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Illustration: Eniola Odetunde/Axios

The future of a major nuisance for millions of Americans hangs in the balance Wednesday as the Supreme Court weighs whether federal limits on robocalls are unconstitutional.

Why it matters: A decision barring restrictions on robocalls could open the floodgates to many more than the tens of billions Americans already endure — and expand the treatment of corporate activities and political organizations' expenditures as constitutionally protected speech.

What's happening: As part of its limited spring docket of cases argued via teleconference, the Supreme Court is hearing oral arguments Wednesday in Barr v. American Association of Political Consultants Inc.

  • At issue in the case is a 2015 amendment to the 1991 Telephone Consumer Protection Act (TCPA), the law that places limits on the use of robocalls and is the foundation of all the mechanisms federal regulators have to enforce those limits. The 2015 change exempts callers that are collecting debts owed to the U.S. government, such as federal student and housing loans.
  • The question before the court is whether that carve-out violates the First Amendment by establishing a content-based test for what calls can and can't be made. The Fourth Circuit Court of Appeals last year ruled that it did and said the exemption should be stripped out from the law.

Yes, but: If a majority on the Supreme Court agrees that the TCPA as amended is unconstitutional, it could also take aim at the statute instead of the exemption, hollowing or tossing out the 1991 law and regulations that depend on it.

  • In other words, such a ruling would broadly treat robocalls as protected speech that can't be abridged by the government.

Throwing out the law would be an extreme outcome. But some parties weighing in on the case are urging the court to take broader slashes at TCPA.

  • Facebook in an amicus brief asked the court to toss out severe restrictions TCPA places on the use of autodialers, a central piece of the law. The company said the law's definition of what constitutes an autodialer is squishy, arguably applying to all modern smartphones and opening the door for any number of unconstitutional limits on speech.
  • The U.S. Chamber of Commerce made a similar argument in its own brief, criticizing both the autodialer restrictions and limits placed on calls made to cell phones. "The remedy for a First Amendment violation is more speech, not less," the group wrote. "If the TCPA violates the First Amendment, the prohibition must go, not the exemption."

Justice Brett Kavanaugh, for one, has shown sympathy in the past for an expansive reading of the First Amendment as superseding laws meant to restrict corporations' behavior.

  • While still on the D.C. Circuit, Kavanaugh authored the dissent to the 2017 ruling that upheld the (since-reversed) Obama-era net neutrality rules. One of his two core arguments was that the rules abridged the First Amendment rights of ISPs by overriding their editorial discretion over content that passes through their networks.
  • More broadly, the 2010 Citizens United decision, citing the First Amendment rights of corporations and private organizations, lifted many restrictions on political ad spending.

Our thought bubble: Most Americans want fewer robocalls in their lives. Today's laws aren't very effective at limiting them, but striking them down would likely lead to even more calls.

  • In that case, winners would include political groups aiming to spend big ahead of the November election, and conservatives who champion the rights of corporations and the idea that spending money is a form of speech.
  • Losers would be those Americans who want to be left alone.

Go deeper

Aug 11, 2020 - Technology

Court: Qualcomm's "no license, no chips" policy isn't anticompetitive

Photo illustration: Avishek Das/SOPA Images/LightRocket via Getty Images

Qualcomm isn't harming competition when it forces device makers to license its technology in order to use its chips, a federal appeals court ruled Tuesday.

Why it matters: The decision, which comes from a three-judge panel in California's Ninth Circuit, tosses out a 2019 district court ruling that cast uncertainty around Qualcomm's business model and therefore the future of the smartphone industry.

Aug 11, 2020 - Politics & Policy

Trump says Kamala Harris was "extraordinarily nasty" to Brett Kavanaugh

In his first public comments since Joe Biden selected Sen. Kamala Harris to be his running mate, President Trump said Harris was "the meanest, the most horrible, most disrespectful" of any senator during Supreme Court Justice Brett Kavanaugh's confirmation hearings.

Why it matters: Harris, a former prosecutor who sits on the Senate Judiciary Committee, elevated her national profile significantly after grilling Kavanaugh in September 2018 about allegations of sexual assault. The highly contentious hearings ultimately did not stop Kavanaugh from getting confirmed by the Republican-controlled Senate.

4 hours ago - Politics & Policy

McConnell drops filibuster demand, paving way for power-sharing deal

Senate Majority Leader Chuck Schumer (R) and Minority Leader Mitch McConnell attend a joint session of Congress. Photo: Olivier Douliery/AFP via Getty Images

Senate Minority Leader Mitch McConnell has abandoned his demand that Democrats state, in writing, that they would not abandon the legislative filibuster.

Between the lines: McConnell was never going to agree to a 50-50 power sharing deal without putting up a fight over keeping the 60-vote threshold. But the minority leader ultimately caved after it became clear that delaying the organizing resolution was no longer feasible.