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Supreme Court Justices Appeared Dazzled by Legal Celebrity at Oral Arguments in Robocall Case Against Facebook


Supreme Court justices, they’re just like the rest of us: annoyed by robocalls and occasionally star-struck when talking to those we admire.

The justices heard oral arguments Tuesday in Facebook, Inc. v. Duguid, a case about interpretation of the Telephone Consumer Protection Act of 1991 (TCPA); the statute outlaws certain robocalls and robotexts sent to cell phones. In a class action lawsuit filed against Facebook, plaintiff Noah Duguid argued that automated calls he received from Facebook (alerting him to a possible unauthorized login) violated the TCPA. Duguid isn’t a Facebook user, and received the security warnings messages in error.

Facebook argues that while the calls to Duguid and others may have been automatically-triggered, they did not constitute the kind of randomly-generated robocalls contemplated by Congress in passing the TPCA. Extending liability to the kind of calling involved in the case, argues the social media giant, would mean exposing every cell phone owner to liability for automatically dialing someone on their contact list.

The case raises questions of misuse in the context of current technology—what Chief Justice John Roberts referred to in oral arguments as “modern ills.” The statute prohibited robocalls made using 1991 technology, but did not specifically prohibit the kind of usage more common today. Because the statute prohibited specific actions that are now obsolete, it is unclear whether the kind of robocalls at issue in Duguid’s case are actually prohibited by the statute.

Duguid’s legal team, knowing that SCOTUS will face difficult questions of statutory interpretation in the case, offered up some legal celebrity firepower. Arguing on their behalf was renowned scholar Bryan Garner.

Garner, the editor of Black’s Law Dictionary and author of numerous well-known treatises on legal writing, is the kind of legal star whose rookie card would be worth thousands if jurists did that sort of thing. While well-known within legal circles, Garner is not experienced as a Supreme Court litigator; Tuesday’s arguments constituted Garner’s SCOTUS debut.

As a result of Garner’s participation, Tuesday oral arguments amounted to 90 minutes of mind-numbing debate over grammar and syntax rules. The event was a feat of legal geekery heretofore unseen—and some of the justices were happy to bask in Garner’s academic glow.

In his authoritative baritone, which came through even in telephonic oral arguments, Garner walked the justices through his arguments on what statutory wording really meant and how it should be applied to Facebook’s wrongdoing. As Garner nimbly led the justices through a discussion of adverbial modifiers, “viperine” interpretation of statutes, and conjunctive versus disjunctive distinctions, the justices appeared content to assume the position as students in Garner’s classroom.

Garner argued that the TCPA’s language should be subject to the same interpretive rules as we’d apply to cookbook recipes. If the language reads, “using a spatula, lift the omelette and tilt the pan,” explained Garner, no one would believe that that spatula should be used to do the tilting. Rather, the spatula phrase is meant to apply only to the omelette.

The justices seemed rapt as they engaged in discussions that recounted some of the many technological advances since the 1990s. Justices Clarence Thomas and Samuel Alito engaged in professorial discussions with Garner that could just as easily have occurred in a professor’s lounge as the Supreme Court chamber.

Even the often persnickety Justice Stephen Breyer began a question to Garner with: “In your expert opinion […].” While Supreme Court justices are usually respectful of attorneys, this kind of deference went beyond the typical.

The vibe was clear. Garner literally wrote the book on legal usage, even co-authoring one with none other than the late Justice Antonin Scalia—and the justices were impressed.

Garner’s spell over the justices was broken by Justice Sonia Sotomayor, who asked the professor whether “the logical consequence” of his interpretative position wouldn’t be that “every cell phone owner would be subject to the harsh criminal and civil penalties of the TCPA,” for doing things like sending email blasts to friends. “Could you give me a reason, other than that is hasn’t happened yet,” asked Sotomayor, “for why Congress would have intended that?”

Garner responded with an odd example, calling Facebook’s defense “scary,” and arguing that his position amounted to the same thing as allowing people to keep weapons in their homes. “All of us have hundreds of deadly weapons in our homes,” explained Garner. “Law-abiding Americans just don’t use ropes and kitchen knives that way.”

It was a weird moment. Garner might have thought his analogy a good one, but it clearly didn’t work.

After an awkward silence, an audibly befuddled Justice Sotomayor snapped, “Umm, I think you’re going to have to answer me more clearly than that.”

Shortly thereafter, Justice Elena Kagan went full grammarian on Professor Garner. Kagan pressed Garner to “at least acknowledge” that the reading for which he argues “is in fact ungrammatical.” Kagan, proving that she could go toe-toe-toe with any seasoned linguist, continued to explain why: “You have two verbs with a shared direct object and then a modifier following all of that.”

When Justice Amy Coney Barrett’s turn came around, she asked one of her now-usual lengthy questions, about the extent to which “human intervention” is necessary to trigger the TCPA’s statutory prohibitions. Barrett interrupted Garner multiple times, attempting to focus him on her question before abandoning it altogether in favor of raising questions the justice had about Garner’s books.

Justice Barrett asked Garner his thoughts on “synesis”—a linguistic concept by which strict grammatical rules are abandoned in favor of what makes sense in common usage.

“You don’t talk about it with Justice Scalia in ‘Reading Law’,” noted former Scalia clerk Barrett, referring to the 2012 book Garner co-authored with the late justice, “but you do talk about it in ‘Modern Usage,” referring to the book many lawyers consider the quintessential guide to legal language.

The case is the second time in recent months that SCOTUS has been asked to weigh in on the legality of robocalls. Last July, the Court severed a problematic part of the TCPA as it applied to government debt-collection in Barr v. American Association of Political Consultants,Inc.

Sergei Lemberg, lead lawyer for Noah Duguid, said in a statement to Law&Crime after Tuesday’s oral arguments that accepting Facebook’s argument would lead exposes Americans to billions of annoyances.

“Accepting Facebook’s reading would gut the TCPA and expose all of us to billions of unwanted robocalls and text messages sent with or without consent. We trust the Supreme Court saw that and will rule our way,” Lemberg said.

Facebook’s legal team did not immediately respond to Law&Crime’s request for comment.

[image via Samuel Corum/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos