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9:01: Sotomayor: “Counsel the difficulty in mind in this case has been just touched upon by Justice Alito… assume that this law is content based. I don’t see in the record any evidence by you of how small this exception is.”
9:00: Petitioner is really jammed up. Argues what challenger wants is irrelevant. NO good.
8:59: Alito: “In free speech case what complaining party is objecting to is a restriction on its speech… complaining party does not get what it wants” if severence takes place.
8:58: Advocate concedes: neither side has a case directly on point. This is truly issue of first impression for court in First Amendment. Huge deal.
8:57: Alito: severability issue is “fascinating”–“what is best precedent for application of severability analysis in case like this where arguably a regulation of speech is unconsttutional only because it containts a content based exception.”
8:56: Petitioner focuses on communicative content now. Kind of a change from its earlier argument on relationship.
8:556: Breyer focuses on economic regulation. very philosophical question.
8:55: Breyer: “what is content discrimination?”
8:54: Ginsberg: “switching to severance…” again suggests that severance is wrong remedy.
8:54: Already had more traffic on our site today than ever before. Again really appreciate all of you who are tuning in. Happy to be part of your day.
8:53: Petitioner is arguing that the “financial relationship” determines application of exemption. Bad argument (IMO.)
8:52: Ginsburg up (from a hospital bed?): “I don’t see how you can escape content-based distinctions.”
8:51: Petitioner’s counsel is on his heels but doing his best to suggest that cell phone users have same privacy interest. He is cut off.
8:51: Thomas asks about strict scrutiny analysis. Thomas says privacy interest “not nearly as great” with cell phones as landlines or “knock on front door.” Could be a set up —Martin v City of Struthers already held that restrictions on door knockers is not permissible under First Amendment.
8:50: Petitioner’s counsel is really struggling here. First two justices ask questions plainly suggesting that striking exemption is wrong remedy.
8:49: Justice Thomas up– remedy doesn’t seem to do anything for respondent to strike the exemption. “Seems to be taking speech away from someone who is not in this case.” WOW.
8:49: Petitioner turns to Congressional intent. “Tail wagging the dog” to strike down statute here. This is AMAZING folks.
8:49: “I wonder why in that situation the whole statute shouldn’t fall.” CJ’s words.
8:48: CJ cuts off argument– gets to severance question. “When we sever provisions its because they are illegal. here there is nothing illegal about the government-debt exception…” THIS IS HUGE.
8:46: Petitioner’s counsel trying to distinguish Reed. Seems like a long shot.
8:45: CJ says Reed plainly governs here in that content of speech in exemption is at issue. Seems to assure strict scrutiny will be applied here.
8:45: First question from CJ– “not looking at the content of the communication but rather more properly viewed as part of an economic relationship. don’t see how that gets you out of content category. still need to look carefully at what is being said…”
8:44: Focus moved to ATDS restriction now in petitioner’s argument.
8:43: Petitioner opens argument with focus on exemption.
8:42: Here we go. case just called to order.
8:39: Rebuttal argument in previous case.
8:34: Kavanaugh–most junior justice–is up. So this last argument will be wrapping up shortly.
8:32: While we’re waiting, you may want to review some of my recent First Amendment analysis to prepare for this.
8:30: Previous argument is really running long.
8:26: If this current argument is any indication we will see a VERY VERY active panel. Advocate cannot get a word in other than to answer questions.
8:25: Still waiting for previous argument to end. Justice Kagan currently asking questions.
8:18: Incredible how much traffic our site is receiving right now. Great to have you all with us.
8:12: Justices are really testy with advocates in prior case. Will be interesting to see if that spills over to Barr.
8:09: We will have a podcast up breaking down the SCOTUS argument and a definitive piece analyzing the outcome of the argument ASAP.
8:08: Really proud to be here to bring this to you live. Please forgive any typos or grammar errors. Just going to be moving as fast as possible and sharing thoughts.
8:06: Ten minutes or so before the big TCPA oral argument begins. I’ll be updating this feed as quickly as possible once argument starts. Will post most recent updates up top.
7:59: Ok, I’m late to the party but the argument has not yet started. I’m excited for this folks. Be sure to check out our video podcast in the meantime.
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