we'll hear argument next in case nineteen thousand six hundred and thirty one william barr attorney general versus the american association of political consultants before we get started i would like to remind everyone to turn their cell phones off mr constitutionality of her vision as a content neutral restriction on the use of calling technologies that consumers found particularly intrusive and annoying congress as an act of the government that exception in two thousand and fifteen did not introduce any constitutional infirmity into the statutory scheme that exception is limited to a narrow category of calls that intrude less of the early on consumer privacy and does the typical automated call and that serve an important countervailing interest in protecting the federal theft there's been a good deal of back and forth in the briefs about what the respondents challenge is properly viewed as one to the exception of or to the general automated call respect and i think in circumstances like this there's not a right way in a wrong way not a writer and wrong calendar to bring there simply to conceptually distinct analytical analytical ways of challenging a law that includes a basic restriction subject to exceptions here we think that both challenges could have been brought but the road would fail but i'd like to focus st on the challenge that respondent is asserting in it it's brief these are the this is the challenge the respondents are asking the court to focus on and that is the challenge to the underlying automated call restriction and respondents basic theory is that if the government debt exception taken in combination with other aspects of the statutory scheme prevents the automated call restriction from performing its intended consumer protection unction renders it insufficiently efficacious to be a failed under the st amendment and we think that's wrong if you look at the statute the only other statutory exceptions to the automated call are those who are emergency calls and coles made with the prior express consent of the recipient and respondents have not contended that either of those is breach of the st amendment problem or passed out on the efficacy of the underlying restriction if you who are here one of your basic points to avoid strict scrutiny under the st amendment is that you're not really looking at the content of the communication in this case but rather it's more properly viewed as part of an economic relationship i don't see how they get you out of the content category you still have to look carefully at what's being said before you can decide whether the phone call is covered by the provision or not i think that's the clear holding of our decision in the read case think let me address read st and foremost at the outset of the court's analysis in read after the statement of the case the court described content based laws as well as those that target speech based on  communicative content and if we're focusing now on the automated call restriction on the provision of the statute that respondents say is the focus of their constitutional challenge it's impossible to stay the bat restriction targets responding to calls based on their communicative contacts the situation was very different and read and read the town had twenty three different categories of signs in sign code of a multitude of different  different categories one of them was temporary directional signs and that was the category of signs that the plaintiffs in the case wanted to put on and you could tell exclusively from the content of the sign what which category a bill into and  restrictions applied and that shirt them stamps it was natural for the plaintiff to argue in the court to hold but they had been targeted based on the community you know kind of content of their signs here respondents haven't been the severance question you say that if this exception for government data is found to be problematic you should just sever that and keep the rest of the statute but when we sever provisions it's because they are illegal  here there's nothing illegal about the government debt exception it's just when combined with the rest of the statute makes the whole statute vulnerable i wonder why in that situation the whole statute should fall law in two thousand and fifteen and the tax god got that what's your nd point the nd point is that the ultimate question of severability is one of congressional intent what result would congress have preferred and for purposes of determining what congress would likely have preferred it seems really like the tail wagging the dog to say that we will treat congress desire to free collectors of government bad debts from these restrictions rather to you suggest that we sever the exception but here it doesn't seem this remedy that insane give anything to respondent it doesn't add any more speech for the for the respondent and it seems to be taking speech actually away from someone who's not in this case i mean that that may be true but the court's task in determining the appropriate remedy is to kind of follow and of the appropriate remedy and if a court holds that yes you are right you've established the existence of a violation of the statute read properly simply doesn't authorize the remedy you see that that's one of the chances that the pla individual has in the privacy of the cell phone but it would seem to me that that privacy interest is actually not nearly as great as you would as a person but having and the landline  phone at home or even someone knocking on their front door well i think it is at the time that the statute was enacted cell phones were obviously a lot less prevalent and may have been used on on rare occasions and most people didn't own them i think now cell phones are as we've explained in the reply for you are ubiquitous they are an integral part of daily life or most individuals and so really the privacy interest is is greater than in the residential land like you have to a phone rings at your home and you happen to be they are it may be an intrusion but most people are virtually all people when they are at home will help have their cell phones with them so unwanted calls to phones is not just potentially to disturb residential privacy it's potentially to disturb them when they're at work when they're on social occasions when for whatever reason they might want to be open to calls from friends or calls from family is true that often a court in determining whether the government debt exception applied would look in part or to the content of the call but you wouldn't be looking exclusively to the content of the call for instance determination whether the particular debt if it were sought to be collected was in fact owed to or guaranteed by the federal government would have nothing to do with the calls contact it would depend on the financial relationship between the debtor and the federal government and it is the legal culture that congress would enact statutes that it regulate communications made in particular to feel to be economic activity and so you have laws that regulate what can be said or what disclosures asked of me made in connection with the sale of security and they're subject to st amendment challenge plaintiffs can argue that particular restrictions go too far but nobody thinks of laws like that as being especially  they are limited to the field of securities even though to determine whether a particular communication was covered a court would need to look in part at the content of the communication chain to see seve change well a couple of responses to that but the st is as as i was indicating earlier the whitecaps did argue and they were entitled to argue that the appropriate remedy if there was a constitutional violation was to strike down the whole restriction but they didn't persuade the court of appeals on that question and if the application of ordinary severance principles would confirm that result in the court's duty is to follow those principles even though it leaves this pla question which you need not answer if you don't want to but my question is what is content discrimination all human life is carry known through speech all government regulation is carried on through his speech every single statute book is filled with all kinds of content discrimination yes he he and every agency deals with nothing but what do their rules applied to were the exception to test and so i to remind the court of certain guidepost that it set up one is if you can tell exclusively from the content of a message whether a particular law applies and that's very likely or almost certain to be content based the  nd is as i was referring to earlier the court in read referred to content laws as those that target space speak based on its communicative content and here even if you thought that a government debt exception was content based it wouldn't follow that the automated call restriction is content based the automated call restriction doesn't target speech because of its content it treats the vast majority of speech the same and it's simply exempt from regulation of a very small category of speech and then the rd thing i would say is whatever the right answer is it can't be that whenever speech the mere fact that a particular law is limited to speech that is used in a particular economic  question what is your best president for the application of a severability alice in a case like this where arguably a  regulation of each is constitutional online because it contains content based or a viewpoint based exception i don't think neither side has a were equal protection cases but they said in deciding whether an exception should be severed or the underlying rule should be struck down we look at things like the temporal sequence in which the laws were enacted whether the exception enacted later in the day the degree of congress those commitments the basic rules and i think those are good analogies here where the grob and none of the st amendment claim that this person's speech is being treated differently from another person speech what is your response to this counter argument and an equal protection case complaint party is objecting to is on equal treatment so whether the remedy levels of the complaining party guess what it wants namely equal treatment whereas in a free speech case what the complaining party is objecting to is a restriction on it's speech and if we apply a severability analysis in that situation the complaining party does not get what he wants which is the ability to speak without restriction i think with respect to that kind of  be able to invoke on behalf of his father the constitutional right to equal treatment for unwed fathers and unwed mothers and yes the grob i'm one of those who claim it is i have a legal entitlement to equal i don't see in the record any evidence by you of how small this exception is the other side says that most of the complaints to the f c c are because of  debt collection but there are no statistics about how big or small debt collection is with respect to robo rulebook robo calls generally or with respect to consumer collection and even if you could show me that they were small part of the intrusions on people they certainly are a big emotional complaint because they generate the most by citizens but putting that aside you haven't shown me why government that calls are any different than commercial calls private commercial calls for get into both situations the debtor would expect a call about the stale that's an interest that the government's claim but  so what both that there's so there is a discrimination aspect to this case that does raise the equal protection grounds but putting all of that aside given that the burden is on you under meeting this fashion let me say two or three things about this st i think it would be impossible to make an unfair ical shilling about kind of the smallness of the exemption relative to the whole because what you would want to compare the government debt calls to is not two other calls that are actually being made in the world because a lot of the calls that would otherwise be made are not being made likely because they're barred by the tease the what you would want to be asking is how small is this comparison in com and collectors of other debts that the distinction that we pointed to is that the collection of government backed s implicates the distinct federal interest in protecting the federal office and it's not unusual for congress to prefer government has greater capacity to garnish wages that there's something problematic about that that the last thing we would say is like there's a private this could the titian the f c c or an exception they could say there's no good reason to treat us differently and therefore you the f c c should exercise your statutory authority to create an exception for all debt collection calls as for which the recipient does not charge and then the f c c would either grant or deny that if it was denied there could be judicial when you started when he said that there was no right way to think about how to analyze this question that we could either apply constitutional analysis to the automated call of restriction or we could apply it to the exemption for government de wondering whether you could say a little bit more about that because we had been some way and on the one hand the restriction is the only thing the automated call restriction is the only thing for hitting speech and on the other hand the exemption is the only things that create the constitutional issue in this case so which end of the statute should we look at let me but i've accomplished my answer by pointing to a hypothetical that just noted in the respondents pretty that we think is a good illustration of what it would be appropriate to focus on an exception to page twenty two respondents hypothesize a statute that has a categorical ban on all automated calls except for automated calls to a residential land line that indorse the reelection of donald trump and that are approved by the common campaign now we think an exception like that for calls made to endorse a single political candidate would surely violate the st the member would be not only content based but viewpoint  and there be no good justification for it in terms of the basic rationale for the restriction and even if a court concluded that this was a very small percentage of calls the exception didn't cast doubt on the credibility some arguments that the exemption is content based so why not treat it the same way i mean i think that's a very it's a very most you would treat the exemption in the same way that you would based on the same criteria and if there were certain restrictions placed on on the collection of government that data and only on the collection of government baghdad you wouldn't apply strict scrutiny to such a law for the same reasons i've discussed with respect to the securities laws hypothetical laws that could restrict communications in a particular area of commerce now respondents have understandably focused their attention on the automated call restriction in in part because of the severability question and if they could persuade the court that the exception of was the invalid provision and it was struck down they wouldn't really get what they want but they have to establish distinct prerequisites to show that they have a valid constitutional challenge to the automated call restriction one might be given the exception taken in combination with other features of the statute just made it seem as though congress wasn't serious about protecting privacy  remedy i guess i wanted to explore that just a little bit further as i understand it you've taken the position that there is no right way to do severance here but should we should we take cognizance of the fact that striking down the government that provision was not relief that the plaintiffs sought in this case and we normally take some cognizance of the adversarial process and the plaintiff's request for  challenge an exception for government debt collection activities so they didn't seek the relief and they don't have standing for this really should should those things tell us anything  appeals could have done it that way that is the principle argument that the respondents have made all along is that the government that except when combined with other speeches of the statutory and regulatory scheme really call into question congress's commitment to the protection of privacy or prevent a statute from achieving that objective and the court of appeals clearly didn't think that that was right and the court of appeals couldn't could just have said that's the only claim you made i reject and whether or not you could have pursued a valid challenge to the exception itself you haven't sought to pursue one and therefore i'm not going to consider it i think are given that the court of appeals ruled as it did we have tried t that and if the court holds that yes they're right but there is a st amendment violation but they are wrong about the remedy that would not be a problem of standing that would just be a problem on the merits of their claim or at least the merits of their claim with respect to the appropriate remedy let me come into yet another angle and that's the separation of powers the government's remedy proposed here is essentially that we should suppose reimagine the congress would preferred a regime in which more speech is suppressed than one in which less is suppressed on one on one authority do we have the right to make that kind of judgment as opposed to simply enforcing the st amendment finding a violation and liberating the speech since it's been wrongly suppressed let me say two or three different things about that st article either  validation of the exception of or invalidation of the restriction would produce a constitutional version of the p c so from the standpoint of compliance with the st amendment neither is to be preferred the nd thing is  that same question when you're doing severability analysis in the protection context where the result of stepparents may be that a particular individual or mark stop you if i might stop you there i'm sorry but i've the equal protection an y suppose it doesn't work for me because equal protection is is a guarantee of equality not of substance so you can level opera level down and satisfy equal protection but the st amendment is about  dialer restriction and then the nd public law that was an act in two thousand and fifteen and if you if there is a constitutional infirmity if you ask which public law introduced that constitutional infirmity it would have to be the two thousand fifteen public law but you have to tell them thank you counsel justice kavanagh thank you mr chief justice good afternoon mr stewart i think the government at exception is almost certainly content based at least f together make is for me at least a case about severability and leveling up or leveling down and you were just on this with justice courses but it would help me if you could kind points are we think if there would be a tail was wagging the dog quality to striking down the whole respect and one that has been in place for nearly thirty years that has been popular with consumers that has protected a vast array of people simply to preserve dan is thoroughly constitutional how much should we take into account on the what would congress have intended analogy is like we see in the states an attorney general's brief about consumer or beliefs about the these calls for the common consumer point complaint about robo calls does that go at all in your analysis w i think certainly that this was not a notice legislation it's not legislation the biggest a technical problem i'm talking about the original t c p a now that is this legislation that was intended to address a problem that congress thought was  e that affected vast numbers of consumers and obviously the amicus briefs described complaints that are being made now about robo calls even with the teach c p a s restrictions in place and so  stewart thank you thank you mr chief justice the last thing i'd say is i'd refer back to the point that i was making at the beginning where given that respondent is asking the court to focus on the restriction and not the exception if it's appropriate to ask whether the restriction is content they just as the court in the reader understood that term and the court in read described content based laws as laws that target speech based on its communicative content responded speech was not targeted based on its content it was presented the same way as the vast majority of messages that people could use automated calls to transmit thank you your honor thank you counsel as mr chief justice in may it please the court my clients are political organizations that want to engage in political speech at the core of the st amendment the t c p a bars them from using some of the most effective tools for communication now available automated text messages and calls to cell phones at the same time the statutes exceptions government approved speakers use these tame technologies to deliver government approved me interests supposedly requiring a ban on all other calls this content based scheme arbitrarily favors commercial speech over a core political speech it violates the st amendment and should be struck down the call ban is extremely broad although the t c p eight primary purpose was to address telemarketing calls the cell phone ban sweeps further and outlaws political and other noncommercial calls even when citizens are open to receiving them the government says congress needed a restriction that broad in order to protect privacy the statutes history disproves that congress and the f c c exempted noncommercial calls from the residential call ban after concluding that they do not adversely affect the privacy rights protected by the t c p a there's no good privacy based reason for treating these exact same calls differently when made to cell phones the government debt exception confirms that congress did not view the privacy interest here as compelling that exception exposes sixty million dollars americans to unlimited calls to collect more than four dollars trillion dollars in debt those are the kinds of calls consumers hate the most if congress really thought privacy was paramount it would not  those calls because the speech ban is too broad and unjustified the restriction not the exception must be struck down that's what the court has always done in st amendment cases and rightly so that real courts cannot  fix st amendment violations by making more speech illegal this court should reject a remedial approach that eliminates incentives to challenge unconstitutional speech fans and gives my clients no relief even though they won their st amendment claim do everything it wants you object to the fact that some speech is allowed but the allowance doesn't reach more broadly and what we've said williams really again is it so long as congress is moving in with cordwood guard is the right direction they don't have to do everything at the same time so the fact that you say we should allow more speech here here and here again it doesn't mean that it has to be done at the same time as the st step was taken as applies here right here and i think with the williams who usually inquiry is really getting at is whether the exception undermines the credibility of the government's interest that it's been asserting and i think in this case the two thousand and fifteen exception really does undermine that because it's not getting at like it's not trying to exempt the least intrusive of privacy speech available it's it's actually exempting the kind of speech that the f c c itself has acknowledged is the most intrusive kind of speech and those are the be the deck calls and sue williams who you lead i think is talking about a situation in which the government or congress is trying to or the legislature is trying to accommodate kind of this be the this speech that that is least problematic from the purpose from the standpoint of the interest that's being asserted but here congress has done the opposite it's exempted the speech that's most problematic and i think that that really makes this a different case from william seeley and brings us squarely within the concern the williams uli had which is that when congress enacts broad exceptions like the one here it might actually be a sign it might be evidence of the fact five years and then they added this you know pretty discreet exception that created the problem we have today it seems pretty obvious that the way they would solve it is get rid of this exception it's an extremely popular l nobody wants to get robo calls on their cell phone and the idea that congress would embrace that result simply to save this government debt collection they'd have to be very anxious to be more unpopular than they otherwise would be well twenty two points on that your honor st of all i think that the fundamental problem here is the invalidity of the restriction and i think that even before you get to any severability inquiry about intent we have to be very careful and specific about what is unconstitutional about the statute and i think what the two thousand and fifteen exemption shows as well is the much more favorable treatment to political or non commercial speech when it the focus here is on the exception of the restricted use all of the exception problem it doesn't solve your restriction problem particularly if you savva that and that the sort of the asymmetry that's coming out the problem is one thing that is the restriction but the constitutional problem is really the exception but and the so why don't you i'd like you to explain why what you just said why the restriction is the constitutional problem as opposed to the exception right and i can let me start with with with the two things that i think the exception does number one is it didn't introduces a content based distinction and it defines the scope of the restriction and therefore trigger strict scrutiny but number two and more importantly for purposes of our constitutional theory what the exception does is it  the underlying frailty the underlying insufficiency of the justification for the restriction and why does it do that it does it because you have congress saying because we want to get more money we are willing to trade off privacy or revenue and so congress is coming in and making a judgment that money is more important than privacy so i think your argument be the exception does not exist if the exception did not exist and we were looking at the law today i think well i think we argument would be weaker but i think we would still be able to show that the restriction would be unjustified and i think the main thing i mean but in the end molecules be the analysis the statute would no longer be content based so we'd be applying intermediate scrutiny but i think in the context of applying intermediate scrutiny we would look at the fact that calls to residential phones where you know calls to the home where privacy matters the most that noncommercial non telemarketing calls do not adversely affect the privacy rights that the t c p a protected they made that clear by by essentially allowing those calls at you know it all times of day to  it if you have that indicator of congressional intent that they're not really worried about political calls and noncommercial calls and they're not worried about that as an intrusion of privacy then there's no rational reason to treat cell phones differently in congress certainly didn't make that judgment of course in this case we have not only the differential treatment of residential calls but we also have the evidence provided by the two thousand and fifteen exception which shows that they're willing to trade off privacy for money even though everyone would agree that money machines your honor with respect i do think it's fair to say that this is a restriction on a certain manner of making calls but the types of calls that are either made legal or illegal you know the dividing line between what's allowed in which not allowed turns on the content of the calls i think that if if you were facing a statute that said you know for example you are not allowed to advocate for libertarians using e mail or using phone calls or using handbills all of those would be manner restrictions but i think that we would all recognize that those are content based restrictions that would trigger strict scrutiny and would inevitably fail  i with respect i don't think that's the original justification for for this particular provision and i would point to two things st of all is the fact that the kind of out of the blue calls that my clients might want to make political calls those are calls that were perfectly allowed and were perfectly acceptable to the home when congress and the f c c acted in the early ninety's and at that time of course phones were you know over ninety percent of the phones in america were home phones that's where the privacy interests were at their apex and nonetheless congress and the f c c recognized that the kinds of calls my clients want to make don't tread on privacy interests anough to to to to warrant that kind of of restriction and i think what that just shows either a breath of an exception or exceptions for the matter of station of congressional have so many give you an example or has a full example that tries to reduce both of those things perhaps their lowest limit suppose there was a total ban on automated calls to cell phones or all phones but there was one tiny exception for let's say calls between noon and one pm on the th of july that contain this simple message happy birthday america and let's say that the statute allowing this contains a provision the whole statute would have to fall you know i let me try to address that in each of the two pieces because i think it's a it's a nuance question and deserves a nuanced answer st of all with respect to the narrowness of that particular ban i think that the fact that that particular restriction or exception is so narrow i think that probably you know looking at the totality of the circumstances we would look at that and we would think the existence of this one tiny exception in the fact that this really isn't go invade privacy that much i think that would probably be a reason to conclude that the restriction is not unconstitutional and if that's true then of course the severability analysis wouldn't be necessary if you take your of the other part of your hypothetical though if as i understand it if the statute had a provision in it that essentially said if the restriction fails you should nonetheless sever the exception and reinstate the restriction i don't think that that would be appropriate because i think the reason that the restriction would fail in that circumstance is that it's insufficiently justified and getting rid of that exception doesn't solve that problem the exception again assuming that the exception was big enough to actually create a problem  constitutional deficiency with the statute the exception is evidence of why the restriction is unjustified and so getting rid of rid of that doesn't solve the problem with the with the restriction that does seem to for a pretty clear if the problem with the statute is the restriction then then the restriction has to fall now i think there's another way to look at the case and you know i think my my friend on the other side is sort of trying to frame it this way if you thought that the only problem with the statute was not the justification for the restriction but rather the fact that there's differential treatment we think that you still as a st amendment matter for a number of the reasons already mentioned that you would still need this to get rid of the restriction but even if you didn't agree with us on that i think there's fallback position would be the position the rd circuit took in the rapa case which is that you need very specific evidence of congressional intent and i guess in that case in your hypothetical if your hypothetical expressly addressed this situation and maybe in that case the exception would be severed but again that that is not the case here because here the underlying restriction is what's unconstitutional thank you counsel a justice sotomayor mr martinez are you taking the position some types of speech that should not be covered well i think your honor in this case obviously we're dealing with the statute at hand i think that there are some restrictions on robo calls that i think that probably would satisfy the the appropriate level of scrutiny interesting to take one example the way that the the ban on calls works in to home phones right now it's essentially a ban on commercial telemarketing calls robo calls to the home and that's the kind of that bet is the heart of what the t c p was getting at and that's what congress and the f c c said you know this is really the core privacy that we're trying to protect i think i bet for your team at that time and i agree with you and i i can think of others the restriction that could survive strict scrutiny under your claim why shouldn't we limit any remedy striking down this provision simply to permit the types of calls that your clients make well why don't we really why should we be striking down the entire statute that you would have to prove and i don't know that the court has done this below that restricting political speech is not it is not terribly tailored and i don't know that that's been done in this case but if the issue is the remedy shouldn't we let the circuit below decide that question one hundred and two points on that st of all we brought this as a facial challenge we have courts would welcome the kind of relief that you have hot aside so that we don't we do think that the appropriate relief here really is to strike down the restriction in its entirety and one of the reasons for that is the point that you raised with mr stewart earlier which is the entire absence of any evidence or justification for this particular ban for or any of that all of it or or pieces of it that the government has completely failed to put forward i mean this statute is subject to strict scrutiny in this court has said over and over again that the government is the one that bears the burden of satisfying strict scrutiny address strict scrutiny and i think that single sentence with respect to the exception restriction a single sentence in their opening brief a single sun substantive sentence in their reply brief and nothing else they're trying to turn strict scrutiny into a rubber stamp and i think the best thing to do in these circumstances is hold the government to its burden of proof invalidate the restriction and then congress can come back and act in legislate you know in a way that it's rational in light of the court's decision thank you counsel justice briar thank you i'm sorry the telephone started to ring and it cut me off the call and i don't think it was a robo call we got it straightened out ok my question is this  forget the political part of this assume out of it to know what worries me is if you call this strict calling for strict scrutiny i guess the government's justification which is that government debt is owed to us all as taxpayers private debt is not so treated specially well there are many situations food and drug agencies agricultural agencies governing selling the f t c the f c c where they will have regulations and the regulation to have a broad category and item x falls within it lamps may fall within categories that require you to put electricity regulation on how many amps does it use or whatever but then you discover a subcategory of the one you just put in and you say leave out the subcategory for some reason now the court starts criticizing that for strict scrutiny well very few will survive but the normal way of looking at it is is that a reasonable thing justice brandeis is rd category very well why isn't this case falling to strict scrutiny once i get the politics out but not justice brandeis regulation you're on a couple points and i think this case falls into strict scrutiny because it satisfies the test for what constitutes a content based  restriction that was set forth in read and i know your honor you realize what i'm doing is i'm descended and i'm wondering whether to stick to that approach or not so read will not convince me it's a good majority but i didn't think good enough  other laws that are economic regulations sort of being impacted by this at all because that you know i don't but i want the answer to exactly why right in those cases those kinds of restrictions that that sort of get tangled up with speech in the context of those kind of regulations those would be most commercial regulations of speech would which wouldn't be subject to strict scrutiny regardless of whether or not they're they're considered content based so for example the government list a number of statutes in its brief that it says you know this guy's go fall in all those statutes are going to be unconstitutional if we win that's just simply not true most of those statutes are would be regulations of commercial speech at most and if so they would try to trigger intermediate scrutiny under this court's settle any calls between the holder of government debt and the debtor with strict scrutiny apply your honor i think that in in that circumstance would be the regulation would not turn on the content of the calls and so i don't think strict scrutiny would apply for that reason in other words it would turn on the relationship and so i guess the question is what's the difference i mean that's what congress was trying to get at and maybe they didn't know all of our can st amendment rules but that regulation basically covers a particular kind of economic activity the collection of government de and this regulation covers the same kind of economic activity the collection of government debt there are two ways of getting at the same thing both are directed at the economic activity of the people involved why should there be any difference with respect and issue being made by collectors or government fact that it contemplates that the subject matter of the call might range beyond the collection of government backed that maybe they're going to be marketing some other product maybe they're going to be saying hey call your congressman and raise any real concerns about government censorship about the suppression of i d s about a distorted marketplace of ideas well why is this an appropriate time to put strict scrutiny into place given that what the government what the but the legislation is trying to get at is an economic  think that the robust test for content based speech restrictions this court adopted indeed is important because it protects liberty and makes it harder for congress to enact broad speech bans that affect everyone i want the same time assuming it can then just carve out special exemptions for favored groups and i think the way to police that problem is by making sure that congress has to be very careful before the next the broadband and make it clear to them that they can't just do that and then for example as in this case delegate authority to a government agency to hand out specialized exceptions for whatever well heeled party turns up and claims an exemption and so i think that that is one of this justice  counsel i'd like to just turn back to that the intuitive appeal of the government's severability argument if as i think you you've conceded that the statute before the government that exception would not have been content based and might have been permissible under the st amendment congress then comes in as the government that exception and that changes the equation intuitive argument based on that sequence of events is well just get rid of the government that exception and we go back to the status quo ante where everything was fine why why should we reject that intuition i think there's there's a philosophical reason and historical reason the philosophical reason is essentially that in the st amendment context courts should not be making more speech illegal because if courts take that certain type of speech that congress expressly chose to to allow and then make the decision in two to prohibit that speech they're essentially stepping into the legislature shoes and making very sensitive policy tradeoffs that that indisputably cut against st amendment interests and they shouldn't be the ones to do that philosophically as well you need to make sure that people have incentives to challenge unconstitutional laws i think as a historical matter though it's i think it's important to recognize that the original justification for the ban on cell phone calls here was essentially that those kind of calls to cellphones would inflict charges on called parties and that's the reason that the ban was in place you know originally and that's that's why it may have been justified earlier but in today's world those call plans essentially don't exist or  overwhelmingly people are not charged when they receive calls to their cell phones and so this is the historical facts are different now and because of the fact that everyone has cell phones the government has an especially strong interest now from a revenue perspective of making those that call if you take all that and wrap it up together i don't think there's a good historical basis for imperial basis for concluding that in fact we know with certainty or the kind of certainty we should have in the st amendment context that congress would have wanted to to to reenact this statute if it wasn't allowed to make the call to collect government back that let me see if i got at least that nd point my hands around it the argument is that maybe the st congress that enacted the original  statute thought that all robo calls should be prohibited with some exceptions if you're not you have no complaint with nd congress acting in a different time had a different judgment about which calls should be permitted and that included this government debt exception we don't know whether the nd congress enacting that the revised statute would prefer a situation in which all calls are prohibited or all calls primary position is that the nature of the st amendment and the nature of the constitutional flaw in the statute which is the law with the restriction we think that that means that essentially under under everyone's understanding of the severability principle the restriction must be struck  then either way on severability as i understand it when the st amendment problem is created by an exception to a ban on speech rather than the st amendment problem being created by the underlying b and without the exception so i don't think we have any precedent either way and the question as you pointed out mr stewart's pointed out is level up or level down as the remedy the key st question i asked mr stewart about this i want to make sure i have you on this is the underlying restriction here the underlying restriction on cell phone robo calls constitutional without the government exceptions when you to focus exactly on that question yes we think that that given all the evidence we know now about what congress interests are and how strongly they believe or don't believe in the privacy interest we believe that the underlying restriction unconstitutional we would say yes based primarily on the differential treatment of the residential call dance but i just want to say one thing on that just as cabinet if you want me to hypothesize that at the two thousand and fifteen law had never been passed i get the th if you think about that law as evidence as evidence of what congress thought about privacy the fact that it wasn't passed doesn't mean that deep down congress believed in privacy more than we later than was later revealed and so i think it's important to recognize that in our argument the role of the two thousand and fifteen exception is not merely to introduce the text to a content based distinction but it's also to reveal the underlying lack of justification which is always there but again common as well i guess on that point i would pick up on what the chief justice said and the state's amicus brief and if you just take a peek just a peek at the real world here this is one of the more popular laws on the books because people don't like cell phone robo calls that seems just common sense to want to argue against that common sense i think aspects of the law are popular and i think you know the head of the f c c has called this law the poster child for lawsuit abuse and the reason for that is and this is it isn't directly implicated in this case there are a whole bunch of other problems with the law as well and so i think this law has its supporters and its detractors but i don't think you should worry about congress ability to protect people even if we win this case congress is going to have plenty of options that are fully constitutional in order to protect people from from unwanted calls it can focus on the telemarketing calls it can focus it can expand the remedies available under the do not call list which century allow consumers to leave it and even if you have to out sorry even if you lose this case congress can of course scaled back what you view as overbroad restrictions but if you lose this case congress will still have in place a restriction that's been on the books for thirty years and that has been perceived as constitutional and that is very popular well i i guess what i would say is that i think the right way to think about this is to apply the doc trying all tools that you always apply in st amendment cases even in cases where the speech involved is not popular i mean the  st amendment is there not just to protect speech that people like but to protect speech that might find offensive or annoying and economical mr martinez would you like to take a minute to wrap up thank you your honor the core purpose of the  amendment is to protect the free exchange of political speech even when people might find that speech to be a nuisance that's what this court recognized in the martin case when it said that st amendment rights protect people from from making intrusive door to door  solicitation that's protected activity because at issue here are protected activity as well we ask you to do what you always do in st amendment cases strike down the unconstitutional restriction on speech thank you your honor thank you so mr stewart you have a bottle thank you mr chief justice i took mr martinez to acknowledge that if this were a restriction on speech undertaken to collect a government backed that it would be subject to most intermediate to more structuring review because its effect is to take particular speech out from under regulation rather than to regulate it and that's contrary to the usual understanding that the st amendment exist to foster speech it's contrary to the court's preference and read to laws that target speech because of its communicative content why would report the court review more skeptically to a law that looked at the same basis as a rationale for exempting speech rather than to regulate the nd thing is mr martinez said many times that congress and the f c c add exempted noncommercial calls from the automated call restriction and i think that really overlooks the respective responsibilities of congress and the f c c congress has broadly regulated at least call it using a prerecorded voice or an artificial voice to residential land lines just that it has it has calls to sell them both of the underlying bans encompass non commercial calls congress has best at the f c c with broad though not identical authority to examine particular categories of calls from the residential in the cell phone respectively and said yes they have framed it not in terms of the content of the call but in terms of all the calls from the holder of the government to the dead or that that would be subject to more relaxed scrutiny and that would simply distinguished on that basis would simply encourage congress to enact laws with more of a broad brush it would discourage congress from trying to fine tune the laws and that discourage that would only be