We are now lucky enough to be joined by scott nelson and Robert Mcnamara. Nelson filed the brief in support of the president of the United States who is a petitioner in the second case we which is bar versus American Association of political consultants. He filed his brief on behalf of Public Citizen in the public foundation. Scott nelson is an attorney at the Public CitizenLitigation Group in washington. Hes been there since 2001. He is a former lawyer for Justice Byron white on the u. S. Supreme court and we are honored to have them today. Is senioramara attorney with the institute for justice and he has filed a brief in support of the state of pennsylvania who is the respondent on behalf of the institute for justice. Since 2006 with them and litigates constitutional cases to protect free speech, Property Rights and economic liberty and we are honored to have him as well. Thank you so much for joining us. Thanks for having me. Thanks. With the basic argument in this case about robo calls. There was a great moment in the case were Justice Breyer dropped off the phone and said i had a phone call. It wasnt a robo call but it reminds us of the fact that our cell phones are treated differently than our home phones. I have unplugged my landline because i get these robo calls from the person who had my landline 10 years ago who is in a Government Debt collection agency. Callperson continues to because those calls are authorized on land lines but they are not authorized on cell phones. The essential question in this case is whether it was a form of content discrimination for congress to say you cannot make those Government Debt collection calls on cell phones but you can on land lines. By aase was brought Political Action group that said their political speech was being discriminated against by not being able to make those calls. Respondentmara, the goes first here so tell us how you see the central issues in the case and how you believe the court was framing them. The central issue in the cases that congress has made a generally illegal to make robo calls to cell phones which all of us hate robo calls. But not all robo calls. If you make the robo call to talk somebody into paying back certain kinds of federally backed debt, thats allowed. A contentbased restriction on speech. If im am allowed to call you and say a but not allowed to call you and sayb, thats a restriction based on what im allowed to say and contentbased restrictions on speech get strict scrutiny. Most members of the court generally seem to accept that Justice Ginsburg started her first question with i have no idea how you get around the contentbased question here. There is a second question lurking in the background that took up a lot of time and rightly so. What the lower court did is said ok, i will grant you that this is a contentbased restriction on speech and what im going to do is im going to enjoin im going to strike down the exception to the general rule. I will say now the law applies to robo calls that are Debt Collection calls as well. Thatsblem with that is not usually what we do when we deal with discriminatory laws. What we usually do is we enjoin the part of the law that violates the part of the constitution is nothing that violates the constitution about not prohibiting debt calls. What violates the competition is preventing political groups in engaging in political speech tole also allowing people call about debt. This goes beyond the boundaries of just robo calls. Constitutional laws about one kind of discrimination or another. In the First Amendment, we say you cannot enforce this law against me because you are not enforcing it again similarly situated people who say different stop. You could also say you cannot enforce the law against me because you were enforcing me based on my race or youre not enforcing against anyone and only enforcing against me because you dont like me. That is discrimination. What courts do when those situations come about, if you are right, you are right, thats discriminatory in the government cannot do this to you. They dont say you are right, the federal government rounds up people of a different race and better go round up some people to enforce this law again. Below turn that on its head and said congress one of these people to be able to speak and they want to collectors to be able to speak. We will order the executive branch to go out and stop them without making Congress Make that difficult judgment. Thats a loss of what you see the court wrestling with is what that thish the fact is clearly a contentbased law. Should the justices rewrite it or is that the job of congress . Does the law violate the First Amendment and is it a contentbased description . Should we just take out the exemption for the debt collectors or should we strike down the entire lot . Entire law . The petitioner should have gone first before the court. Solicitor general was arguing go behave overly go. Scott nelson is arguing on behalf of the petitioners. Apologies for reversing the order but that will keep things interesting. Perhaps you can give us a sense of what you heard in the courts answer to those two questions, how is a grappling with the contentbased discrimination in which of the right remedy be . As to the first question, i think its important to start out by giving some background on what the law is. Its called the Telephone Consumer Protection Act and what it does is prohibit the use of a particular kind of device and automatic dialing system or recorded message to make calls to cell phones. That, in itself, everyone agrees is neither a restriction on the does itof speech nor prevent anyone from talking about any subject. The problem the plaintiffs have seized on is that congress, about 25 years after first enacting the Telephone Consumer Protection Act, created an exception to it that allowed calls made for the collection of Government Debt or government guaranteed debt. That is the basis for the argument that that the other suddenly,w made that this restriction was just a restriction of the mattering and the technology where you place in the call. It has placed a limit on speech. The governments first answer to not a lot ofill singled out speech for regulation based on content. I think Justice Kagan put her finger on it. Regulation of a particular type of Economic Activity, Debt Collection. Its a regulation of what means can be used to engage in that sort of Economic Activity. As Justice Breyer pointed out, regulation of any can of an Economic Activity doesnt usually get heightened scrutiny under the First Amendment. Justices in Justice Kavanaugh was very straightforward about this, too, or nope of the idea that you have to look at what is said in the call to determine what the restriction is and that may mean that its contentbased. That leads to the next question which is, in the jargon of lawyers, severability. Its become a theme in many cases that are coming up at the end of this term in the beginning of next. What happens when you have a law that otherwise is perfect he fine but it gets some small thatsion added to it arguably makes it constitutionally problematic. Do you strike down the whole law or do you segregate out that piece . What was interesting in todays argument, the challengers to the law argued that that principle cannot really be applied if the consequence will be that the law is going to regulate more speech. They got pushed back on that from across the board. One of the really fascinating things about this new format is, for the first time in 30 years, we get to hear what Justice Thomas is thinking about a lot of these cases. I think he asked a very incisive for. Ion to the lawyer the challengers he said, isnt your argument here that the problem with his law is that its got this provision that discriminates in favor of this aspect of the speech. If thats the problem, why dont we just excise that piece of it . You heard a very upfront justicet from the chief [inaudible] [indiscernible] i think the core [indiscernible] thank you so much. We lost you at the end of it but thank you for calling out the importance of Justice Thomass question about the right remedy wheree chiefs response normally congress would proceed category by category. I will ask you about Justice Thomass question. He also noted the privacy interest is greater in a then inat an ace a cell phone and severing the law would take certain things away from both. It wouldnt give them the probably sauce. Is it right that the privacy interest is greater on a landline . By calls toritated my cell phone. Why couldnt congress treat cell phones and robo calls differently full stone severability was crucial to the respondents position. Maybe we could just include you, the political groups, but not strike them rule law for everyone else will respond. Privacy is an interesting word to use to describe with the government is really trying to do here. Are gettingt people information about me that i dont want them to have which is what we mean by privacy. There must be a better word for the harm that the law is aimed at witches intrusion. Im not mad these people have my phone number but im mad that they are using my phone number and bothering me when im putting my kids to bed. Thats intrusion. I think the response to the idea that this is just congress. Pening up speech governmentbacked debt is not the most intrusive kind of call. If you want to chart the level of annoyance people feel when calls thato calls, they need to pay picked their Student Loans are probably more annoying. It suggests thats is not what congress is doing, congress is kowtowing to certain powerful interests and favoring that speech over other speech in a way that historically, they have been skeptical of. Speech,ant to suppress you need to suppress everyones speech. If you have speech that will get some money for you or speech that has a more effective lobbying group, that suggest that maybe youre are not as serious as you thought you were about the interests at stake. That starts to make us skeptical. I think Justice Thomass question gets to the heart of it. One difficulty of arguments of means itin this format makes it more difficult to read tea leaves. With all of the justices asking questions on both sides, its unsurprising that the the justices have hard questions for both sides because they are really smart and they ask the hardest questions they can think of. I think that is the crux of the , why problem with the law not excise the one little thing and make the government punish more people. The answer goes back to the there is a problem and how we are talking about what courts do. We keep saying the courts stretched down laws. Courts dont strike down laws. The role the law of islam the book. The court can say youre not allowed to enforce this law against these people. I think Justice Sotomayor may be the law far as enjoying and im not going to and join it as anyone else. Thats a discretionary question. It can issue an order saying youre not allowed to force the law against these people or can issue an order saying we insist you enforce the law against these other people who are not participating in the process. We will demand you go arrest them and enforce the law against them. Congress did not want to enforce against them and thats an astonishing order. Thats not usually what the cords do. Andou are sitting down thinking about the law from legislative draftsman shift, you probably get rid of the small exemptions. As the thats what i think a Sherlock Holmes reader would do. Calls is outs robo if if congress had the authority, they would ban all robo calls but thats congresss job. The courts job is not to sit down and rewrite the loop the legislation. Its just an issue an order in the general rule is that the order is in order saying you cannot enforce this law against these guys in this circumstance. The order issued by reviewing courts, you must go forth to take away rights from third parties not before us. Thank you for all that and thank you for identifying the a kind ofis case but intrusion on the seclusion of our homes now that we carry the cell phones around with us. His famous dies, and article identified a series of seclusion,rusions on false light, intentional of inflection and speech that offended our dignity. Diesard justice ren invoked by Justice Breyer who talked about his third category of economic speech was generally was less closely scrutinized. Justice brandeis, in his famous hisement eventually change mind and concluded two strong protections for privacy would infringe free speech. He said ive the philosophical question. What is content discrimination . All human communication is carried on through speech. What was the implication of his question and would holding otherwise regulation is subject to a higher degree of scrutiny whenever it makes with that call many forms of regulation into question . That is, in fact, what corporate interests have been inng now for several years light of the courts broad statements in some cases about the meaning of content discrimination. They challenged all manner of restrictions on commercial , as Justice Breyer explained, is carried out through communication such as the offering of securities, for example. Is carriedase that out through free speech. Its usually been regarded as something thats fair game for government regulation. Even though those regulations would not apply if you are talking about hamburgers rather than the security. I think thats what Justice Breyer is worried about. And a host of cases, we have seen that commercial entities that are relisting economic regulation have made their argument. For the challenges said that is not a problem because as long as youre only regulating commercial space, contentbased discrimination is just fine. I actually agreed with that is on that specific statement. Unfortunately, a lot of commercial speakers who are trying to evade regulations have been challenging that and they been relying on the same line of cases that the challengers are relying on here, to try to characterize economic regulation and speeds regulation. I think this is really a case in point. Thatis not about saying you can call somebody if you are advocating on behalf of of abortion rights but not here. Very does advocating this is a particular form of technology which can be used one particular commercial activity, Debt Collection. It cannot be used for other calls. Robertn to agree with that that particular exception is a very bad idea as a policy matter. I the people would be happier if gil and been to allow Debt Collection to be carried out to robo calls. Not everything they disagree with his enclosed two snowfalls even if it is, i want to push back a little bit against the idea that its not what courts remedies to their the constitution that is problematic. When dealing with problem with the constitutionality of the statute you do you dont dont just look at the leaf that they are providing for holes what a court do, to put it in roberts terms, is it would issue an order saying yes, this statute may be enforced as long as this exception is rendered inoperable. Courts actually do that quite frequently. There was a case a couple of years ago where someone came into Court Challenging and average in law that favor the citizens whoomen were born overseas over the children of male citizens who the Court Says Yes go that soon the theditional but challenger who was a child of a male citizen was out of luck because what the court says was we will remedy that by saying that the preference that has been given to the children of many citizens is what is valid. You dont get any relief and theher does the children of women and there are 31 streets. Where iisely thank you so much for showing us the options the court facing faces in charge of options. Justice ginsburg often cited a said thatstice harlan when there is a violation of equal protection, the remedy is either to extend the benefits in the class, a manner being discriminated against or to strike it down for everyone. Of whats theion basis here is whether to extend or exclude and what is your response to the chiefs very stark question. Said no one wants to get no one wants to be called on cell phones. That would make them more unpopular if they enforce that and they did not want that. There are many cases when you talk about a government benefit where the court can extend the benefit or eliminate the discriminatory benefit but theres a difference between government benefits. There are cases about punitive laws that restrict individual liberty. Its a stretch to say the courts routinely do this. The immigration case is the only time in many decades that we see the court doing that and Justice Ginsburgs opinion in that case is clear that the only reason she is leveling down instead of leveling up is that leveling up would create a situation that is so unthinkable, it would be unconstitutional on its own merit. Its not something courts routinely do that says go forth and punish more people. It would be an unusual remedy in this case. The chief is probably right that nobody in congress would want to say its a freeforall for robo calls but i also think that its congresss job to say that in the first instance, that usually is the legislatures job to restrict liberty, not the courts job to say you have not restricted enough