not believe the statute in question could satisfy even a lesser test.
Justice Breyer, joined by Ginsburg and Kagan, disagreed that the exception for government debt was unconstitutional, believing the purpose of collecting debts guaranteed by the government to be a legitimate purpose, and arguing that the First Amendment is to protect the exchange of ideas, not to “threaten the workings of ordinary regulatory programs.” However, the plurality having found it unconstitutional, the trio agree that severability is the proper remedy.
Justice Gorsuch concurs in the judgment, but writes separately because he reaches his conclusion differently. Rather than finding that the amendment created an unconstitutional preference for one speech over the other, Gorsuch maintains that the TCPA is a restriction of free speech that would require strict scrutiny. The robocall prohibition to cell phones was enacted at a time when most cell phone users paid for each call received, and thus needed protection from unwanted calls that cost them money. Things are not so anymore, writes Gorsuch. And not only do cell phone users not pay for each call, but they have other methods at their disposal to avoid unwanted calls, such as caller ID and call blocking.
But while Gorsuch sees the entire TCPA as a content based restriction for which the government has failed to articulate a justification that would withstand strict scrutiny, he would not go so far as to invalidate the entire TCPA, nor does he believe the Court should apply the doctrine of severability- a concept he sees as an impermissible “rewriting” of the statute by the Court. Gorsuch would simply issue an injunction to stop the robocall ban from applying to the Plaintiffs, since invalidating an exception for government debt collectors offers them no remedy. (Justice Thomas joined Gorsuch in this proposed remedy.) Gorsuch concedes that this approach could lead to others seeking their own I junctions, but feels this harm is less than that which will accrue if only the amendment is invalidated and robocalls remain prohibited. Writes Gorsuch: “Having to tolerate unwanted speech imposes no cognizable constitutional injury on anyone; it is life under the First Amendment, which is almost always invoked to protect speech some would rather not hear.”
WW2: In a more widely discussed decision released this week, SCOTUS upholds state faithless elector laws.
WW3: China passes a new “national security” law in Hong Kong…
WW4: Of which big tech is not a fan.
WW5: Some employers are requiring their workers to sign waivers agreeing not to hold them liable if they become infected with COVID-19 on the job. Are they legal? Probably. Enforceable? That’s less clear, but of course, it depends.
WW6: A Florida lawyer wore a full-on hazmat suit to his client’s sentencing in federal court last week. “It would have been nice if he’d worn a tie on the outside of it,” one judge commented. Judges gonna judge.
WW7: In this patriotic edition of weird law of the week:
The TCPA probably needs to be revisited by Congress but since they don’t actually legislate much anymore I doubt it will any time soon. Nevertheless it’s important to understand what the legislation and FCC implementing regs actually do. They regulate the use of technology (IVR and use of auto-dialers). It’s perfectly legal to cold call someone not using the technology for any legal purpose.
Of course the next battle is going to be over the definition of ‘auto-dialer’. There have been some recent cases narrowing it but the FCC’s position has basically been ‘anything not a rotary phone.’ It’s a situation where there is a legitimate interest in not allowing automated processes to keep phones ringing off the hook all day but the technology is now totally removed from the legislation and Congressional findings underlying it.Report
And to clarify it also regulates faxing, but the issues in the case were the IVR and auto-dialer provisions.Report
Hot dogs are not fit for human consumption.Report
You should change your name to “Pinky Extended”.Report
Yay! Crime A Day!Report
Thanks for the link… I already followed them but it was a reminder I should use it more often!Report
Virginia decided that in order to make people feel more safe and comfortable taking the bar exam during a pandemic, it would finally allow men to stop wearing ties:
https://abovethelaw.com/2020/07/concerned-about-covid-at-july-bar-exam-virginia-cancels-requirement-that-applicants-wear-ties/
There is a serious amount of status quo bias going on with the fact that most state Bar Examiners just do not want to explore alternative methods for the bar exam or even delaying it despite the fact that there is a raging pandemic going on. Though I find it kind of astonishing that the Virginia bar still requires court attire.Report
The New York bar has the biggest reason to keep to tradition since it makes a bigger deal about the admission process and ceremony than other bar associations. All this sticking to tradition is because any change might lay lie to the entire system.Report
I had to wear a suit for our pre-swearing in ethics review in MD but not the test itself. I felt like a real idiot when I went to the same class for DC in suit and tie only to find everyone else in sweats and pajama pants.Report
New York doesn’t allow you to submit your moral character application until after you pass the bar exam. So if you pass in November, you submit the moral character application around December. A few months latter you will be called into an interview. If you pass that, you are sworn in at the Appellate Court house in the appellate district you took the bar exam in. A judge will give a speech and swear you in. Naturally, most people want to be sworn in the 1st Department, which covers Manhattan and The Bronx alone, especially if you went to a big name school like Harvard Law School. It’s a prestige thing.Report
Do you get an individual ceremony or do they do a bunch of you at a time? Also does the judge know anything about you as a person?Report
Also does the judge know anything about you as a person?
If a judge has heard of you before chances are you’re going to have some real trouble in the character and fitness portion.Report
We do pre-interviews and a whole extended ceremony about you prior to and after the swear in, so I was curious if NY had anything similar.Report
Bunch at a time.Report
Its a bunch of people at the same time. The judge who swore my group in knew something about me because I had her as a professor for mass torts in law school and was the star student in that class. Beyond that probably not. New York likes to make the swearing in ceremonies fancy and old school because it likes its’ traditions.Report
Even more special, the first department does not let you submit a moral character application until you passed thee bar. Though as far as I know, you can apply for jobs in NYC if you are sworn into another department. It is convenient to take the bar exam in the Javits Center though as opposed to Buffalo.Report
There isn’t a practical difference in where you get admitted. You can still practice across the state. Its just that the 1st Department is the most prestigious.Report
We did away with the bar exam entirely in favour of a series of tests of professional competency, which worked out much better than another pointless exercise in memorizing thing for a test.Report
This is relevant to my interests.
Which state is this?Report
The Province of Alberta.Report
Well, that explains why googling for it didn’t work for me…Report
It was a pretty sensible ruling. Kind of a no-brainer too if John Roberts is concerned for the reputation of his court. Anyone who could be blamed for unleashing a deluge of spam that renders telephones unusable would be absolutely pilloried by the public.Report
Gorsuch cites Citizens United in extended the First Amendment to robots.Report
well if its good enough for Microsoft and all . . . .Report
WW2: Originalists cannot figure out that the reason of the Electoral College was for electors to use their own judgment rather than blindly follow the will of the mob.Report
yeah
Remember that dude who said that even if Clinton won the nomination he’d put his electoral vote for Sanders?
Everybody was pretty pissed off at him.
Although everybody forgot about that after Trump won.Report
There’s a difference between what’s a bad idea and what’s unconstitutional.Report
The one thing the Electoral College was unambiguously for, according to its inventors, was to prevent the likes of a Donald Trump from ever becoming President.* Imagine what would have happened if it had done its job in 2016.
* They also believed, erroneously, as it turned out, that most elections would end up with various regional nabobs splitting enough electoral votes that an electoral college winner (once Washington was out of the picture) would be rare, and the election would frequently be decided in the House, as it was in 1824.Report
I blame the Apportionment Act of 1929. We should have 1780ish levels of apportionment. (This would also fix a lot of the problems in Congress.)Report
I favor a larger Congress myself, with its consequent enlargement of the Electoral College, but would the voters in 2016 have been more likely to accept a reapportioned EC’s decision to do the one thing it was designed to do?Report
Eh. That’s one heck of hypothetical. I don’t know at what point we’d be able to seamlessly switch from 435 Congresscritters to… well, the first congress was 1790 and they had 68 congressmen (almost nice) and Wikipedia says “3,929,214” people which strikes me as shockingly precise but that’s one congressperson every 57,700 people or so. Let’s round up to 60,000 because I am lazy.
Divide 328.2 million by 60,000 and we get… 5470 congresspeople.
So…add the Senate and give Warshington 3 electoral votes and we’ve got 2787 to win.
At that point, I think that we’d be in a place where the candidate who got 2787 votes could reasonably be close enough to 50%+1 to get everybody on board, yeah.
(And now that I think about it, we’d probably be able to have pockets of the country where there isn’t a 2 party system anymore.)Report
As someone Twitter pointed out, if you told the Founding Fathers that one day their system would have to deal with there being thirty-nine million people in California, they’d say “wait, there’s how many people in where?”Report