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Well folks another opinion day has come and gone at the US Supreme Court with no ruling yet on the bigBarr v. AAPCchallenge to the TCPA.

Traditionally the Supreme Court clears its April docket with rulings by the end of June. With a set Monday calendar to release opinions and a likely additional release date this Thursday, that leaves only TWO days left (the 25th and the 29th) for the Supremes to enter their final vote on the fate of the TCPA. If the traditional calendar sticks that is

Truth is, with two (traditional) opinion dates left the Supreme Court is still sitting on fourteen (14!) unissued rulings so this may end up slipping into July (although I certainly hope not since I have a big webinar to discuss the ruling set up next Tuesday, June 30, 2020. Ha!) Notably, the Supremes seem to be issuing opinions in rough order of argument, which means there are still six cases ahead of AAPC on the docket. Obviously, however, the Supreme Court canand willissue opinions in any order as they are finalized so this isnt a first come first served (TCPA) world.

But since we are all waiting with baited breath, lets go through a few possible outcomes here. As a refresher, the Supreme Court is reviewing the TCPA inAAPCon a challenge by a political consulting organization arguing that the TCPAs government-backed debt exemption is unconstitutional. There are a number of permutations to the challengeas was made clear at oral argumentand it is not entirely clear whether the Supremes will scrutinize only the exemption or the restriction itself.

Since TCPAWorlddwellers are becoming constitutional law scholars, lets also recall a couple basics of First Amendment jurisprudence:

While there is no doubt that a content specific statute must meet strict scrutinya very high test it is unclear whether that scrutiny is properly applied to the exemption in this case or to the restriction itself. The briefing of the parties below focused solely on the exemption but in the briefing on appeal to SCOTUS and in oral argument there has been noticeable creep toward arguments (for and against) applying scrutiny to the TCPAs restrictionsashift that may or may not be entirely attributable to my loud-mouthery.

So with all of this recalled, here are the possible outcomes in no particular order:

Why this might happen:AsProfessor Epps explained inUnprecedented14the doctrine of content neutrality has expanded greatly over the past few decades, arguably spiking to exhaustion inReed.It is possible that the Supreme Court usesAAPCas a vehicle to roll back (perhaps significantly) on the application of strict scrutiny in First Amendment challenges and re-focuses its application solely to instances of viewpoint specificity. (Translation: the Supreme Court might use the TCPA as an opportunity to give Congress more power to regulate speech in a neutral manner.)

Why it shouldnt/wonthappen:I mean, the TCPA is content-specific under existing case law so the Supreme Court would really have to depart fromReedin a clear and decisive way to get here. And judging by thequestions of the Justices at oral argument, this just isnt going to happen.

Why this might happen:This would be a pretty weird outcome because it would require the Supreme Court to find collecting government-backed debt is a compelling governmental interest, which is tacky to say the least. Still some district courts have reached this conclusion so it is not impossible.

Why it shouldnt/wonthappen:The Government did not even advance this argument and none of the Justices seemed slightly interested in it at oral argument. This seems like the most unlikely outcome.

Why this might happen:Really this is what should happen. The focus here would be on the restrictioni.e. the TCPAs ban on the use of ATDS/pre-recorded voice messages to call cell phonesand not the exemptioni.e. the ability of government-debt collectors to make calls. This makes more analytic sense since the First Amendment prohibits restrictions on speech not permissions (is that a word?) on speech. Plus the TCPA really should survive even strict scrutiny if the TCPAs ATDS restriction is read narrowly. So this approach allows for First Amendment doctrine to be logically applied AND for the TCPA to be upheld. I mean, feels like a win/win (since presumptively the Supreme Court does not want to strike down the popular statute.)

Why this shouldnt/wont happen:No one else thought of it but me? This actually seems to be the right answer here, but it simply wasnt briefed or argued and none of the Justices asked any questions about it from the bench. Right or wrong, the focus inAAPCseems to be primarily on applying scrutiny to the exemption and not the restriction and the assumption seems to befor whatever reasonthat the level of scrutiny to be applied to the restriction would be lower intermediate scrutiny because the content-specificity arises in the exemption and not the restriction itself. (Translation: everyone is elevating form over substance for some reason and it doesnt seem like thats going to change now.)

Why this might happen:Well, this is what the two courts of appeals below did so why wouldnt the Supreme court just do the same thing? This seems to be the odds on favorite for most observers but I think it is relatively unlikely (as I explain below). But the ruling here would come down to Congressional intent the TCPA includes a severance provision suggesting that Congress intended the exemption to be cast aside if it was unconstitutional. So the Court should do what Congress intended, right? But really this is theeasiestway for the Supreme Court to uphold the popular TCPA it is effectively a punt.

Why this shouldnt/wont happen:There are a bunch of problems with it. First, it applies scrutiny to the exemption rather than the restriction which is just flat the wrong analysis in a First Amendment case as opposed for instanceto an Equal Protection challenge. Second, it would result in the Supreme Court expanding a restriction to cover more speech, in a manner that it has never done before. Third, it would impact the substantive speech rights of non-parties to the case without notice or an opportunity to be heard. Fourth, it would afford a remedy to the Plaintiff that it did not seek and lacked standing to seek. Fifth, it would deny any remedy to a successful Plaintiff challenging a statute on First Amendment grounds. Sixth, there is nothing wrong with the exemption standing aloneagainst the First Amendment does not ban permissions on speech it bans restrictions so striking it makes no logical sense. Setting all of that aside, it just doesnt make sense that the Supremes would grant cert. on this issue when there was no split of authority below. There was areasoncert. was granted here and it wasnt just to rubber stamp what the appellate courts did.

Why this might happen:If the Supreme Court applies scrutiny to the exemption this is the result that makes the most doctrinal sense. The restriction is being applied unevenly by virtue of the exemption. Striking the exemption works violence to logic and law (see above) so there is really no other coursethe restriction must fall.

Why this shouldnt/wont happen:The TCPA is a popular statute and the Supreme Court doesnt want to allow a bunch of robocalls. There really is no doctrinal hold up here it is the right thing to do, assuming scrutiny is applied to the exemption that is.

Why this might happen:This is likely for the same reasons as 5. given thatno onehas raised the fact that certain provisions in the TCPA are not effected by the government-backed debt exemption and the issues of content-specificity it creates. Plus the entire dang statute is riddled with content specificity issues the FCC has created a number of content-specific exemptions and provisions like the DNC restrictions on marketingplainlylimit speech based on the content of the message.

Why this shouldnt/wont happen:Here is where the doctrine of severance properly comes into play. Plaintiffs below did not challenge any other content-specific provision of the TCPA other than the government-backed debt exemption. So only those restrictions of the TCPA impacted by that exemption should be struck down and severed from the statute. If folks have problems with he rest of the statute theyll just have to bring their own Supreme Court appeal. Still though, it is a little odd that this was never briefed or argued leading to a surprisingly high (15%) chance that the entire statute is gone.

Why this might happen:None of the other results are all that satisfying. Perhaps we see a carve out for political speech. Perhaps we see a remand for further fact-finding on the impact of robocalls. Perhaps there is further information needed on government-backed debt. Perhaps Justice Breyers approach of all law is speech and whats the First Amendment anyway? (not a real quote) is accepted and the TCPA brings down the freedom of speech entirely. Who knows.

Why this wont happen:Not sure why it would. The Supreme Court generally doesnt go off the rails where it doesnt have to and there was very little discussion of middle ground approaches at oral argument. Not much reason to suspect a screwball here, but you never know.

So adding it all up:

Oh and in case you missed our great coverageor just want to re-live anything our LIVE feeds of the oral argument arehereandhere. Our definitive analysis of the oralargument is here.

Stay tuned.

Read more:
What the US Supreme Court Might Do With the TCPA - The National Law Review