Justices skeptical of robocall law, but appear to want to keep it

[Elderberry]

SCOTUSblog by Amanda Shanor 5/7/2020

Argument analysis: Justices skeptical of robocall law, but appear to want to keep it

The Supreme Court heard oral argument yesterday in Barr v. American Association of Political Consultants. The case is one of a handful this spring that, because of the pandemic, the court is hearing by telephone with the public listening in.

That’s perhaps fitting because the case is itself about phone calls—cellphone robocalls in particular.

The question before the justices yesterday was whether the 1991 Telephone Consumer Protection Act’s ban on robocalls to cellphones, or an exception added to it in 2015, violates the First Amendment’s free speech clause. And, if so, whether the proper remedy is to sever the 2015 exception—which allows robocalls to collect government-backed debts— from the act and strike down that provision, or to invalidate the entire robocall ban.

After over an hour of argument, most justices appeared convinced that the law was “content based”—a First Amendment term of art that refers to a law that applies differently depending on the content of the expression and is strictly scrutinized by courts—and likely unconstitutional. But the justices also appeared about as thrilled as the rest of us at the prospect of endless robocalls to our cellphones. Their questions largely focused on severability, suggesting that the harder question is not whether the law is unconstitutional, but what the correct remedy is.

More: https://www.scotusblog.com/2020/05/argument-analysis-justices-skeptical-of-robocall-law-but-appear-to-want-to-keep-it/#more-293699