Courthouse Steps Oral Argument: Barr v. American Association of Political Consultants Inc.

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The oral argument for this case will be held on May 6, 2020. At issue is whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

Featuring:

Prof. Michael R. Dimino, Sr., Professor of Law, Widener University Commonwealth Law School

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is titled, "Courthouse Steps Oral Argument: Barr v. American Association of Political Consultants Inc." My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Professor Michael R. Dimino, a Professor of Law at Widener Commonwealth Law School. He's an expert on election law, the author of a case book on the subject, and has written widely on the election of judges. He also teaches and writes about constitutional law, legislation, constitutional criminal procedure, administrative law, federal courts, and U.S. Supreme Court politics.

 

After graduating cum laude in 2001 from Harvard Law School, where he was article's editor of The Harvard's Journal of Law Public Policy, Professor Dimino served as chief clerk to Associate Judge Albert M. Rosenblatt of the New York State Court of Appeals and then clerked for Senior Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit and Judge Paul L. Friedman of the United States District Court for the District of Columbia.

 

After our speaker gives his opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Professor, the floor is yours.

 

Prof. Michael R. Dimino:  Thank you, Greg, for the introduction. Thank you to The Federalist Society for hosting the call. Thanks to all of you for being on the call. It's a pleasure to be with you today and to talk about this important First Amendment case.  

 

      The case is Barr v. American Association of Political Consultants, and the question is the constitutionality of the Telephone Consumer Protection Act or more particularly the constitutionality of an exception that is built into the Act, and I'll explain that presently.

 

      The statute, the TCPA, as it's called generally in the briefs, is the -- contains a ban on robocalls, that is calls to cell phones—this is different from the regulations applicable to landline residential phones. This is a cell phone specific ban—bans robocalls, automated calls, or pre-recorded calls to cell phones. The statute was originally passed in 1991 and was almost a flat ban. There were a couple of exceptions. One for emergency calls and a second exception, if the consumers consented to receiving automated calls, those were the two exceptions.

 

      And it was generally believed and held that that statute as it existed from 1991 until 2015 was constitutional, perhaps even content neutral and constitutional. In 2015, however, Congress wrote another exception into the law and said not only is it okay to make an automated call, a robocall, if you have the consent of the consumer or if it's an emergency but also, you have the ability to make a robocall if you are collecting on a government debt or on a debt that is backed up by the government.

 

      So regular debt collection calls, consumer debt collection calls, for example, were prohibited if they were done as a robocall. You could still have an actual human being call, but you couldn't have an automated system call to collect the consumer debt. But if you were calling, if the government itself was calling to collect on a debt, or if a private entity was calling to collect on a debt that was backed up by the U.S. government, then it was okay to use an automated system.

 

      The question in this case is whether that exception, the exception for collection of government debts, renders the statute content-based, whether it creates a content-based distinction on speech and therefore triggers strict scrutiny. And if so, then everybody understands -- the government in fact concedes that the exception cannot survive strict scrutiny.

 

      So here's the general legal background of the doctrine that makes this content-based content-neutral distinction relevant. In general, content-based distinctions with regard to private speech trigger strict scrutiny.

 

      So the government can't regulate private speech in a content-based way unless the government has a compelling reason for doing so and unless the law that the government imposes -- unless the restriction on the speech is a narrowly tailored way of achieving that compelling objective. That's the rule that applies if the law is creating a content-based distinction on speech.

 

      If, however, the government is creating a content neutral restriction on speech, then a lesser standard of scrutiny applies. Intermediate scrutiny applies where the government will have an easier time justifying its restriction.

 

      So the key, then, is whether a particular restriction is content-based or content neutral. And how do we determine that? Well, unfortunately, the Court has not been particularly clear on that question. It tried to clarify things in a 2015 case called Reed v. Town of Gilbert, where the Court established a pretty administrable rule for determining whether a law is content-based or not.

 

      The problem is that the Reed rule seems inconsistent with some of the law that preceded it, and the Court in Reed did not explicitly overrule any of those cases. So here's the rule from Reed. Reed says that a law is content-based and therefore will trigger strict scrutiny if you look at the face of the law and the law makes a distinction on the basis of the content, the substance, what is said during a communication.

 

      So in this instance, for example, we have a statute that says that you can make a robocall if the substance of your call is to collect on a government debt. You may not make a robocall if the substance of your communication is to collect on a consumer debt or, to raise the claims of the people challenging the law in this case, if you are calling to persuade people that they should vote for a particular political candidate, or you're calling someone to do political polling, which is what the respondents in this case want to do.

 

They want to engage in this kind of political speech. If you want to do that, the statute makes it illegal. But if you want to use a robocall to make speech with different content because you're collecting on a government debt or a government-backed debt, then the speech will be allowed.

 

      So that created a content-based distinction. Whether a robocall is permissible or not under the statute depends on whether the call is to collect on a government-backed debt or not. That's a distinction based on content; therefore, it triggers strict scrutiny. That seems to be the implication of Reed.

 

      All the justices seemed to agree that if Reed is going to be followed, at least if the majority opinion in Reed is going to be followed, then this law is content-based and therefore, triggers strict scrutiny.

 

      The Court in Reed also suggested that a law could be considered content-based even if it doesn't make a content-based distinction on its face. So if the statute appears to be content neutral and not to draw any distinction based on what is being said in the communication, if it is motivated by a disagreement with the substance of what is being said, then it's also content-based. So a kind of two part test established by Reed, but the first part it the one that would be significant here.

 

      The dissenters -- or the people who concurred in the judgment in Reed had a different view. They thought, and some cases prior to Reed said this, said that a content-based distinction should apply, that we should consider a law to be content-based only when it is justified by a desire to suppress speech with certain content.

 

So that if the government's purpose is to address other kinds of results of the speech or other thing that are correlated with speech, that the government should be able to make a content-based distinction so long as the purpose of the government is not to suppress certain kinds of speech. The majority opinion in Reed said that's not the only test, however, and adopted a much broader test for determining whether something was content based or content neutral.

 

So the first question of this case is whether the amended TCPA is content-based or content neutral. And on that question, there seems to be a clear majority of the Court that would view it as content based. There, Justice Breyer is the only justice who is really clear about his view going the other way. And even then, he was not 100 percent clear, and it wouldn't be shocking if he joined the majority and said I didn't agree with the Court's opinion in Reed, but if Reed is the law, I'm going to go along with it.

 

      But he seemed to stick to his guns, to his opinion in Reed, and to think that the Reed Majority was wrong. Justice Kagan also seemed to be skeptical of this idea that we should apply strict scrutiny here. But all of the other justices to one degree or another seemed to indicate that this law was content based, therefore strict scrutiny should apply and therefore, there was at least something about the law that was unconstitutional.

 

      So I think that at least there is a court, probably there's seven justices or so, for this conclusion that the law is content-based and that the exception for collections of a government debt created a constitutional problem with the way that the statute is written now. The question therefore becomes -- the second question of the case and the one that is likely to be far more difficult for the Court to resolve is what's called a severability question, which you could also think of as a remedial question. What should the Court do after it finds that the statute with this 2015 exception is unconstitutional?

 

      And there are two options that are pushed by the differing parties in the case. What the Fourth Circuit did, the Fourth Circuit held that the exception renders the statute unconstitutional, and so what the Fourth Circuit did was it got rid of the exception. It said we're going to cut out the 2015 statute that created the government debt exception and revert to the way the statute was from 1991 to 2015.

 

      That is, we're going to have a pretty flat ban on robocalls except for emergencies and except for when the consumer consents to receive the robocalls. Once the exception is taken out of the statute, then there's no more content-based distinction. There's no more reason to apply strict scrutiny, and there's no constitutional problem with the statute.

 

      The respondents, however, the American Association of Political Consultants, disagrees with this approach for a couple reasons. Number one, they say the statute, even without the exception, the statute should not be held to be constitutional because it restricts so much valuable core political speech. Prohibiting political robocalls should be a violation of the First Amendment even without a content-based distinction. That's the first objection they have.

 

      The second one is that they say if the Court remedies this constitutional violation by excising the exception, the Court itself will be in the position of suppressing more speech because it will take a statute as it's currently written that bans some robocalls -- it has an exception to that, so it allows some. It bans some and it allows some. And the Court would be getting rid of the exception so as to create a broader ban. It would be banning more speech. And the Association of Political Consultants argues that that’s improper for the Court to do. The Court should not create a remedy that ends up banning more speech than the unconstitutional statute.

 

      Further, they raise a practical argument, and they say if severability were the appropriate remedy, if we win on if we persuade that the law is unconstitutional but the remedy for that is that we sever the unconstitutional portion and my client's speech still can be suppressed, well, then what incentive is there for these people to bring the case in the first place?

 

      So I'll walk you through that step by step here. The exception, remember, applies to people who are collecting on a government debt. The people who are bringing this challenge don't fit within that exception. They want to make robocalls to deal with political polling or to persuade people to vote a certain way. So they want to make political calls.

 

      So their speech, this political robocall speech, is illegal under the current statute because it comes within the general prohibition on robocalls and it doesn't fall within the exception for collecting a government debt.

 

      If you get rid of the content-based distinction in the exception, so you just get rid of the exception for collecting government debt, and you make it a flat ban on robocalls, well, then nobody's allowed to make a robocall for any reason. And that rule would apply to people like the Association of Political Consultants also.

 

      So either way, whether they win or lose on the substance, their speech would be illegal. And so there'd be no point to them raising this First Amendment challenge. So they say for those kind of practical reasons as well, the Court's remedy should be to strike down the entire law and then force Congress to go back to the drawing board. And if Congress wants to reinstitute the 1991 version of the law, well then Congress can do that.

 

      So those are the arguments of the -- that are presented in the case. My expectation is, like I said, that I think there's a fairly strong majority for concluding that the law is content based, will therefore trigger strict scrutiny, and therefore, is unconstitutional.

 

      On the remedy part, I think that the Court is going to sever the unconstitutional portion. So I think that the Court will affirm the Fourth Circuit or come up with some kind of remedy that resembles what the Fourth Circuit did. I don't think that they're likely to strike down the entire statute.

     

      So I'll go through some portions of the argument and give you a sense of what the justices thought to be most significant. The Chief Justice began the argument by speaking to the government's lawyer and he said flat out he thinks the exception is content based and then went right to the severance question.

 

      Ginsburg also said that I don't see how you can escape the conclusion that the statute makes a content-based distinction. Alito skipped right to severability and was talking about that. Sotomayor said assume that the law is content based and then ask follow up questions from that. And Kavanaugh came out quite clearly and said that the exception is almost certainly a content based one. So I think it's pretty clear that that's how the Court's going to go on that question.

 

      On the severability question, everybody seemed to concede that there was no clear precedence on point for the question of whether severability is possible in a First Amendment case. Now, you may be familiar with plenty of First Amendment cases that struck down the entirety of content-based statutes. There are, of course, several of them.

 

In fact, what seems to be the canonical case, if you give an example of what a content-based distinction is, if we say we're going to ban residential picketing but make an exception for picketing with regard to a labor dispute. So we have a general ban but then an exception to that ban. The exception renders the law content based and the remedy in that case was to get rid of the entire law, not just get rid of the exception.

 

      But those cases -- and there's a few of them. There's the Cincinnati v. Discovery Network case that similarly struck down a restriction on newsstands that applied only to newspapers that were predominantly advertiser type magazines rather than real newspapers, creating a content-based distinction there.

 

So there's several of these kinds of cases where the Court has struck down an entire law when it's the exception that renders the law content based. But those are state laws, and the court doesn't have as much of an ability to cut out pieces of state laws after they've been construed by the state courts.

 

      Here, however, we're talking about an act of Congress and there is no clear precedent in place saying that the Court either does or does not have the ability to or it should or should not sever an unconstitutional portion of statute in a First Amendment case.

 

      There are some equal protection cases where an exception to a general law creates an equal protection problem. And the Court has been willing to sever those exceptions in those cases. However, there's some dispute about whether those equal protection cases should apply in a situation like this.

 

      As a couple of the justices, most notably Justices Gorsuch and Alito, pointed out in the argument that the essence of an equal protection claim is, "I'm being treated worse than somebody else." So if somebody else gets especially good treatment, then we can remedy that inequality either by giving me especially good treatment, treating everybody equally well, that is leveling up, making everybody at the higher level, or we can remedy the inequality by leveling down, by getting rid of the special good treatment that’s being given to somebody else, and in the end, everybody's treated equally.

 

      So if we imagine that we have a tax policy, for example, and the general tax rate is at 10 percent, but some special group is treated to a special benefit and gets a tax rate of 5 percent, we can remedy that inequality either by taxing everybody at 5 percent or eliminating the special tax exemption and requiring them to pay 10 percent too so that everybody's equal.

 

      What Gorsuch and Alito argued in the oral argument today was that the First Amendment is different, that the point of the First Amendment is not simply to protect equality but to protect speech so that making things equal by regulating more speech, by saying all right, you can't say anything either, is not an appropriate remedy in a First Amendment context.

 

      There wasn't much push back on that kind of argument from any of the lawyers or the rest of the justices. Although, I'll point out that even though the First Amendment generally doesn’t have its primary concern with equality, it is concerned, of course, with protecting speech. But that is exactly what the rules against content-based distinctions in speech deals with. That is the reason that we have such a strong attitude against content-based restrictions on speech is because we object to the government favoring certain kinds of speech, giving a sweetheart deal to certain kinds of speech like here, the collection of a government debt.

 

      So there is, even though it might not be the primary concern of the First Amendment, there is definitely a concern of the First Amendment with treating different kinds of speech equally. And so we might be able to remedy that kind of problem, remedy the content based distinction here simply by getting rid of the exception.

 

      And that alternative, that remedy, certainly seemed to appeal to the Chief Justice and to Justice Kavanaugh. And I think whether it shows up in the opinions or not, this oral argument showed yet again a philosophical divide between the conservatives, the so-called conservatives, on the Supreme Court.

 

And I think that Alito and Gorsuch and probably Thomas as well view the law and view the issues in this case in a more pure philosophical kind of way, whereas the Chief Justice and Justice Kavanaugh are much more pragmatic. And in fact, both of them referred to the very practical, I guess call it political but in a non-partisan kind of sense, the political concern that this law is popular. The people don't like getting robocalls. They find the calls annoying.

 

And both the Chief Justice and Justice Kavanaugh thought that it would be -- they seemed pretty clearly to indicate that they did not want to strike down an entire law that would have the effect of opening people up to receiving robocalls that they don't want when this law, in most of its applications, is perfectly constitutional.

 

      So if I'm rendering a prediction, I'm going to say that the Court is going to find a constitutional problem with the way that the statute is written now, but the remedy is going to be like the Fourth Circuit did, to get rid of the exception that creates a content-based distinction. And instead, to bring the law back to the form that it was in -- before the 2015 amendment so that we're --

 

I think what's likely is that the exception for the collection of a government debt is going to go away. But there is going to remain a general ban on robocalls. And if that -- so it may be that the Association of Political Consultants wins the First Amendment issue but isn't able to engage in the speech that it wants to do because the result will be that the general prohibition on robocalls may remain in effect.

 

      I'm not 100 percent certain that that's going to be the result. But it seems to be the direction of a bunch of the questions at oral argument. So with that, I'll stop my portion of the call that involves my remarks and my summary. And I'll open it up for the question time, Greg?

 

Greg Walsh:  Thank you, Professor. We'll now go to the first question. Caller from 215, you're on the air.

 

Andrew:  Hello, Professor. My name is Andrew, and I'm actually a law student. And I've been watching this case quite closely. And my question deals with partly with how you anticipate the justices are going to resolve this, particularly with respect to the severability because we're in this unique position where the severability might actually result in the restriction of more speeches opposed to less.

 

      So my question is, as I understand it, the law in question also has an opt-in provision where persons who don't want to get calls can request to be place on a do not call list. So is it possible that the justices might sever the automatic portion that wholesale restricts the speech while still keeping the portion where persons can opt in and request that they don't get these sorts of calls?

 

Prof. Michael R. Dimino:  Yes. I think that that's entirely possible. So even if we put in or reinvigorate a flat ban on robocalls, that doesn't mean the end of the case. And likewise, even if we get rid of the law entirely or get rid of that portion of the law, the automatic ban portion of the law, presumably the Court could leave in place that do not call list portion of the law too.

 

      Similarly, there's a part I didn't mention in the case where one of the lawyers for -- or the lawyer for the Association was asked what happens if you win, doesn't this create all sorts of problems for other aspects of First Amendment doctrine? If we strike down this law, if we call this law content based, if this forces us to invalidate a whole bunch of laws, wouldn't that cause problems in other areas of the law where the government often regulates economic behavior by regulating speech? This is a particular concern of Justice Breyer's, said shouldn't we just consider this to be a kind of economic regulation or regulation of business entities and ask whether the regulation is reasonable rather than does it pass strict scrutiny?

 

      And the lawyer responded that no, it wouldn't create all those kinds of bad consequences because if you are dealing just with commercial speech, then that area of speech is evaluated under a standard of reduced constitutional protection anyway.

 

So the people like Justice Breyer say that we have to be careful in extending the First Amendment too far because we might make it too hard for Congress to regulate. The response to that practical concern is that the commercial speech doctrine already takes account of those kinds of needs and holds that strict scrutiny wouldn't be applied there. So thank you for the question.

 

Greg Walsh:  We'll now go to our next caller from area code 402.

 

Caller 2:  Hi. Good afternoon, Professor. Thanks for your time. I'm curious your thoughts on whether or not the justices' ability, in particular Kavanaugh and Roberts, if they want to try and uphold it, does that not start looking more and more like a sort of executive line item veto where the Court is now striking out particular provisions in order to keep the rest of it alive?

 

I'm kind of under the analogy or the argument that was put forward in the, I think it was Clinton, the line item veto case. Shouldn't this go back to Congress to decide, like the Senators, maybe there were congressmen who only voted for this bill because it included this carve out for government speech. And is there an argument to make that it's the whole thing should be scrapped and now we should a new vote to see if the constitutional portions of this are amenable to the Congress?

 

Prof. Michael R. Dimino:  Thank you for the question. I think that the -- well, the one clear difference between the executive line item veto and this is that the constitutional basis for it. The Court, of course, wouldn't have any justification for striking down portions of the law unless it believed that those portions were unconstitutional.

 

      And I suppose that one can make that argument that you're giving too much discretion to the Court, keep parts of a law and to get rid of other parts when there's a constitutional problem. But I think against that, that you should take account of the fact at least that there is a severability clause in this statute that says that if any portion of the statute is subsequently held to be unconstitutional, that the remainder, the valid portions of the statute, should be severed from the unconstitutional parts and continue to be given effect.

 

      So insofar as you're making separation of powers argument that the Court should strike down the entire thing because it's not the Court's job to pick and choose what portions of a statute stay and which portions go, I think that perhaps a stronger argument is to say that Congress already made that choice and that Congress has said we should keep as much of the statute as we can. And maybe even without that, that the Court should do as little damage, should involve itself as little as possible, in altering the congressional statutes so that if a portion of the law is unconstitutional and then the Court has to get involved, to deal with that part but perhaps not for much more than that.

 

      On the severability point, or on the question of whether the Equal Protection Clause provides an appropriate analogy here, I'll make another comment since we have a little bit of time. You may recall, I said that the precedents, no one's on point to deal with First Amendment topic but that the Equal Protection Clause provided some possibly analogous precedents and those precedents seemed to indicate that severability was a potential option.

 

The response to that was two-fold. They said that this would still allow the Court to restrict more speech than the statute did, which was improper. But also, the claim was that in equal protection, the plaintiff's goal is to get equality. But here, the plaintiff wants to engage in speech. It wants to engage in this political speech.

 

The government's counsel responded to that and said that that argument is also true in the equal protection context so that someone who raises an equal protection objection to a law wants the better treatment that someone else is getting, but the person isn't constitutionally entitled to that. All the person is entitled to is equal treatment.

 

So if I'm challenging -- let's take the facts of Craig v. Boren. For those of you who remember that case, an equal protection context on sex discrimination, law imposes a different ranking age on young men than on young women. It allows young women to drink at age 18, doesn’t allow young men to drink until age 21.

 

If the case is brought by a man -- the case was actually brought by a bar owner, but if the case is brought by a man challenging that inequality, he's not entitled to be able to drink at 18. All he's entitled to is equality, and we can remedy the inequality by raising the drinking age to 21 across the board or by lowering it to 18 across the board. The 18, 19, 20-year old male doesn't have a right to access alcohol under the Equal Protection Clause.

 

And that was the argument of the government's counsel. And he says the same thing is applicable here, that had Congress written the statute in a content-neutral way like it did from 1991 to 2015, that the plaintiffs here, the respondents, wouldn't have much of a constitutional claim to an exception. Now, they assert that they do anyway. But that argument didn't seem to get much traction. So the --

 

Greg Walsh:  Professor, I think we have two questions on the line if you're ready to answer them.

 

Prof. Michael R. Dimino:  Sure. Let's get to them now.

 

Greg Walsh:  Caller ending in 7933, you are on the line.

 

Scott Delacourt:  Hi. This is Scott Delacourt at Wiley Rein. Thank you for your comments today, Professor. My question is addressed to the unusual situation we have here where the appellants may win on the merits of their First Amendment argument and not have a remedy.

 

      There was some of the questioning that suggested that in a case with alternative facts or in different circumstances, there might be a better case for a remedy that the Court would consider. One situation would be if the TCPA had been applied in a way such that the restriction on unconsented APPS calls to wireless phones prevented political calls. So if it was applied in that way and that was challenged, that would give rise to a First Amendment challenge to the underlying TCPA rather than a 2015 amendment.

 

      And then the second scenario that was suggested was that the FCC itself can create an exception for political calls, that the TCPA allows for that. And so if parties were to petition and ask for that sort of an exception and it were not granted, then that might also give rise to what the Court might look at as a First Amendment challenge that they would look at more favorably.

 

      I wonder, could you comment on those scenarios?

 

Prof. Michael R. Dimino:  Sure. Thank you. Very good questions and thank you for being on the call.

 

      Justice Sotomayor raised the first aspect of your question and suggested that perhaps there could be a remedy limited to political speech so that without invalidating the statute in its entirety, we could say well, political robocalls could be okay but not open it up to non-government debt collection calls.

     

      I think that approach is not likely, number one, because no other justice seemed to pick up on the suggestion but also because it would involve the Court in creating really difficult content-based line itself, trying to figure out what would qualify as political and what wouldn't.

 

And even if the Court was willing to do that, if Congress created that kind of line, even if it wouldn't be completely unconstitutional for Congress to do it, I don't think that the Court would create that kind of constitutional problem by reading in a political exception that isn’t in the statute at all. So I think that that kind of approach is not likely.

 

Now, on the second point, this was brought up in the government's rebuttal in responding to part of the challenger's argument that the government is creating a weird distinction here, that political robocalls are okay if you make them to a landline, but they're not okay if you make them to a cell phone. The challenger said this shows that the government's interest is phony and that the government's essentially behaving arbitrarily in prohibiting political robocalls to cell phones.

 

The government said that the reason we have that distinction isn't because of anything in the statute but because the FCC is permitted to make exceptions to the general prohibition on robocalls and has chosen to make that exception for landlines but has not chosen to make that exception for cell phones.

 

And Scott's entirely right that the government suggested that if you have a problem with that, if the basis of your challenge is that the FCC has not created an exception for political robocalls to cell phones, well, then challenge that. Take that -- the problem is, of course, they don’t want to have to claim -- they don’t' want to have to satisfy the arbitrary and capricious standard, that challenging administrative action could be difficult and if you -- I understand that the First Amendment would be behind that too. But the question there wouldn't be, I assume, it wouldn't be focused on this content-based distinction between certain kinds of calls, that if that were enough, it would work here.

 

But would the FCC have a reason, so it wouldn't be acting arbitrarily and capriciously, in allowing political robocalls to landlines but not to cell phones. Perhaps, there's some kind of reason for that distinction. Certainly, there was a long time ago when people had to pay for each cell phone call they received. In that context, it made much more sense to be a little freer with the exceptions that you'd grant to landlines than you would be for exceptions to cell phones.

 

The challengers here said whatever distinction there used to be is no longer a valid one. So there would presumably still remain that option even if there was no remedy for the Association here, that maybe they could go to the FCC and try to expand the exception for landlines and get it applied to cell phones as well.

 

Greg Walsh:  Thank you. Let's go to our next caller.

 

Caller 4:  Hi, Professor. Thanks for this fascinating discussion today. I'm in a public interest firm that does quite a bit of First Amendment regulation, and it seemed to myself and my colleagues that in the last five years, the Supreme Court's taken just an astonishing number of First Amendment, and free speech in particular, cases. It is becoming the most robust protector of the First Amendment that we've had probably in the last 50 years.

 

      I wonder -- I'm just curious to get your take on that, if you agree with that assessment, if that seems to be a consensus that's developing in academia?

 

Prof. Michael R. Dimino:  I tend to agree. It certainly is not as someone who practices public interest law the way that you do but as someone who has to teach this and has to come up with ways to teach all these new cases every year, that yes, I completely agree with you that the Court has been extremely active in the First Amendment area.

 

      And I guess I also agree with regard to its particular focus on free speech. Although, there is a bunch of religion cases that the Court has heard too, including today. The first case on the docket today was the Little Sisters of the Poor case on the claimed exception from the contraception portions of the Affordable Care Act.

 

      So yes, I agree with you. The Court has been extremely active. As for the direction of the Court's activity, I also agree with that. Although, the Court has not been quite as protective of free speech in certain cases as one might expect. In fact, as regards to today's case, the one case that the Court issued a few years ago on judicial campaign speech, the Williams-Yulee case, came up in the context of the oral argument today.

 

      That case refused to protect judicial candidates who wanted to sign their requests for funding. The judicial candidate wanted to send out a letter and said please support me with a contribution to my campaign committee and was disciplined by the Florida Bar. And the Supreme Court upheld the discipline, said that there was no First Amendment protection there.

 

      And that case came up again today. Chief Justice Roberts who wrote that opinion referred to it here and said well, even if we apply strict scrutiny, surely the government doesn't have to solve the entire problem. Can't it address little pieces like we allowed in Williams-Yulee? Well, that case had watered down strict scrutiny, and so I'm not sure that the Court has been uniformly -- I'm sure that the Court has not been uniformly protective of free speech rights.

 

      Although, I do agree with you overall that the Court has been active in the overall tenure of the decisions has been to protect First Amendment rights.

 

Greg Walsh:  Thank you. We have a few more minutes. Professor, while we wait for any final questions, do you want to add anything to your earlier remarks?

 

Prof. Michael R. Dimino:  No. I want to reiterate my thanks, though, to The Federalist Society and to you and all the callers for being on the call.

 

      I think that this case is -- the significance of this case could be in a few different areas. So I guess I will add this, that depending on what the Court says, this could be an important reaffirmation of Reed. So it could say that all those cases that Reed seems inconsistent with, we're reestablishing Reed's clear holding about what a content based and what a content neutral rule is. So that's one way in which this case could turn out to be significant.

 

      It also could be significant in what it says in severability. It's not quite as exciting a topic, but it might be one that's significant across a variety of doctrinal areas, not simply First Amendment kind of challenges, not simply telecom kind of challenges, but something that would be applicable in a wide range of just a general federal courts and remedies question about what the Supreme Court should do when it's confronted with a statute, part of which is unconstitutional.

 

      The Court's general approach to that has been to try to construct counterfactual argument. What would Congress want us to do? Would Congress prefer that we leave in place part of a statute that cuts out the unconstitutional part and leaves the rest? Or would Congress have -- prefer just to have us get rid of the entire thing? Would Congress not have passed half of a statute if it knew that that's all it could do?

 

      In this case, the Court seemed, again, particularly Kavanaugh and Roberts, seemed particularly inclined to think that if you gave Congress the option of having half a loaf or none at all, that Congress would’ve taken the half of loaf, that they would've taken -- would've banned robocalls generally and would've gotten rid of the constitutionally problematic exception.

 

Greg Walsh:  Okay. Well, it doesn't look like we have any more questions in the queue. So on behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.