Speaker 1: This is Bloomberg Law with June Grosso. Monday was a
Speaker 1: historic day at the Supreme Court. For the first time,
Speaker 1: the country could hear Supreme Court oral arguments live, and
Speaker 1: another first, the arguments were done by telephone. The issue
Speaker 1: in the case was whether businesses can get federal trademark
Speaker 1: protection for website names such as booking dot Com that
Speaker 1: center on a commonly used word. Will hear argument this
Speaker 1: morning in case the United States Patent and Trademark Office
Speaker 1: versus Booking dot Com. Chief Justice John Roberts started the
Speaker 1: session as usual by announcing the case, but then rolled
Speaker 1: out a new format, calling on the jostices by Seniority
Speaker 1: in an orderly fashion, unlike the usual free for all.
Speaker 1: Justice Brier the same question of Justice Thomas's question, good
Speaker 1: morning anyway, There are just a few glitches. Justice Stephen
Speaker 1: Brier's audio at one point was garbled, and Justice Sonia
Speaker 1: Sotomayor seemed to to get her mute button was on.
Speaker 1: Justice Soda Mayor, Yese Soda Mayor, I'm sorry, Chief ms
Speaker 1: Ross picking up on where you were right now. The
Speaker 1: one surprise, Justice Clarence Thomas asked a question for the
Speaker 1: first time in more than a year, Justice Thomas, Yes,
Speaker 1: Ms Ross. The couple of questions, Um, the could booking
Speaker 1: uh acquire an eight hundred number? For that's a vanity number,
Speaker 1: one eight hundred booking for example. Uh, that is similar
Speaker 1: to for one eight hundred plumbing, which is a registered mark.
Speaker 1: Even though the Chief trying to keep the questioning on time,
Speaker 1: Thank you, thank you, Miss Black. Justice Ginsburg, the argument
Speaker 1: ran fifteen minutes past the normal hour long session. Joining
Speaker 1: now is Bloomberg, Supreme Court Reporter Greg Store, how would
Speaker 1: you rate the first live oral arguments? Well, it went
Speaker 1: pretty smoothly. Wasn't like the usual oral arguments in the courtroom.
Speaker 1: But for what it was, there weren't any major glitches.
Speaker 1: Justices were all able to be heard, They could hear
Speaker 1: the lawyers. And you know, we had a couple of
Speaker 1: moments where, for example, Justice and you said, of myr
Speaker 1: seemed to have the new button on. So when Chief
Speaker 1: just As Roberts turned to her for her turn to
Speaker 1: ask questions, she wasn't there. And that happened with one
Speaker 1: of the lawyers as well. And then there were a
Speaker 1: couple of minutes where very hard to hear Justice Brier.
Speaker 1: The audio was just bad. But that only lasted a
Speaker 1: few seconds, and then he must have walked to another
Speaker 1: part of the room or something and we were able
Speaker 1: to hear him. But for the most part it went
Speaker 1: relatively smoothly. And when Chief Justice Roberts said, Justice Thomas,
Speaker 1: we heard a question from Justice Thomas, we did. That
Speaker 1: was the first time we've heard Justice Thomas in an
Speaker 1: argument in more than a year. In fact, that one
Speaker 1: point went ten years without asking a question. He has
Speaker 1: said that he said various things, but among the things
Speaker 1: he has it is I don't like the way the
Speaker 1: arguments go. We asked too many questions. We don't let
Speaker 1: the lawyer get an answer out. He really doesn't seem
Speaker 1: to like the free for all nature of most Supreme
Speaker 1: Court arguments. Well, this was not a free for all argument.
Speaker 1: It was much more structured, and perhaps he felt much
Speaker 1: more comfortable with the format. I think it's also the case, though,
Speaker 1: that it would have been striking for him not to
Speaker 1: ask a question. This was a very structured affair where
Speaker 1: John Roberts went from the most senior justice down to
Speaker 1: the most junior justice. Everybody had their turn, everybody had
Speaker 1: their three or four minutes, and it would have been
Speaker 1: very notable if the one and only justice who didn't
Speaker 1: take advantage of that opportunity was Clarence Thomas. And so
Speaker 1: in some ways maybe this was actually the path of
Speaker 1: least resistance form a person who hasn't heard or seen
Speaker 1: oral arguments before. Was this a fair representation for them
Speaker 1: or are they missing a lot? In some ways, it
Speaker 1: was because it highlighted how some Supreme Court arguments are
Speaker 1: actually pretty dry and technical, and the justices actually do
Speaker 1: get into the weeds about federal statutes and a hundred
Speaker 1: year old precedent, and they're not all the attention grabbing
Speaker 1: abortion and gun rights cases. On the other hand, you
Speaker 1: didn't have the kind of running narrative that you usually
Speaker 1: have in a Supreme Court argument. He did to some degree,
Speaker 1: but you really didn't have justices jumping in and saying, hey,
Speaker 1: you didn't do a very good job of answering that
Speaker 1: other justices question, or say, jumping in and trying to
Speaker 1: help out a lawyer who was floundering a little bit.
Speaker 1: You didn't have that, And because each justice got two
Speaker 1: minutes to ask questions, it meant that chief had more
Speaker 1: of a role of cutting off the lawyers and moving
Speaker 1: them along which he doesn't usually do. Yeah, he usually
Speaker 1: has to do that only maybe at the end of
Speaker 1: the argument when a lawyer is running out of time.
Speaker 1: But even then, when they're in the courtroom, there's a
Speaker 1: like system, a visual system that the lawyers have where
Speaker 1: they see a yellow light when they're running out of
Speaker 1: time and a red light when they're out of time.
Speaker 1: He or it was up to Chief Justice Roberts not
Speaker 1: only to tell the lawyer at the end, your time
Speaker 1: is expiring. You need to wrap up, but also to
Speaker 1: make sure that none of the answers went so long
Speaker 1: that other justices would lose their questioning time. As it was,
Speaker 1: the argument went longer than it was supposed to supposed
Speaker 1: to be sixty minutes, it win seventy five minutes. And
Speaker 1: part of that was it was actually difficult for John
Speaker 1: Roberts to have to cut in over and over and
Speaker 1: over again to interrupt the lawyers so that another justice
Speaker 1: could ask questions and the argument could move alone. Gregg
Speaker 1: looking forward when the justices returned to the bench, will
Speaker 1: they be pressure to continue the live streaming. I'm sure
Speaker 1: there will be public pressure, But part of the question
Speaker 1: is when is this going to happen? There's no guarantee
Speaker 1: that when new term starts in October, that these many
Speaker 1: of them elderly justices are going to be able to
Speaker 1: go back into a courtroom and here arguments like usual.
Speaker 1: So this may last for a while. From the court standpoint,
Speaker 1: no doubt. Part of it will depend on what happens
Speaker 1: with these arguments and the line long ago. Thanks Gregg,
Speaker 1: that's Bloomberg New Supreme Court reporter Greg Store coming up
Speaker 1: next on Bloomberg law that justices appeared divided over religious exemptions.
Speaker 1: The fractious debate over the contraceptive mandate in Obamacare returned
Speaker 1: to the Supreme Court on Wednesday, and the Justices seemed
Speaker 1: as divided as ever. The issue was the Trump administration's
Speaker 1: broad expansion of the types of employers who can opt
Speaker 1: out of the Obamacare requirement that they offer free birth
Speaker 1: control coverage in their healthcare plans. Chief Justice John Roberts,
Speaker 1: the possible pivotal vote, suggested that the Trump exemption might
Speaker 1: sweep too broadly and seemed frustrated that neither side wanted
Speaker 1: to work the problem out well. The problem is that
Speaker 1: neither side in this debate wants the accommodation to work
Speaker 1: the one side doesn't want it to work because they
Speaker 1: want to say the mandate is required, and the other
Speaker 1: side doesn't want it to work because they want to
Speaker 1: uh impose the mandate? Uh? Is it really the case
Speaker 1: that there is no way to resolve those differences? Justice
Speaker 1: Ruth Vader Ginsburg, who called in from Johns Hopkins Hospital,
Speaker 1: where she was being treated for a gallbladder condition, said
Speaker 1: the exemption would come at a cost to women. At
Speaker 1: the end of the day, the government is throwing into
Speaker 1: the wind the women's entitlement to seamless no cost to them.
Speaker 1: It is requiring those women to pay for contraceptive services.
Speaker 1: But Justice Brett Kavanaugh seemed to suggest the exemption was
Speaker 1: an appropriate balance. Why isn't that the way to look
Speaker 1: at the case? And if we get down to the
Speaker 1: bottom line of is this reasonable? Not maybe everyone's preferred choice,
Speaker 1: but at least within the bounds of reasonable, why isn't
Speaker 1: this a reasonable way to balance it? Joining me? Is
Speaker 1: Richard Garnett, a professor at Notre Dame Law School, explain
Speaker 1: the issue here? The real issue, the real issue in
Speaker 1: this case is probably not what a lot of people
Speaker 1: think it is. It's got a bunch of layer. So
Speaker 1: the issue here is whether the administrative agency in question,
Speaker 1: HHS has the authority to create the accommodation that it created.
Speaker 1: So that tells us what the issue is not. The
Speaker 1: issue is not whether the Constitution requires this accommodation. It's
Speaker 1: not whether the Religious Freedom Restoration Act requires this accommodation.
Speaker 1: It's really a question of administrative law. Did the agency
Speaker 1: create this accommodation in the correct way? And was it
Speaker 1: acting within its authority when it did. During the oral arguments,
Speaker 1: I thought that some of the justices seemed to be
Speaker 1: talking about or trying to relitigate questions that I don't
Speaker 1: really think are the ones that are presented. So you know,
Speaker 1: this case isn't supposed to be about whether the contraception
Speaker 1: coverage mandate is a good idea or whether the hobby
Speaker 1: Lobby case was correctly decided. What happened here is that
Speaker 1: a federal agency determined to change its own rules, and
Speaker 1: then some states decided that because I didn't like that
Speaker 1: change in the rules, they were going to say that
Speaker 1: the agencies lacks the power to change them. And I
Speaker 1: suspect that the Court is not going to agree with
Speaker 1: that claim. And then you have some other additional fun
Speaker 1: kind of law geek technical questions like does a federal
Speaker 1: district court have the power to issue a nationwide injunction
Speaker 1: on a policy or does it have the power only
Speaker 1: to issue an injunction within its jurisdiction? And do states
Speaker 1: have what's called standing to challenge changes to federal regulations
Speaker 1: simply because they predict that those changes will result in
Speaker 1: some cost to them. So from a law professor or
Speaker 1: you know, law geeks perspective, is all kinds of things
Speaker 1: swirling around in this case, But it's not really about
Speaker 1: whether or not one believes that the contraception coverage mandate
Speaker 1: is a good idea. Some of the justices seem to
Speaker 1: be talking to a broader audience perhaps, and to Justice
Speaker 1: Ruth Bader Ginsburg kept coming back to the costs of
Speaker 1: exams gens to women, saying that this would be tossing
Speaker 1: to the winds. Congress is intent that women have seamless
Speaker 1: and no cost coverage. Yes, she used the tossing to
Speaker 1: the wind image I think three different times, so that
Speaker 1: might be a good example of what I'm talking about.
Speaker 1: I mean, it's clear that Justice Kinsburgh thinks that the
Speaker 1: change in regulations that the HHS adopted are are bad policy.
Speaker 1: But you know, the question of what Congress's intent was
Speaker 1: is I think a little more complicated. I mean, after all,
Speaker 1: the Affordable Care Act itself didn't contain a contraception coverage
Speaker 1: mandate that was created by the administrative agencies that have
Speaker 1: now decided to recraft the accommodation insense. The agency is
Speaker 1: changing it's its own rules. That's not going against what
Speaker 1: Congress actually said. And there have been exemptions from the
Speaker 1: coverage mandate from the very beginning that it's it's never
Speaker 1: been a blanket requirement. There have always been employers who
Speaker 1: are exempted. It's been a balancing act. So I think
Speaker 1: the claim that these latest regulations are a dramatic departure
Speaker 1: from what Congress did is difficult to maintain. The better complaint,
Speaker 1: it seems to me, is this kind of administrative law
Speaker 1: complaint that the agency crafted these new accommodations in a
Speaker 1: way that sort of might not have followed the strict
Speaker 1: requirements for notice and comment and outside consultation and so on.
Speaker 1: But at the same time, there's plenty of precedent which
Speaker 1: states that so long as the agency does get that
Speaker 1: input at some point it's permissible. I think you're exactly
Speaker 1: right to pick up on the fact that Justice Ginsberg
Speaker 1: was speaking to a larger audience about the broader policy question.
Speaker 1: But I don't really think that broader policy question is
Speaker 1: the legal question that's before the Court in this particular case.
Speaker 1: Let me ask you something that's a broader policy question,
Speaker 1: because according to the States, the Trump exemption allows more
Speaker 1: publicly traded companies and large universities to get the exemption,
Speaker 1: and also expands it to include not just religious but
Speaker 1: moral reasons. You know, the Court had already ruled in
Speaker 1: the Hobby Lobby case several years ago that the Religious
Speaker 1: Freedom Restoration Act required an exemption for a publicly traded corporation,
Speaker 1: so it is theoretically possible, although as the lawyers pointed
Speaker 1: out in this case, it's not particularly likely that a
Speaker 1: large publicly traded corporations could try to invoke this exemption.
Speaker 1: That is, they're not categorically ruled out, but they would
Speaker 1: have to assert a sincere religious or moral objection to
Speaker 1: providing the coverage in question. And I don't think we
Speaker 1: have much evidence that there's a whole lot of publicly traded,
Speaker 1: large corporations that are lining up to do that. On
Speaker 1: the opposite side of Justice Ruth Bader Ginsburg, we had
Speaker 1: Justice Alito, who wrote the Hobby Lobby case. What were
Speaker 1: some of the points that he was trying to make well.
Speaker 1: I think Justice Alito's main point to be that the
Speaker 1: Religious Freedom Restoration Act, as the Court had already held,
Speaker 1: requires religious accommodations in some cases, and that what had
Speaker 1: been here with this accommodation was not that the agency
Speaker 1: had decided that it was required, but that it's permissible.
Speaker 1: And I think in Justice Alito's view, it's consistent with
Speaker 1: longstanding American traditions to try to accommodate religious objections when
Speaker 1: one can, and the Religious Freedom Restoration Act kind of
Speaker 1: an expression of that policy. And I think he believes
Speaker 1: that this rule is as well, and that, you know,
Speaker 1: since it complies with the relevant administrative law principles that
Speaker 1: the States are on. Pretty I think he would say
Speaker 1: weak ground in trying to insist that somehow the accommodation
Speaker 1: is impermissible. It might well be bad policy, but the
Speaker 1: issue here is whether the agency is authorized to make
Speaker 1: this change. I took Justice Aldo's point to be that
Speaker 1: not only is the agency authorized to make this change,
Speaker 1: but that the change, in his view, is consistent with
Speaker 1: the policy of accommodation. That's the Religious Rate Restoration Actents.
Speaker 1: Next on Bloomberg Lawford Decide, I've been talking to Professor
Speaker 1: Richard Garnett, have noted Dame Law School about the Supreme
Speaker 1: Court's arguments over the Trump administration's expansion of the religious
Speaker 1: exemption to the Obamacare contraceptive mandate. Several of the justices
Speaker 1: seemed dismayed that the parties couldn't work the problem out themselves.
Speaker 1: Here's Justice Stephen Bryer. The point of the religious clauses
Speaker 1: is to try to work out accommodations because they can
Speaker 1: be some of the most difficult to resolve disputes, and
Speaker 1: they can substitute a kind of hostility for harmony. So
Speaker 1: from that point of view, I really repeat, there's anything
Speaker 1: you want to add the Chief Justice's question, I don't
Speaker 1: understand why this can't be worked out. So we have
Speaker 1: the Chief who some people will look at as a
Speaker 1: middle ground here, perhaps a deciding vote in these kinds
Speaker 1: of cases. And right off the bat he questioned whether
Speaker 1: the Trump exemption might sweep too broadly, and then later
Speaker 1: on in the argument, Justice Elena Kagan re asked that question. Yeah,
Speaker 1: I think both of them wanted to have that issue
Speaker 1: kind of out in the conversation. That is, had the
Speaker 1: you know, in its effort to accommodate, had the agency
Speaker 1: kind of gone bigger than it needed to. But I
Speaker 1: guess my own read, which certainly could be wrong, is
Speaker 1: that once that's the discussion, then the accommodation is going
Speaker 1: to be upheld, because you're still talking about the broad
Speaker 1: range of discretion that agencies have within which to move. So,
Speaker 1: you know, whether or not has a policy matter. A
Speaker 1: particular justice might think that this accommodation is broader than
Speaker 1: the Religious Freedom Act would require. That's perfectly consistent with saying,
Speaker 1: but the agency has the authority to do it if
Speaker 1: it wants. That was kind of how I read it.
Speaker 1: And you know, even Justices Kagan and Brier and I'm
Speaker 1: not suggesting that they're gonna side with the Little Sisters.
Speaker 1: I wouldn't predict that so much, but I took them
Speaker 1: in a similar way to be acknowledging that this is
Speaker 1: a case really about the power of administrative agencies to
Speaker 1: act within the broad describe shi that Congress has given them.
Speaker 1: And it seems to me that once that's the terrain
Speaker 1: that the justices are arguing about, that that points in
Speaker 1: the direction of of a win for the Little Sisters
Speaker 1: in this particular case. Well, Justice Brier said, can't you
Speaker 1: work it out? And isn't that what the Supreme Court
Speaker 1: asked them to do? The Yeah, in the zoo Bic case.
Speaker 1: You know, if you remember, it was right after Justice
Speaker 1: Scalia passed away and the Court was down to eight people,
Speaker 1: and rather than issue a four four opinion that kind
Speaker 1: of really cut to the heart of the matter, they
Speaker 1: put together a kind of an to nothing ruling that
Speaker 1: didn't really do much but basically said, go fix this.
Speaker 1: And I think the litigation position of the government, the
Speaker 1: federal government and of the Little Sisters is that, well,
Speaker 1: that's what we did after the zoo Bic case, said
Speaker 1: go work it out. We did, and the way we
Speaker 1: worked it out was with these new regulations which provide
Speaker 1: a pretty generous accommodation for those companies, those employers who
Speaker 1: have objections to this. And this litigation has been going
Speaker 1: on now for close to a decade and this is
Speaker 1: an for on our part too to kind of put
Speaker 1: this litigation to a to a halt and to move on,
Speaker 1: recognizing that very few employers have actually tried to invoke it,
Speaker 1: and that you know, for the vast majority of employers
Speaker 1: the contception coverage mandates not a problem. But that's a
Speaker 1: new broad accommodation means that a lot of the litigation,
Speaker 1: which has occupied so much time of court, can kind
Speaker 1: of be put to rest. So I guess that's that's
Speaker 1: what the federal government would say in this case. We
Speaker 1: we did what the court told us to do. In
Speaker 1: the Zoobic opinion. Obviously, there's always a range of options.
Speaker 1: The decision can even either be very narrow or very broad.
Speaker 1: Tell us what some of the options are. I don't
Speaker 1: think there really are any sort of sweeping broad outcomes
Speaker 1: that are on the table. This isn't a case where
Speaker 1: the courts being asked to create a new constitutional right
Speaker 1: or to reverse the precedent having to do with religious
Speaker 1: freedom and so on. I think from the perspective of
Speaker 1: the Little Sisters and of the national government, really all
Speaker 1: they're asking is for the Court to reaffirm that agencies,
Speaker 1: when they're acting within the scope of the authority that
Speaker 1: Congress has given them, have a wide range of discretion. Again,
Speaker 1: the issue here is not whether the religious freedom restoration
Speaker 1: that requires this particular accommodation, but whether it permits it.
Speaker 1: And I think it's likely that it does. Some of
Speaker 1: the arguments against the accommodation, if they were accepted, would
Speaker 1: be a pretty big deal. So there's the arguments that
Speaker 1: made that the First Amendments established from clause does not
Speaker 1: permit governments to accommodate religion if those accommodations would impose
Speaker 1: any substantial costs on third parties, and law professors like
Speaker 1: me and others argue about that position, but I don't
Speaker 1: believe that's the laws that stands, And I think if
Speaker 1: if a majority of the Court were to adopt that,
Speaker 1: that would pretty interesting change. But I don't think that's
Speaker 1: going to happen. So my own view is that there's
Speaker 1: certainly a lot of interest in this case. It's been
Speaker 1: bouncing up and down a long time in the Supreme
Speaker 1: Court and has kind of culture war dimensions and so
Speaker 1: on that as a legal matter, regardless of which side wins,
Speaker 1: it's likely to be on relatively narrow, relatively technical grounds. Now,
Speaker 1: there are some really intriguing possibilities the Court could change
Speaker 1: the rules about standing, for example, whether state governments have
Speaker 1: standing to sue for reasons like the ones the states
Speaker 1: have invoked here. There's an interesting question, like I said earlier,
Speaker 1: about the power of federal courts to issue injunctions that
Speaker 1: cover the whole country. Get A lot of academics and
Speaker 1: others have been thinking a lot about this, But in
Speaker 1: terms of the religious freedom dimension, this case doesn't really
Speaker 1: hold out the prospect of any sweeping changes or innovation.
Speaker 1: Thanks rich That's Richard Garnett of Notre Dame Law School
Speaker 1: coming up next on Bloomberg Law, robot calls and toilet flushes.
Speaker 1: At the Supreme Court arguments, everyone seems to agree that
Speaker 1: no one likes robocalls. Chief Justice John Roberts expressed that
Speaker 1: sentiment during a case on Wednesday in which political groups
Speaker 1: are challenging the exemption to the ban on robo calls
Speaker 1: that allows the collection of government debt. And it's an
Speaker 1: extremely popular law. Nobody wants to get robocalls on their
Speaker 1: cell phone. The idea that Congress would embrace that result
Speaker 1: simply to save this government debt collection, Uh, they'd have
Speaker 1: to be very anxious to be more unpopular, uh than
Speaker 1: they otherwise would be. The court almost made it through
Speaker 1: four live oral arguments by phone without a major mishap,
Speaker 1: but towards the end of these arguments there was the
Speaker 1: unmistakable sound of a toilet flushing live. But the FEC
Speaker 1: has said is that when the subject matter of the
Speaker 1: fault ranges the topic, then the call is transformed. But
Speaker 1: the justices completely ignored the distraction and went on with
Speaker 1: the arguments. Joining me to talk about the substance of
Speaker 1: this case under the Telephone Consumer Protection Act or t
Speaker 1: c p A is Christine Riley, a partner Manette, Phelps
Speaker 1: and Phillips. So Christine tell us about the main issue
Speaker 1: in the case. And the interesting issue about this particular
Speaker 1: argument is it is about the t c p A
Speaker 1: and it is about a specific exemption, but there are
Speaker 1: far broader implications of this particular case. So going back
Speaker 1: to the first question, we're really looking at a very
Speaker 1: specific exemption that was created by Congress in two thousand fifteen,
Speaker 1: and specifically, there was an exemption put into the t
Speaker 1: c p A that would allow calls made to cell
Speaker 1: phones if they concerned federal debt collection, and that was
Speaker 1: carved right into the automated calling the restrictions. The question
Speaker 1: that came up from a political group a a PC
Speaker 1: was basically asking why is that fair? Why is it
Speaker 1: fair to have this exemption that is in favor of
Speaker 1: the federal government debt collection, and that's the exclusion of
Speaker 1: other types of call such as, for example, political calls.
Speaker 1: If political agencies or organizations want to make calls, they
Speaker 1: need special consent under the u c p A if
Speaker 1: they're using some type of automated system. So the question
Speaker 1: in front of the Supremes was is that government debt
Speaker 1: collection exemption constitutional? Is it a violation of the First
Speaker 1: Amendment free speech? And if the answer to that question
Speaker 1: is yes, it is unconstitutional, is the remedy then to
Speaker 1: basically just cut that piece out of the statute and
Speaker 1: go back to the status quo. The broadom implication, of course,
Speaker 1: is an argument being made by the political consultant here
Speaker 1: who say that even if you find this particular exemption
Speaker 1: is unconstitutional, the remedy that they're asking for is that
Speaker 1: the Supreme Court get rid of the entire provision on
Speaker 1: automated calling, rather than just cutting out the part that's bad.
Speaker 1: And that's really where the fight is. Give us a
Speaker 1: feel of what the justices seem to be concerned about.
Speaker 1: There definitely seems to be a pretty prominent concern on
Speaker 1: this particular exemption and whether or not it's what we'd
Speaker 1: consider to be content based, meaning are you making some
Speaker 1: restriction on free speech based on the content of that message?
Speaker 1: And there are lots of questions that get to that
Speaker 1: particular issue, and that's going to be a problem for
Speaker 1: the government because they're going to get in this situation
Speaker 1: where if the Supreme Court is going to say that
Speaker 1: the standards going to be one about strict scrutiny and content,
Speaker 1: there is a good chance of the Supreme Court is
Speaker 1: going to hold that that is fun constitutional, and that's
Speaker 1: really going to be something that then leads itself to
Speaker 1: the second and bigger question on sever ability. Well, this
Speaker 1: Court is known for broad views of the First Amendment.
Speaker 1: So did any of the justices talk about sever ability?
Speaker 1: I think almost every single judge, if not every judge,
Speaker 1: did ask about that particular question. You know. I think
Speaker 1: Justice Alito really put a nice spin on it when
Speaker 1: he came out and said I find the severability question fascinating,
Speaker 1: and Justice Kavanaugh came and said, this case, you know,
Speaker 1: really is about severability. It's about leveling up or leveling
Speaker 1: down on speech. Justice gor Vitch that said, well, why
Speaker 1: can't we just go back to the status quo? Lots
Speaker 1: of justices were noting that the t c p A
Speaker 1: is an extremely popular statute, and Chief Justice Roberts noted
Speaker 1: that in particular, extremely popular statute, and they wondered why
Speaker 1: a statute that's been on the book for over twenty
Speaker 1: years where there has not been this challenge that goes
Speaker 1: to the heart of the t c p A. And
Speaker 1: the question they're asking and grappling with is why not
Speaker 1: just cut it? If there really is a problem on
Speaker 1: it being a content based distinction and that it's not
Speaker 1: in conformity with the Constitution, why is the remedy not
Speaker 1: to just cut it out? And I think that's really
Speaker 1: where the the biggest fight seems to be leaning from
Speaker 1: the justices. Well, there are a lot of controversial cases
Speaker 1: before the court, and this case isn't that well known.
Speaker 1: But you can bet that if the justices allowed robo calls, now,
Speaker 1: that would be one thing that consumers across the country
Speaker 1: would be really upset about. Absolutely. And you know, I've
Speaker 1: always said that this case no matter who you are,
Speaker 1: what work you do, and as a lawyers say, whatever
Speaker 1: side of the vur on, there is a general distaste
Speaker 1: for having unwanted, unexpected calls to your cell phones. And
Speaker 1: I think that theme really resonated with the justices. Many
Speaker 1: of them were making comments like, no one wants to
Speaker 1: get robo calls on their cell phones, and that's from
Speaker 1: the Chief Justice, so don't. Mayor made a whole number
Speaker 1: of comments about how she doesn't like scam robo calls.
Speaker 1: These are issues that everyone can relate to, and I
Speaker 1: think that's really going to pose an issue with this
Speaker 1: particular Supreme Court and deciding whether they take the nuclear
Speaker 1: option of just cutting the guts and the heart out
Speaker 1: of the t c p A. Because you have a
Speaker 1: statue on the book that is extremely popular. It is
Speaker 1: the source of many private class action litigations across the country.
Speaker 1: Consumers rely on it, and the really big debate here
Speaker 1: is are you going to get rid of a statute that,
Speaker 1: for many people in the country is something that they
Speaker 1: feel is very important to their privacy considerations. And that's
Speaker 1: really going to be a tough pill for the Supreme
Speaker 1: Court to swallow the idea of just undoing this portion
Speaker 1: of the t c p A that has been in
Speaker 1: existence for decades now. So how do you think the
Speaker 1: court would be able to get around the obvious First
Speaker 1: Amendment concerns with the A. I think that it's going
Speaker 1: to be difficult for this court to get out of
Speaker 1: the First Amendment is us. There is certainly an appeal
Speaker 1: to the idea that by making a special exception for
Speaker 1: the federal government and debt collection, that you are somehow
Speaker 1: judging the content of those calls. And there is an
Speaker 1: appeal to the idea of why should that be, Why
Speaker 1: should the federal government get a special exception for their
Speaker 1: own debt? What about other commercial actors or even state
Speaker 1: governments that have collection of debt concerns and want to
Speaker 1: make outreach. I think it's going to be difficult for
Speaker 1: them to look at that question and find that that
Speaker 1: it's not on constitutional or another way of saying it is.
Speaker 1: I think it's going to be difficult for them to
Speaker 1: not rule that it is in its violation of First
Speaker 1: Amendment unless they come up with a different way of
Speaker 1: addressing the issue, either or not signing a different standard,
Speaker 1: or as justice of a mayor noted there was also
Speaker 1: this idea of maybe we should remand it back to
Speaker 1: the Fourth Circuit as looking at some alternatives that the
Speaker 1: Fourth Circuit didn't look at. So if they want to
Speaker 1: punt on the constitutional issue, there are ways to do that,
Speaker 1: and one is to throw it back to the Fourth
Speaker 1: Circuit and say, look at another issue and try again,
Speaker 1: tell us a little bit more about what the Fourth
Speaker 1: Circuit decided here. So the Fourth Circuit, just like the
Speaker 1: Ninth Circuit, has decided that this particular exception for federal
Speaker 1: debt collection is unconstitutions it's content based. There's no reason
Speaker 1: why the federal government should be able to get a
Speaker 1: special exemption that other parties don't get to have. That's
Speaker 1: it a violation of free speech. But both of these
Speaker 1: circuits have looked at the same question of what the
Speaker 1: remedies and they both have said the same thing. Just
Speaker 1: sever out the bad part and leave the rest. And
Speaker 1: that's really, I think what the Supreme Court justices are
Speaker 1: looking at. Chief Justice noted that not only is it
Speaker 1: a popular statute, but isn't the the obvious solution here
Speaker 1: just to cut it? But why can't we just go
Speaker 1: back to the status quo? That's really where I think
Speaker 1: we likely end up coming to and where this case
Speaker 1: really gets decided. The political consultants say that they want
Speaker 1: to take surveys and things, how would you do that
Speaker 1: by robocall? So where this question becomes an issue for
Speaker 1: the political consultants is they want the ability to make
Speaker 1: political calls, surveys, or even just delivery of messages to
Speaker 1: your cell phones by using certain automated means, including prerecorded
Speaker 1: voice messages and what we call autodials messages. And the
Speaker 1: reason they want to do that is because it's far
Speaker 1: more efficient to be able to reach a larger number
Speaker 1: of people by using some automation. The problem that they're
Speaker 1: running into is the ccp A has certain restrictions on
Speaker 1: when you can contact folks by phone, And unlike popular beliefs,
Speaker 1: it is not the case that it's just about marketing calls.
Speaker 1: That's actually in correct. There are restrictions on informational or
Speaker 1: political calls made to cellphone. If you want to use
Speaker 1: an autodialer to make a political message to a cell phone,
Speaker 1: you need to have what we call prior express consent.
Speaker 1: In other words, you need to have gotten that phone
Speaker 1: number from someone and they need to have voluntarily provided
Speaker 1: it to you within the scope of why you're calling.
Speaker 1: That's what they're upset about. They don't want to have
Speaker 1: to comply with that. They just want to be able
Speaker 1: to make calls anyway they want without having to worry
Speaker 1: about the ccp A. Thanks Christine, that's Christine Riley, a
Speaker 1: partner Manette Phelps and Phillips. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com
Speaker 1: slash podcast. I'm June Brasso. This is Bloomberg