Facebook Inc. v. Duguid
Oral argument transcript · No. 19-511 · October Term 2020 · argued December 8, 2020 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Paul D. Clement, Washington, D.C., for the petitioner
- Jonathan Y. Ellis, Assistant to the Solicitor General, amicus curiae supporting the petitioner
- Bryan A. Garner, Dallas, Texas, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument first this morning in Case 19-511, Facebook versus Duguid. Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER
Paul D. Clement: Mr. Chief Justice, and may it please the Court: The TCPA defines an Automatic Telephone Dialing System as equipment with the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such number. The statute prohibits calls using an ATDS to emergency and cellular lines but not to residential lines. Under well-established rules of grammar and statutory construction, the entire phrase "telephone numbers to be called, using a random or sequential number generator" applies to both disjunctive verbs, "store" or "produce." The contrary reading covers any device that can store and dial numbers even without the use of a 1 random or sequential number generator. That reading creates a statute of impossible breadth and a fundamental mismatch between the ATDS definition and the targeted ATDS prohibitions. Under ordinary rules of grammar, a restrictive modifier that follows two disjunctive verbs modifies both, not just the second one. Three features of the statutory text here reinforce that conclusion. First, the punctuation. The modified phrase here is set off by a comma, which indicates that the phrase modifies both verbs. Second, the shared direct object. The direct object that follows "produce," "telephone numbers to be called," concededly applies equally to "store" as well as "produce." Having some but not all of the text that follows "produce" refer back to "store" requires a significant judicial rewrite. Third, the scope of the ATDS prohibitions. They do not prevent ATDS calls to the residential landlines used by most Americans in 1991. Instead, they target only the specialized lines -- emergency, cellular, and multiple business lines -- that were distinctly 1 vulnerable to random and sequential dialing. That limited scope makes sense as a targeted response to the problems of random or sequential dialing. But, if Congress were really aiming at annoying calls from devices that could store and dial numbers, its failure to protect the home front would be inexplicable.
Chief Justice Roberts: Mr. Clement, your friend on the other side says that we ought to look to the sense of the passage and not to rules of -- of syntax. I know you have a dispute about what the sense of the passage is. But, as a general matter, he's right, isn't he? I mean, the drafters here weren't following the rule of reddendo singula singulis or diagramming these sentences, so why -- why should we focus on -- on syntax to the extent that I think both parties do?
Paul D. Clement: Well, Your Honor, I think because the other way lies madness, with all due respect. I mean, I think, if one deviates from the rules of sort of ordinary grammar and statutory construction, then there becomes so much play in the joints that you essentially empower the judiciary to rewrite 1 statutes. And with all respect to my friends on the other side, I think that's really what they invite you to do here. I think Congress targeted a very specific problem in this provision, a problem that was prevalent in 1991. I think it was successful in eradicating that specific technology, and my friend would like to use the synesis or the sense of the statute to repurpose the statutory prohibition to address more modern ills.
Chief Justice Roberts: Well, it's clear that they didn't have in mind the modern ills, as -- as you say, and the modern ills, at least according to your friend, would lead to a disaster if his interpretation weren't -- weren't adopted. Is that something we should consider at all?
Paul D. Clement: I -- I don't think it's something you should really consider, and I think it gives too little credence to Congress's own ability to address these problems in an ongoing way. As recently as 2019, Congress passed another statute addressed to the problem of 1 accepted telemarketing calls. One of the things that that Act did is to try to create a process where the technology we use in our home phones and our cellular phones would itself block these kind of unwanted calls.
Chief Justice Roberts: Thank you. Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Mr. Clement, I know this isn't central to your case, but it's -- it's -- but I am interested in why a text message is considered a call under the TCPA.
Paul D. Clement: Well, Justice Thomas, I actually think that's an excellent question, and I think it is another way in which the courts have essentially updated the statute to keep up with the times. And it's not at all clear that a statute that was directed not just at calls but also, in particular, at artificial or prerecorded voice calls is really sensibly applied to texts at all. And if one were to hold that the 1 statute were limited to actual voice calls and not to texts, that would be an alternative route for ruling in our favor in this case. The one other thing I would -- I would point to, Justice Thomas, is there is an amicus brief by the Washington Legal Foundation that addresses this issue specifically, and what they point out is that in more recent statutes, when Congress is -- when Congress addresses calls and texts, they do so either conjunctively or disjunctively. But I think that gives real evidence to the fact that one doesn't naturally talk about a text as a call, but, rather, one talks about either calls I received on my phone or texts I received.
Justice Thomas: The -- the -- when you -- when we talk about a number generator under the TCPA, are we talking about a device as a number generator or a process? It would seem that perhaps it would -- makes more sense it would be a device, but what's your thought on that?
Paul D. Clement: Justice Thomas, I think the statute's most likely read as talking about a process that is part of overall equipment. So 1 I think they may have had in mind a computer program that would be part of the overall equipment that's used to store or produce a number using the random or sequential number generator and then to dial that number.
Justice Thomas: Thank you.
Chief Justice Roberts: Thank you, counsel. Justice Breyer.
Justice Breyer: Well, my only question from your answer to -- was in light of your answer to the Chief Justice. I think you say in your brief, and it seems right to me, that if we take your friend's -- your opponent's definition, then it would be unlawful for a person to use a cell phone, yes, that stores numbers, like an emergency hospital number, to make a call for -- to the emergency line of the hospital. Now that's -- that -- I think you say something like that. Is that right?
Paul D. Clement: That's right, Justice Breyer.
Justice Breyer: And are you really telling the Chief Justice that's irrelevant?
Paul D. Clement: No, I -- I didn't mean to tell the Chief Justice that that was irrelevant. I think that the -- the scope --
Justice Breyer: Wouldn't you say it's fairly important?
Paul D. Clement: -- of the statute --
Justice Breyer: Wouldn't you say it's fairly important? I mean, if it produces a very peculiar or weird result, it does have something to do with interpretation, doesn't it?
Paul D. Clement: Oh -- oh, absolutely. I -- what I -- all I was responding to is the idea that rather than looking at the results produced by the actual words in their syntax, whether we start sort of creeping into this concept of synesis, which, I mean, maybe, you know, it's sort of in vogue in certain grammarian circles, but -- but I really don't think that's something that's featured in this Court's cases. And I think the --
Justice Breyer: I'm making a --
Paul D. Clement: -- ordinary tool --
Justice Breyer: -- I'm making a general point that both consequences and 1 purposes and text are all relevant, and in this case, you have a pretty strong claim in my opinion -- and I'll ask your -- your colleague, your friend -- you have a pretty strong case on the consequences and purposes.
Paul D. Clement: Well, obviously, Justice Breyer, there's -- there's a range of views on this Court as to how much one looks beyond the text to sort of context and consequences. I think -- happily, here, I think text, context, and consequences all point in favor of our proposed construction of the text.
Justice Breyer: I -- I --
Chief Justice Roberts: Thank --
Justice Breyer: -- realize you think that. I -- I realize it. Thank you.
Chief Justice Roberts: Justice Alito. Justice Alito.
Justice Alito: Sorry. Mr. Clement, the statutory phrase that we have to interpret in this case has a structure that is fairly common. It lists two activities, "storing or producing telephone numbers," followed by a modifying phrase, "using a random or sequential number generator." 1 People make statements like that all the time, and, you know what, those who hear them or read them understand what they mean without looking at treatises on grammar syntax, usage, or interpretation. And the way they do that is to ask, what makes sense? I can give you lots of examples, but I have very little time for questioning, so they -- they ask about the sense of it before they get to all this arcane stuff. So the question that jumps out here is this: Does it make any sense to speak about storing a list of telephone numbers using a random or sequential number generator? And the best answer I can find in the briefs on your side is that there were systems that produced lists of numbers using such a generator and then stored them. But, unless you can explain how a generator was used in the very process of storing the numbers, I think you have a problem.
Paul D. Clement: So, Justice Alito, two quick things on that. One is I do think readers of language have an advantage over listeners, which is they can look to the punctuation, and I 1 do think the punctuation here is important. But, to get to the heart of your question, I don't think there's anything nonsensical or redundant about talking about using a random generator, number generator, to store numbers. I think it's not any different in principle with the phrase that a lot of people have used to describe the sense of the ATDS prohibition, which prohibits dialing of numbers using a random or sequential number generator. In both contexts, I think the senses are very sensible -- the sentences are very sensible. They just mean that you're using the number generator not to do the actual dialing or the actual storing but as part of the process of storing telephone numbers to be called or part of the process of dialing telephone numbers to be called. And I think, if you understand the terms in that way, they make perfect sense in -- in normal English. And I think what they really get at is the idea that Congress was trying to prohibit the use of a random or sequential number generator, either for immediate dialing, 1 which would be produced, or for later dialing, which would be captured even more aptly by the verb "to store."
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Mr. Clement, with your parade of horribles that, if read the way the other side wants, it would cover devices, too many devices, I'm wondering if the issue is less with Respondents' interpretation and more so with the TCPA being outdated. When the Act was passed nearly 30 years ago, smartphones didn't even exist. Even today, it still references pagers, the TCPA. But you are right to note that today almost all phones have the ability to store and dial telephone numbers. If what Congress wanted to do was stop a call that was automatic and that's what it accomplished, wouldn't it be its job, not ours, to update the TCPA to bring it in line with the times?
Paul D. Clement: So, Justice Sotomayor, I definitely think that it's Congress's job to update the statute, but I don't think the 1 problem with the other side's construction is something that only materializes with the modern smartphone. I think the basic problem also inhered in technology that was prevalent in 1991, like speed dialing or call forwarding, which involves the rudimentary capacities to store numbers and to dial them. And the FCC confronted that issue in the immediate wake of the statute's passage in a 1992 rulemaking, and it said, don't worry about speed dialing, don't worry about call forwarding, that's not covered because it doesn't use a random or sequential number generator. So I think there's a -- you know, for the entire history of the TCPA, there's been the potential for it to be read way too broadly, and I think, since the very beginning, the sensible way to avoid that outcome is to read "using a random or sequential number generator" to modify both "to store" and "to produce."
Justice Sotomayor: Thank you, counsel.
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. Clement, I'd like to give you a hypothetical along the lines that Justice Alito was talking about. So here is the sentence: It is illegal to stab or shoot another person using a firearm. And what I want to know is, would I be covered if I stabbed somebody with a knife?
Paul D. Clement: I -- I think you would, Justice Kagan. You would obviously be covered if you stabbed somebody using a bayonet, I suppose, but I -- I think that really gets to some of the -- the -- the sense that you provided in the Supreme Court's decision in the Advocate Health case, which there are certain combinations of words where the mind just sort of rebels at the combination of the two words. And I think, there, it's very clear that you really don't in the ordinary parlance, except for possibly with a bayonet, stab somebody using a firearm. But I don't think there's any comparable logical inconsistency or linguistic impossibility with using equipment to store telephone numbers to be called using a random or sequential number generator. And, indeed, if you look at some of 1 the state statutes that were passed before the TCPA, they all used a bunch of different formulations, but a number of them did address the combination of storage technology and random or sequential number generator. And I think that is a real problem, not a feigned problem or an odd combination, particularly if you think about sequential number generation, where you generate thousands of numbers, you have to store them someplace, and it's really the fact that you're using the equipment to store the numbers and then dial them seriatim that creates the distinct risks to emergency lines and cellular phones and pager lines and the rest.
Justice Kagan: And, quickly, Mr. Clement, could you comment on the surplusage problem that your reading creates?
Paul D. Clement: So I don't think it creates a -- a surplusage problem, Justice Kagan. And I do think the other side's reading creates a bigger surplusage problem. So, on our side, I don't think there's a surplusage problem because, if I talked about using a power generator to store or -- or 1 produce electricity, I don't think you would read that as having the "store to" being completely redundant because, by using "store or produce," I'd be making clear I don't really care whether you're using the electricity now or later. So I don't think it's purely redundant. On the other hand --
Justice Kagan: Thank you, Mr. Clement. Thank you.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, Mr. Clement. You -- you pressed what Judge Barrett in her opinion on -- for the Seventh Circuit called the first potential reading. But the problem that it generates, as everybody's recognized, so to speak, is that it's awkward to speak of -- of equipment storing anything using a random number generator. That's what Justice Alito and Justice Kagan have pointed out. One potential response to that might be that what -- what Judge Barrett called the fourth potential reading, which is to say that the phrase "using a random or sequential number generator" modifies the object rather than the 1 verbs. And it would be sensible to talk about storing telephone numbers to be called -- that are to be called using a random number generator. The problem there, of course, is the comma. I -- I -- I see all that. All right? My question for you is -- is you didn't raise the fourth argument as a potential. I'm not sure we need to rule it out. Would it -- would it make any difference to you and your clients and -- and in any sensible way make a difference in the real world whether we were adopting the first alternative or -- or saying that the fourth might be a possibility too?
Paul D. Clement: So, Justice Gorsuch, I -- I think we would prevail equally under the fourth alternative, and I don't -- I -- as I'm -- as I'm standing here today, I can't think of a practical difference between the two. Obviously, when we're formulating our argument, it's hard for us to ignore the comma, which is part of the reason we didn't press the fourth construction. The other reason we didn't press it, to -- to -- to be candid, is if you don't think 1 there's anything terribly anomalous about talking about calling using a random or sequential number generator, then I don't know why you think there's something so anomalous about storing numbers using a random or sequential number generator. I think, in both contexts, it's not the generator itself that does the calling or the storing, but in both cases, the number generator is used as part of the storage process or part of the calling process.
Justice Gorsuch: Very helpful. Thank you.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you, Chief Justice. Good morning, Mr. Clement. I want to touch on what you talked about what Congress was getting at in 1991 and just make sure I understand the structure of the statute. Your point about calls to the home, only artificial or prerecorded calls to the home were prohibited, why didn't Congress also prohibit live calls, live telemarketing calls, 1 to the home do you think?
Paul D. Clement: Well, I think it's pretty clear from both the legislative history and the legislative findings that were enacted in the statute itself that the reason they didn't go after live voice calls to the home was out of respect for the First Amendment.
Justice Kavanaugh: Okay. And then, when you get to the other category of calls we're talking about, to the specialized numbers, Congress again prohibits the artificial or prerecorded voice calls but then also prohibits calls which would, presumably, be live caller calls using an ATS -- an ATS -- ATDS. What was, in your view, Congress getting at with those calls? Am I right in thinking those are live caller calls that would necessarily be covered by the ATDS prohibition?
Paul D. Clement: Well, they could be. They could, I think, be live caller calls. There's actually some debate about that. And I think, if you look at the whole legislative history, there's a little bit of ambivalence about that. But let's say they call voice calls. 1 I think the reason that they targeted those specialized lines and, as to those specialized lines, prohibited the ATDS in addition to the artificial or prerecorded voice calls when they didn't do the same to the residential landlines is precisely because those were the lines that were particularly vulnerable to random or sequential number generation technology --
Justice Kavanaugh: Right. The artificial or pre- --
Paul D. Clement: -- and the harm that that would --
Justice Kavanaugh: -- the artificial or prerecorded calls to those lines would have been already prohibited, though, so the ATDS must be getting -- and I don't know which way this cuts; I'm just trying to understand it -- would have been -- using that, an ATDS, for a live caller call would have been the only thing separately covered?
Paul D. Clement: Yeah, I'm -- I'm -- I'm not positive that's the way the statute is structured, Your Honor, because I think the prohibition to the residential lines only covers artificial or prerecorded voice calls. And 1 then, as to the cellular and business lines and emergency lines, both are prohibited.
Chief Justice Roberts: Thank you, counsel.
Paul D. Clement: So they -- they --
Chief Justice Roberts: Justice --
Paul D. Clement: -- specifically singled --
Chief Justice Roberts: Justice --
Paul D. Clement: -- out the -- the -- the cellular and mobile lines --
Chief Justice Roberts: Justice Barrett.
Paul D. Clement: -- and the emergency lines, and they said, as to those, we don't want either artificial or prerecorded voice calls or an indication --
Chief Justice Roberts: Thank you, counsel.
Paul D. Clement: -- we don't want these ATDS calls.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: Mr. Clement, some of the lower courts that have adopted your 1 opponent's interpretation have been moved by the exception in (B), which says that liability doesn't attach if the call is made for emergency purposes or with the prior express consent of the called party. And, you know, they've pointed out that, under your interpretation, they say: Listen, the prior express consent would do no work for an ATDS. I'm looking at the emergency purposes exception to liability, and I'm wondering how either an ATDS or an automated or artificial prerecorded voice device would make a call for emergency purposes.
Paul D. Clement: So, Justice Barrett, I think you could imagine either one of them making a call if -- you know, if there were a medical emergency. If there were an individual at large in the community, you could imagine a police department using this kind of technology to provide a warning message, and it could be a prerecorded warning message, to everybody in the jurisdiction.
Justice Barrett: So you think it would have some utility -- I mean, I -- I guess what I'm getting at here is I'm wondering 1 whether, in an abundance of caution, you can imagine why Congress wouldn't want any call that was placed for emergency purposes or a call that was placed with express consent to give rise to liability. However, I mean, it -- it may not be that there's very wide applicability for either one of those exceptions, including the one for emergency services, which I think would deprive the objection of some of its force, that your interpretation renders the prior consent of not great utility.
Paul D. Clement: I think it's going to be a narrow band of calls, but I do think they're calls that conceivably could make -- be made with an ATDS, so I think the exception has some force. I do think, though, if you read the statute as a whole, it's pretty clear that the exceptions are mostly in there for the prerecorded or artificial voice calls, because there's no exception in (b)(1)(D), which is the one provision that applies only to ATDS calls.
Justice Barrett: Thank you, counsel.
Chief Justice Roberts: A minute to 1 wrap up, Mr. Clement.
Paul D. Clement: Thank you. There are two final defects with Respondents' view I'd like to emphasize. Under our reading, both disjunctive verbs are modified, and so both capture specialized conduct of comparable scope. Under Respondents' reading, by contrast, "to store" is unmodified and captures a wide swath of conduct, while "to produce using a random or sequential number generator" captures only a narrow band of specialized conduct. That is not how Congress generally writes statutes. It does not put an elephant hole next to a mouse hole, prohibiting both everything under the sun and a highly specialized practice. And that points to the second problem. If Congress really wanted to prohibit every annoying call made with a device that can store and dial numbers, it would not have left the home front unprotected. In 1991, there were only about 7 million cell phones. The default telephone for almost every constituent 1 represented in Congress was a residential landline. If the ATDS provisions were addressed to something broader than random or sequential dialing, Congress's decision to leave the residential landlines unprotected would be inexplicable.
Chief Justice Roberts: Thank you, counsel. Mr. Ellis. ORAL ARGUMENT OF JONATHAN Y. ELLIS FOR RESPONDENT UNITED STATES, SUPPORTING THE PETITIONER
Jonathan Y. Ellis: Mr. Chief Justice, and may it please the Court: In the government's view, this case can and should begin and end with the statutory text. Under ordinary rules of grammar and canons of construction, the phrase "using a random or sequential number generator" in Section 227(a)(1)(A) is best read to modify both "store" and "produce." Now Respondent asks this Court to discard those rules and rely instead on the anti-grammatical sense of the passage, but it 1 cannot show the sort of contextual plausibility of a grammatical reading that might warrant that approach. He also places significant weight on the purported consequences of the government's reading on the modern telemarketing industry. But that argument misconceives the limited role that the ATDS definition plays in the statutory scheme both today and, more importantly, from the perspective of the 1991 Congress. Regardless of how the Court resolves this case, the TCPA will continue to broadly prohibit robocalls to cell phones and residential lines. The fact that the 1991 ATDS definition describes a universe of devices that are no longer in widespread use provides no basis for this Court to adopt anything other than the most natural reading of the statutory text. I welcome the Court's questions.
Chief Justice Roberts: Mr. Ellis, you began by saying this case can begin and end with the statutory text. Are you saying it's a plain meaning case?
Jonathan Y. Ellis: We think, Your Honor, that 1 the -- the interpretation we've offered here is by far the most natural reading of the text. Just like a case in the other case where there's not an agency action at issue, we haven't gone so far as to weigh in on whether we -- we think that a contrary approach by the FCC would be permissible. But I -- I just -- I don't want to suggest that lacks -- that suggests any lack of confidence in our reading. We do think it's by far the more natural one.
Chief Justice Roberts: Well, I guess, if you're saying it begins and ends with the text, that doesn't leave much room for the FCC to adopt a different interpretation from the one you're advancing.
Jonathan Y. Ellis: I think that's right, Your Honor. I don't think there's much room for a contrary interpretation. Again, the -- this is a question on which the FCC has requested comment twice since the D.C. Circuit's decision in ACA International. It's a question that's open on its docket. You know, we were -- are -- are 1 reticent to foreclose that -- any contrary interpretation from the FCC without seeing what they had to say, but -- but I -- I agree with you completely that there's not a lot of room for a contrary interpretation here.
Chief Justice Roberts: Well, that was a question, not a statement. The -- what -- what do you take -- how do you react to the notion that this is going to have disastrous consequences given -- given technology that has developed since Congress passed this and -- and whether or not those consequences should enter into our consideration?
Jonathan Y. Ellis: Well, I think a couple things about that, Your Honor. I -- I -- I agree with my -- my friend from Facebook that that shouldn't be -- shouldn't drive the Court's analysis here. I think the question is what the statute meant in 1991. I -- I also, though, think that it sort of misconceives, as I suggested, the -- the narrow role that the ATDS definition plays in this statutory scheme. The ATDS definition only implicates the automated call restriction to -- to these sensitive lines, emergency lines, guest 1 and patient rooms at healthcare facilities, and cell phones.
Chief Justice Roberts: Thank you, Mr. Ellis. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Mr. Ellis, the -- Justice Sotomayor brought up the point of the ill fit between this statute from 1991 and current technology, which is advanced. In '91, cell phones, or quite a few of them, were the size of a loaf of bread, and they're not in widespread use. Lots of people had car phones instead -- installed in their cars. The -- we've had, in legislation, quite a change. The industry's changed. The technology is far beyond anything we could have conceived of in '91. At what point do we simply say -- and I understand the statutory construction and the -- the -- what we're attempting to do with this statute, but at what point do we say this statute is an ill fit for current technology?
Jonathan Y. Ellis: So I -- I think, in -- in one respect, that -- that may be true. I think 1 the -- the best reading of the ATDS definition, as you suggested, doesn't apply to a great deal of technology that's still in use today. I -- I think that's actually evidence of the TCPA's success and -- and not a reason to update the statute. I -- and on the flip side, as -- as you suggest, the Respondents' reading of the text does at least present a potential that -- that ordinary smartphones could be -- calls from ordinary smartphones could be made unlawful. I -- I think, happily, the best reading of the text doesn't lead to that result, and that's what we're urging for the -- the Court to adopt here.
Justice Thomas: But I think the point -- what I'm asking is sometimes we use -- I think it's a little odd when we use these -- we make great effort to interpret a statute that really wasn't intended for the universe in which we are operating now. And at what point do we just simply say that?
Jonathan Y. Ellis: I think you can say that in an opinion. I think that the -- the -- the Court's approach shouldn't change based on that. 1 I think the -- the Court -- the right approach for the Court is to still engage with the statutory text as it's written and, if it needs to be updated, to leave that updating to Congress.
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Breyer.
Justice Breyer: No, I won't. Thank you very much.
Chief Justice Roberts: Justice Alito.
Justice Alito: I -- I have two questions. The first is the one that I asked Mr. Clement: does it make any sense to talk about a system that uses a -- a random or sequential number generator in the very process of storing telephone numbers? The second is this: in order for your interpretation to be right, don't you have to show that there are or were systems that stored numbers using such a generator but didn't use the generator to produce the numbers? If -- otherwise, there wouldn't be any point in separately covering storage. So, if you could cover those two in -- 1 perhaps in reverse order, I would appreciate it.
Jonathan Y. Ellis: Sure. I'll -- so I'll start with the latter first. I -- I -- I do think that this statute can be read to cover for both verbs that do independent work. But let me start by saying that I don't think that's a requirement for the Court to adopt our reading. I think that the -- the Court has recognized in cases like Rimini Street and Atlantic Richfield that sometimes Congress does adopt a belt-and-suspenders approach. And so, at most, I think Respondent has shown that that's what they've done here. And I think that's the kind of superfluity that this Court would or -- would lead the Court to -- ordinarily to disregard the other ordinary rules of grammar or the other canons of construction. That said, I think, as -- as my friend acknowledged, I think there are two types of ways that the autodialers use random and sequential number generators, and I think it's natural for Congress to have described them both. And, in fact, I think, if you -- if -- if you think about "produce" in the statute and 1 what it likely means, I think it's kind of -- it -- it probably doesn't mean create, as Respondents suggest, because autodialers, or ATDSs, won't be any use if what they do is create brand-new 10-digit numbers that never existed before. They have to identify numbers that existed in the real world and have been defined -- assigned to telephone numbers. And so they --
Justice Alito: Well, they produce a list of numbers. What's -- what's strange about that idea?
Jonathan Y. Ellis: I -- I -- I'm not saying that it's strange to think of a random or sequential -- sequential number generator as creating 10-digit numbers. I think it's -- it's an awkward fit to say "producing telephone numbers to be called" if what you mean is "create." I think, rather, what it probably means is bring forth or offer up. And so, if that's the meaning that -- that you ascribe to "produce," then it's not inevitable that every use of a random or sequential number generator will -- will produce numbers.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, could TC -- I -- I from the beginning have wondered, could a TCPA lawsuit against individual smartphone users actually prevail, given that smartphones don't automatically dial phone numbers in the ways of this -- in the way that a sequential numbering system does? It doesn't seem like a smartphone can be an Automatic Telephone Dialing System. Am I missing something? Why wasn't that the -- the -- the main reason for reading things against the Respondent -- reading this -- reading this law as not applying to the Respondent?
Jonathan Y. Ellis: So, as to whether the TCPA or the ATDS definition could include smartphones, as you suggest, if you read the second prong of this statute to include an automatic requirement, then I think that at least limits the con- -- the circumstances in which an ordinary smartphone could be considered to be an ATDS. The Court -- the second prong of the 1 statute doesn't include the word "automatic." And I think it's an open question as to whether that's the right way to read this statute. Courts of appeals on both sides of the split have assumed that, and ACA has previously done it, but, again, I think it's -- it's not actually there in the text. And that's -- I think, if you don't adopt that reading, then it is when it begins to present serious problems for ordinary smartphones.
Justice Sotomayor: All right. Thank you, counsel.
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. Ellis, at the time the TCPA was enacted, there were a fair number of state statutes that dealt with the same general subject matter area, and every single one of those statutes defined an autodialer to encompass at least some machines that didn't use a random or sequential number generator. So doesn't that suggest that your definition is wrong? I mean, would Congress really have wanted to depart from all of those state statutes in this particular way?
Jonathan Y. Ellis: So I don't think it suggests our reading is wrong. I think what it suggests is that Congress approached the similar -- the same problem in a different way. And so it's true that all or almost all the state statutes included devices beyond those that use random or sequential number generators, but it's also true that almost every state, I think all but two, limited -- only addressed devices that delivered a prerecorded voice and then regulated those devices. Congress came at that same problem in a different way by first prohibiting all prerecorded voice calls to residential lines and to the sensitive lines, regardless of the technology -- dialing technology, and then separately prohibiting a -- a subset of the -- of -- of calls made with an ATDS using a random or sequential number generator. At the end of the day, it's a similar approach. Indeed, Congress's approach is somewhat broader. It's just a different approach.
Justice Kagan: And --
Jonathan Y. Ellis: I --
Justice Kagan: -- and why is it that Congress would have adopted that approach? I mean, if I understand what you're saying, you're saying that Congress decided to cover these predictive dialers when there was an automated or prerecorded voice but not when there was a live person on the line. What -- what sense would that have made? What difference does it make from the recipient of the call's perspective?
Jonathan Y. Ellis: So perhaps I was unclear. Congress regulates prerecorded voices with -- not -- without regard to whether they were made -- delivered with an automated system at -- at all. And they do that because I think that --
Justice Kagan: Well, I understand that, but within that, they were definitely -- they -- they definitely covered these predictive dialers, isn't that right?
Jonathan Y. Ellis: No. Actually, predictive dialers, at least in 1991, as I understand them, typically didn't deliver a prerecorded voice. They delivered -- they connected to a live operator. 1 So I don't think the prerecorded voice part of the statute covers predictive dialers and that --
Justice Kagan: There weren't any of these that existed that -- that were predictive dialers with a prerecorded voice?
Jonathan Y. Ellis: There -- there may have been. My -- my -- my point is, in the whole, predictive dialers, the point -- the way they worked, the whole point of them is to sort of time up the call so that there was a live operator available when the call was connected. They were principally --
Justice Kagan: Thank you.
Jonathan Y. Ellis: -- ways to connect live operators. And, actually --
Justice Kagan: Thank you.
Jonathan Y. Ellis: I'm sorry.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, Mr. Ellis. Two questions. Take them in whatever order you care. First, I think your argument depends upon the possibility that, in the world at the 1 time Congress adopted the statute, there were devices that used random number generators to store telephone numbers. So what evidence do you have that that exists -- existed in the world, number one? Number two, the same question I posed to Mr. Clement with respect to what Judge Barrett in her excellent opinion called the fourth possible interpretation. I understand the problems with it, but it does overcome this difficulty. And it -- it wasn't addressed in the briefs, and I'm just curious why it wasn't addressed and whether we need to rule it out, whether it would make any difference going with the first versus the fourth?
Jonathan Y. Ellis: So, as to your first question, whether there were devices in the world that stored using a random or sequential number generator, I -- I would point you to the -- page 19 and 20 of our brief and then the PACE and Noble Systems amicus brief that goes through this in some detail that describes that automatic dialing systems in 1991 either used a random or sequential number generator to generate numbers and then immediately dial them 1 or used them to generate numbers to store them for subsequent dialing. And I don't think it's unnatural to describe the latter system as using the random or sequential number generator to store the numbers in the same way that you might say that I have a backup power generator at my home that both generates and stores power for subsequent access or in the way you might say I -- you might describe using a web browser to download and store a file, that is to say, doing something more than just browsing the web. As to the latter -- second question about why we haven't addressed -- I actually do think we did address that. That possible interpretation, we think it is not available because of the comma.
Justice Gorsuch: No, I understand -- I understand that. I -- I -- I -- I'm -- that's not my question.
Jonathan Y. Ellis: Okay. As to the practical consequences of that, I think you should not leave it open. I think it's not the best reading.
Justice Gorsuch: I understand that 1 too. That wasn't my question either.
Jonathan Y. Ellis: Okay. I'm sorry, then --
Justice Gorsuch: My -- my question is, does it make any difference in the real world?
Jonathan Y. Ellis: I -- yes, it does. And the reason -- the difference it would make in the real world, at least if you -- I think you would understand that calling using a random or sequential number generator, you could -- that could describe taking a set list, a sort of preselected list, and then calling them in random order. But that's not the problem that Congress was trying to get at with the ATDS definition. The problem it was getting at with that definition and the restriction was calling indiscriminately, calling unintentional numbers that -- that would result in you -- in telemarketers accidentally calling emergency lines and cell phones and guest and patient rooms. That was what Congress was --
Justice Gorsuch: Thank you, counsel.
Jonathan Y. Ellis: -- trying to get at with that prohibition.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you. And good morning, Mr. Ellis. Justice Thomas and Justice Sotomayor, I think, and others have talked about the ill fit of the statutory language to current technology, and I want to break that down with you a bit because there are two -- as you've indicated, two prohibitions here. One is the prohibition on artificial or prerecorded voice calls, and that covers artificial or prerecorded voice calls to the house or to these specialized lines.
Jonathan Y. Ellis: Correct.
Justice Kavanaugh: And that part of the statute still makes sense and applies today, correct?
Jonathan Y. Ellis: Correct.
Justice Kavanaugh: Okay. So then you have the ATDS prohibition, which only applies to the calls to specialized lines, does not apply to calls to the house, and because artificial and prerecorded calls are already prohibited, must be getting at something different than 1 artificial and prerecorded calls. And I'm trying to figure out, one, what -- what -- what's that getting at at the time, what was the real-world problem; and, two, does that have any relevance at all today, as Justice Thomas and Justice Sotomayor were indicating, with the ATDS prohibition?
Jonathan Y. Ellis: So I think what it was getting at, Your Honor, was, one, it may have also been sort of a belt-and-suspenders in addressing those prerecorded calls. But I think it may be --
Justice Kavanaugh: Well, can I stop you right there? Do you think -- and this gets to Justice Kagan's question, what Congress was drawing on -- do you think they meant "and" instead of "or" and made a mistake?
Jonathan Y. Ellis: No, I guess I -- I don't think that. I think I -- I was going to -- what I was going to say is I think live calls, live operator calls, to those sensitive lines could equally cause problems. You know, I don't think we want telemarketers calling emergency -- 911 lines or bothering people at their -- in their patient rooms at a healthcare facility or, in 1 1991, making calls to cell phones which were unintentional at the time and were -- would then cost the -- the -- the called party by the minute. I -- I think those sorts of problems, they're exacerbated by prerecorded voice calls, but they're caused also in -- by indiscriminate calls that connect to live operators.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: So, Mr. Ellis, some of the lower courts have characterized this provision as ambiguous and, you know, said that that leaves the FCC some room to choose whether this applies, you know, to this kind of pre-stored situation or not. And you, in your colloquy with the Chief Justice, suggested that although the FCC, you know, may have a narrow band of authority, you weren't ruling that out either. And I guess I'm wondering if you could explain why you think any kind of Chevron deference would apply here, where we have two conflicting choices and we have to decide which is the best one, because I would have thought 1 that Chevron -- that the premise of it is that when Congress deliberately chooses open-ended language or vague language, it's implicitly delegated to the agency a range of discretion to make the choice. But this kind of thorny statutory provision doesn't strike me as reflecting an implicit congressional choice to delegate to the FCC how to regulate this.
Jonathan Y. Ellis: So I think that's a fair question, Your Honor. And I -- I would just say that I think the Court has often in the Chevron analysis asked just is it -- is the statute ambiguous and then took that ambiguity as an indication of Congress's delegation. We haven't addressed those issues here for the obvious reason that there isn't an outstanding agency interpretation for the Court to -- to gauge whether it should be -- it should give Chevron deference or -- or not, but I think it's a fair question.
Justice Barrett: Thank you, counsel.
Chief Justice Roberts: A minute to wrap up, Mr. Ellis.
Jonathan Y. Ellis: Thank you, Mr. Chief 1 Justice. I think I'll close with just one more word about the surplusage problem. For the -- that Respondents, of course, have identified. For the reasons I explained, I don't think the government's reading presents any meaningful surplusage, but even if you disagree, I think, at most, what Respondent has shown is that Congress took a sort of belt-and-suspenders approach here. He certainly hasn't shown the sort of superfluity that would warrant discarding the ordinary rules of grammar and other canons of construction. And I think that's particularly so in -- in light of the superfluity that Respondents' own reading would introduce. He makes clear on page 37 of his brief that, in his view, Congress drafted the ATDS definition to encompass "all technologies used to deluge cell phones with automated calls." But, if that were so, it's not clear why Congress would have included the first prong of the definition at all. Under Respondents' reading of the statute, you could strike not just one word but the entire modifying phrase, "using a random or 1 sequential number generator," if not all of Section 227(a)(1)(A), and the ATDS definition would reach the exact same universe of devices. That's the sort of superfluity that the Court ordinarily would not countenance, and we urge the Court not to do so here. Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Garner. ORAL ARGUMENT OF BRYAN A. GARNER ON BEHALF OF THE RESPONDENTS
Bryan A. Garner: Mr. Chief Justice, and may it please the Court: Any method of interpretation -- textualism, purpose of-ism, consequentialism -- favors affirmance here. Congressional purpose is overwhelmingly clear. It's privacy. Let me focus, though, on text. The issue here involves ordinary lexical meaning, grammar, and cognition. An example: To maintain or acquire lands to be developed using eminent domain. No linguistic rule should lead us to conclude that we must maintain lands using eminent domain. The adverbial modifier links up 1 with the verb acquire; that's ordinary meaning. Other canons are crucial. First, the conjunctive/disjunctive canon. The word "or" denotes two distinct categories, storing and producing, and the word order is significant. Second, the surplusage canon. The words "store" and "or" are given real work to do only on our reading. Third, the harmonious reading canon. The consent provision in the statute makes little sense with random number generation. You obtain consent from known people. Fourth, the presumption against ineffectiveness. Facebook would read the statute into oblivion because robocallers today use stored phone numbers to annoy people just as they often did in 1991. In Barr, just five months and two days ago, this Court repeatedly said that the Act prohibits almost all unsolicited robocalls. The borrower's numbers in that case would have been stored. The Court having invalidated the exception in that case, Facebook now argues for an across-the-board exemption: effectively all autodialers call -- all autodialer calls and 1 messages are exempt, they say. In reading law, this is called a viperine interpretation. Like a viper, it kills the statute and privacy.
Chief Justice Roberts: Thank you, Mr. Garner. You -- you agree, don't you, that our objective is to settle upon the most natural meaning of the statutory language to an ordinary speaker of English, right?
Bryan A. Garner: Yes, Your Honor.
Chief Justice Roberts: So, if these various rules of construction, viperine or -- or something else, those are only pertinent -- we don't assume that the ordinary speaker is applying those canons or rules of syntax at all, right?
Bryan A. Garner: Your Honor, that's correct. Most native speakers of English, competent users of the language, understand. For example, cookbooks are full of statements that say using a spatula, lift -- using a spatula, lift the omelet and tilt the pan. Nobody -- no -- nobody stops to parse it and say, oh, do I have to use the spatula to lift the pan?
Chief Justice Roberts: So the most probably useful way of settling all these questions would be to take a poll of 100 ordinary -- ordinary speakers of English and ask them what it means, right? That's -- that would be the most useful rule of construction?
Bryan A. Garner: I'm not sure that we would just take a poll of everybody and say -- I mean, I think it would be a useful datum, yes.
Chief Justice Roberts: Okay. Sort of shifting a little bit here, you're -- you say that if Facebook wins, we'll all be flooded with robocalls. But doesn't --
Bryan A. Garner: Well, that --
Chief Justice Roberts: -- doesn't the statute independently bar calls with artificial or prerecorded voices, which I think is what most ordinary speakers of English would regard as a robocall?
Bryan A. Garner: Well, Your Honor, the difficulty with having ordinary speakers or readers try to read a -- a legislative definition like this is immediately people would be a little bit befuddled by the legal language. They just would.
Chief Justice Roberts: Well, lawyers too, I guess, but the -- the -- the point is that Congress didn't write the legislation with the technical rules in mind, and I think ordinary speakers wouldn't read them that way. And so you just -- the most useful tool is kind of your -- your first -- first blush reading it in terms of how it makes sense. And I think most people's first blush would suggest that the -- your friend on the other side's reading makes the most sense.
Bryan A. Garner: Your Honor, I respectfully disagree if you take into account the -- the actual meaning of the words. But, if you -- if you just looked at it sort of mechanically and hastily, yes, it's possible that that is the way it would strike people. As Justice Holmes once said, a well-drafted statute -- this is paraphase -- phrasing slightly. A well-drafted statute must be able to withstand attacks by an intellect fired with a desire to skew the meaning. And I think that's a problem.
Chief Justice Roberts: What significance does it make that the ordinary 1 speaker of English we've been talking about would -- would have a very different knowledge background about these things today than would -- one would have in 1991?
Bryan A. Garner: Your Honor, I believe that TCPA is more important today than ever because of advances in technology. The social media companies know exactly where you are at all times. They know every mouse click that you've made for the last 20 years. And they can target in a very manipulative way. So the -- the basic technology of getting a message through to somebody who's carrying a handheld device remains the same.
Chief Justice Roberts: Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Mr. Garner, the -- sort of taking off your last point, the technology has changed. I think we're talking about the average person. Most people would have no idea today what some of the technology was in -- in -- in 1991, a pager. The -- most people would not realize 1 that caller IDs were cutting-edge and had to be purchased separately, that most people did not have cell phones. In fact, very few people did, and they were large. And car phones had to be installed. So technology has changed and moved along very rapidly. And don't you think it's rather odd that we are applying a statute that's almost anachronistic, if not vestigial and -- to a -- to -- to modern technology like Facebook and instant messaging, et cetera? Don't you think that at some point there's a -- there's at least a sense of futility?
Bryan A. Garner: Your Honor, I -- I -- I don't. The average American is very well familiar with robocalls and understands that these numbers -- actually doesn't care whether they were randomly generated or -- or whether they were sold because they gave their number to somebody and, in fact, would probably be more offended if they understood that somebody that they had dealt with and trusted had sold their numbers.
Justice Thomas: But you make my --
Bryan A. Garner: Everybody --
Justice Thomas: -- point, because it doesn't have to be randomly generated anymore. It's generated in other ways, but you make my point about technology. In the old days, it would be randomly generated because there was no way anyone could have that much instant -- information and use it that instantaneously.
Bryan A. Garner: Your Honor, in 1991, there were lots of stored numbers that were called. In fact, I -- I hesitate to talk about legislative history because I don't like talking about legislative history, but lists and databases of known numbers came up over 200 times, generators came up only four times in the whole legislative history.
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Breyer.
Justice Breyer: Interesting. Mr. Garner, you -- let's go back to when they wrote it. As you read it, it is unlawful to call a hospital, for example, using a phone that stores telephone numbers, period. Right? Is that right or not?
Bryan A. Garner: That's not quite right, Your Honor. It's -- it's illegal for the equipment to call. It has to be an automated dialing system, not just someone on just a cell phone.
Justice Breyer: Okay. So you can't have equipment, I see. Well, where is the automated, where does it say that? Let's see. Using an automatic system, I got it, okay.
Bryan A. Garner: Yes.
Justice Breyer: So you can't use an automatic system that stores numbers. Now then were there a lot?
Bryan A. Garner: Your Honor, there were databases --
Justice Breyer: Were there or a lot, or -- or did -- were there a lot, or did they -- what was the -- what was the situation like then?
Bryan A. Garner: Your Honor, there were databases and lists that were sold, and -- and there were also numbers automatically generated, but those are shots in the dark. That's why those have become superseded. Facebook's interpretation --
Justice Breyer: Yeah. Okay. I've got it. So -- so there -- at the time, there were systems that stored numbers both ways?
Bryan A. Garner: Yes, Your Honor.
Justice Breyer: And that's why you think they wanted to get it both ways?
Bryan A. Garner: Yes, Your Honor.
Justice Breyer: Then, over time, what happens is the world changes so everybody and his uncle has a system that fits within that ordinary definition of -- cell phones storing, then automatically dialing. We all have one. And so it gets too broad. And so should you narrow it? Now that seems like the converse of a situation where, you know, the famous -- you know all these examples, the -- the -- the silver fox is not thought to be an endangered animal, an endangered species, when they wrote the statute, but later it is, and so you say, well, there's a dynamic meaning which changes over time to pick things up, or it's a static meaning, just look back to see what they intended at the time. And Nino Scalia always used to say, 1 oh, that's just done to expand the statute. But, here, we're using it to contract the statute. Any comment? Is that totally wrong? I suddenly began to think about it that way.
Bryan A. Garner: Reading it to be just random number generators which produce numbers, to that specific technology would wither the entire statute. That's why I called it viperine.
Justice Breyer: It would contract -- it would contract --
Bryan A. Garner: Yes.
Justice Breyer: -- if we do that. You say "wither," that's pejorative. But in the -- in -- so often we interpret a statute dynamically to adapt to changing circumstances, looking at the context in which it is passed and how it's changed, in order to decide how to do so. And to do so here, there are a few words over there that really help. Is there anything wrong with reading a statute, looking for the intent in terms of change over time, did Congress intend it to change over time as technology changed, and then using the tools at hand in the context at hand 1 to produce a more sensible interpretation? What do you think?
Bryan A. Garner: Your Honor, I'd have no quarrel with any justice who wanted to do that, even though I think --
Justice Breyer: No, but, I mean, you -- I'm looking at you and your expert view. What do you actually think about such a thing? I haven't really seen it. I -- I just -- it suddenly occurred to me that this fits in that box possibly.
Bryan A. Garner: I'm a proponent of the fixed-meaning canon, but I do think that the words "store" and "or," it makes Congress look almost prescient. Given what has happened in the last 29 years, Congress looks prescient having said "store" and "or" before "produce."
Justice Breyer: All right. I'll think about it. Thank you.
Chief Justice Roberts: Justice Alito.
Justice Alito: Guido Calabresi has argued that courts should have the power to declare statutes obsolescent and obsolete. And if -- if we had that power, this statute might be a good candidate. But we haven't claimed it 1 so far, and assuming we don't, perhaps we have to put out of our mind the whole parade of horribles that arises as a result of the advent of smartphones and social media. So, if we think about the technology that existed at the time when this statute was enacted, the -- the biggest technology that seems to me to provide the -- the greatest practical problem for your interpretation is call forwarding, which I think was widely available when this statute was enacted. So would any machine that had a call -- a call forwarding capacity at that time be covered under your interpretation?
Bryan A. Garner: Your Honor, no. Nor would --
Justice Alito: Okay.
Bryan A. Garner: -- an immediate answer. In fact, a normal cell phone and normal uses of cell phones do not amount to an ATDS. It would have to have -- it would have to be altered significantly to be -- to become an autodialer. But human intervention is the thing that makes it something that is not automatic, anything that needs a push of a button to send a 1 message. Automatic dialing has been preprogrammed to send messages automatically at intervals without human involvement.
Justice Alito: Well, isn't it true that, at least as of now, everything that computers do requires at some point some degree of human intervention, some degree of human instruction?
Bryan A. Garner: That is true, Your Honor. But that involves not uploading a list of numbers; that involves human involvement, but it's the selecting of the number to be called and when to call, that is the human intervention. The immediate placing of the call that the FCC, the ACA, and the -- the D.C. Circuit and the -- and the Eleventh Circuit have all held that human intervention does exclude those calls from definitions of ATDS.
Justice Alito: And how would you define the degree of human intervention that's required?
Bryan A. Garner: Your Honor, it could be pressing buttons. It could be clicking a mouse on a number. It involves a human being 1 placing -- sending a message or placing a call. And it's the direct placement of a call.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, if we rule your way, the logical consequence is that every cell phone owner would be subject to the harsh criminal and civil penalties of the CPA. Could you give me a reason, other than that it hasn't happened yet, for -- for why Congress would have intended that?
Bryan A. Garner: Yes.
Justice Sotomayor: And, by the way, it seems -- don't -- please don't answer by saying it hasn't happened yet, and the reason I say that is because, if you get a ruling in your favor, I know for sure that there will be lawsuits against individuals that will follow.
Bryan A. Garner: And, Your Honor, I believe Article III judges know how to deal with those, what I imagine to be frivolous claims. But Facebook's scary argument that all cell phones might, with alterations, be made into automatic dialers really should be no more 1 availing than the realization that all of us have hundreds of deadly weapons in our homes. Law-abiding Americans just don't use rope and kitchen knives that way.
Justice Sotomayor: I think you're going to have to answer me more clearly than that. You don't think that cell phone users will do what?
Bryan A. Garner: They won't do automated mass dialing or blitz messaging, which isn't a normal function on a cell phone.
Justice Sotomayor: Well, I mean, I do e-mail blasts with friends.
Bryan A. Garner: Yes.
Justice Sotomayor: I can do all sorts of -- now with FaceTime and things of that nature, Zoom, we're doing basically automatic dialing and -- and -- and people being joined together by that process. So I don't -- I, for one, don't believe that we should think that our interpretation couldn't affect the development of new technology to help people do things more quickly but in -- in -- in the process end up violating the statute.
Bryan A. Garner: Your Honor, it seems to me that this Court, like the D.C. Circuit, could actually disclaim the result that normal uses of cell phones would produce liability. But there is a question of functional equivalence, and the prohibition speaks of consent. The difference between text messaging groups and friends is that everybody has consented. There's -- there's not a problem. The difficulty is when people's privacy is being invaded. That's what the statute was driving at.
Justice Sotomayor: Thank you, counsel.
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. -- Mr. Garner, you started off by noting that there are some kinds of statutes or sentences where the meaning of the words is so clear that the mind gravitates toward the ungrammatical reading. And that might well be, but -- but would you at least acknowledge that the reading that you're asking us to adopt is, in fact, ungrammatical? That you have two verbs, "store" and "produce." They have a shared direct 1 object, "numbers to be called." And then a modifier following all of that. So sort of setting aside the semantic arguments for the moment, do you -- do you agree that the grammar favors Facebook?
Bryan A. Garner: No, Your Honor, I don't think there's anything ungrammatical about this sentence. It's an unusual sentence, unusual syntax. It rather shows the infinite variety of the kinds of sentences that English speakers can devise, but just as in using a spatula, lift the omelet and tilt the pan, there's nothing ungrammatical about that. There's no -- there's no rule of grammar that any grammarian has recognized that would render this ungrammatical. Perhaps a little awkward, but not -- not ungrammatical.
Justice Kagan: Well, I think you just made the statute into something it's not. I mean, you took out the shared direct object. You took out the fact that the placement of the "using a random number generator" phrase is after both verbs. So you've considerably cleaned it up, I would say.
Bryan A. Garner: Your Honor, maybe my 1 better example is to maintain or acquire lands to be developed using eminent domain. That may be --
Justice Kagan: Well, that --
Bryan A. Garner: -- the better example.
Justice Kagan: -- that's one where I -- I take the point that it's just like sometimes you just -- grammar has to give way because the meaning is so clear. And, there, the meaning is so clear because you can't imagine eminent domain being used to maintain land. It's kind of like what is -- that's impossible. And so too for your argument in your brief about, you know, what does it mean for a domestic airline to drive. But I think that the point that Mr. Clement might make here is that the meaning here is not so impossible. You know, there's a little bit of awkwardness about saying that a number generator stores numbers, but, actually, that can be explained by looking at the kinds of dialing devices that existed at the time, where there were devices that generated numbers for immediate dialing and devices that stored numbers for later dialing. 1 So -- so, if that meaning is possible, shouldn't we go with that meaning when combined with the fact that it's the most grammatically proper way to read the sentence?
Bryan A. Garner: Your Honor, again, I would not concede that it's a more grammatically proper way of reading the sentence. To me, the -- if you look at the sentence, it seems clear and deducible from the text itself that Congress was concerned about known numbers, previously known numbers obtained from any source, those are stored, and numbers not previously known but generated by one of these machines. That -- that covers the universe of numbers, and the -- the wording, therefore, makes sense. Another little thing I might mention linguistically is that some verbs, lexical verbs they're called, feel complete on their own, and "store" is one of those. We all know what computer storage is. But a word like "produce," if you say "and produce the numbers," you think, what does that mean? It's -- it's sort of like a sentence, the bird chirps and lies. We know what the bird chirps means, but lies, what -- what do you mean 1 lies? Well, the bird chirps and lies comfortably in its nest. Now we wouldn't think that comfortably modifies chirps. And it's -- it's that kind of need to have the adverbial modifier explain to us what we mean by "produce." Computer production could be the manufacture of computers. It just doesn't -- it doesn't feel complete. I think that's the reason for the --
Justice Kagan: Thank you, Mr. Garner.
Bryan A. Garner: Yes.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, Mr. Garner.
Bryan A. Garner: Good morning.
Justice Gorsuch: You -- you conceded that the grammar here is awkward, but I'd like to pick up where Justice Kagan left off. And -- and I -- I think you -- you have -- certainly have an argument that grammar doesn't exhaust meaning, fine. But on what basis is this sentence grammatical? I -- I think it's so awkward I'd anticipate you'd rewrite it if it were given to 1 you. And when -- when we look at the adverbial phrase, there's nothing to indicate in the statute that it -- that it modifies only one of the verbs. And rules of grammar usually indicate that when you have a clause like that offset by a comma, it would modify both of the prior verbs, right?
Bryan A. Garner: No, Your Honor, that is -- that is a rule that you sometimes find as an exception to the rule of the last antecedent. That's about the only place. And you find that rule only in law books, not -- not in grammar. It's unrecognized by grammars. But the -- the point of synesis is simply that we must look at the semantic content of the words. We don't take the words as just fungible morphemes and say once you hit the comma, everything before it gets modified.
Justice Gorsuch: Well, let me ask you this. In -- in response to Justice Alito, you were talking about what happens if -- if we were to interpret the statute your way. And I guess I'm still a little unclear about the answer there. To store a number, if 1 it's totally divorced from the random or sequential number generator, and then to dial such number would seem to be enough. Others have worried about our -- our contemporary cell phones that can do that. But even in -- at the time of the statute's adoption, there were phones that captured numbers that had been dialed and you could press redial. Why wouldn't -- and that was common even -- even in the 1990s, I believe. Certainly a lot earlier than cell phones. Why wouldn't this statute make a -- a criminal of us all?
Bryan A. Garner: Your Honor, each of those actions that you described involves human actuation.
Justice Gorsuch: I understand it requires a human person to -- to push the redial button, but -- but in what -- what way does the statute require that on your reading?
Bryan A. Garner: Just to make sense of the provisions. Say you put --
Justice Gorsuch: Well, all -- all the -- all the statute says is you have to have equipment that stores a number and can be used 1 to dial the number.
Bryan A. Garner: And it --
Justice Gorsuch: I -- I don't see where it excludes human actuation as part of the equation.
Bryan A. Garner: Well, it -- that -- that's the word being defined, automatic dialing system, and it must be the equipment itself that does the dialing.
Justice Gorsuch: No, the equipment has to have the capacity to store and it has to have the capacity to dial. It doesn't say it must do it solely by itself. I mean, now we're really changing the grammar, aren't we?
Bryan A. Garner: No, I don't mean to, Your Honor. That is in the definition, the capacity to store and dial.
Justice Gorsuch: Right, the capacity to dial. Nobody doubts that my redial button -- my phone with a redial button circa 1990 has a capacity to redial a stored number, do they?
Bryan A. Garner: Your Honor, it's -- it's not considered automatic when -- when you place the call if you press the button. That's -- 1 that's what -- that's what --
Justice Gorsuch: Congress can define anything to mean anything it wishes, right?
Bryan A. Garner: That's correct, Your Honor.
Justice Gorsuch: All right. So it can define an automatic dialing system to mean whatever it wishes, and, here, it defined it to mean equipment which has the capacity to dial a stored number on your interpretation.
Bryan A. Garner: Yes. And the equipment itself does the dialing, not the person.
Justice Gorsuch: Where does that come from, though? You're -- you're putting a lot of words there.
Bryan A. Garner: I don't think so, Your Honor. The -- it -- it -- I'm looking at the definition itself. The term "ATDS" means equipment that has the capacity to dial such numbers. It's the equipment that dials. And the word "automatic" is the word being defined. That's -- that's where the courts and the FCC have gotten the idea that human intervention is so critical to take it out of the -- to take a normal cell phone use out of 1 the realm of ATDS.
Justice Gorsuch: I -- I certainly understand it's necessary to avoid a -- a parade of horribles. Thank you.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you, Chief Justice. And good morning, Mr. Garner.
Bryan A. Garner: Good morning.
Justice Kavanaugh: This case will depend heavily ultimately on the text, and that's been well covered in the briefs and in other questions. I'm not going to belabor that in my time, but I want to ask some more questions to follow up on my prior ones. I'm trying to understand how this worked in 1991 and how it works now and what it's getting at. So, first of all, even if we agree with the other side here, robocalls are still prohibited, art -- meaning artificial or prerecorded calls. That part is not affected -- is not involved in this case. That part of the statute's not obsolete at all. And that part of the statute, even if you were to lose, will 1 still operate to prohibit prerecorded or artificial calls to the home or to cell phones unless an exception applies, correct?
Bryan A. Garner: Your Honor, I -- I -- I don't believe that is correct. Robocalls is defined in the TRACE Act from last year. Congress defined it to include all violations of this statute. That is --
Justice Kavanaugh: Okay. Just --
Bryan A. Garner: -- robocalls --
Justice Kavanaugh: -- assume I'm using it just to mean artificial or prerecorded calls.
Bryan A. Garner: Yes.
Justice Kavanaugh: If I use it that way, that part of the statute is not at issue in this case. That part of the statute will still apply even if you were to lose this case, correct?
Bryan A. Garner: Yes, Your Honor.
Justice Kavanaugh: Okay. Then you said that the purpose -- I think you started with this, the purpose of this separate ATDS prohibition, separate from the prohibition on artificial or prerecorded calls, the purpose of 1 this was privacy at least in part I think you suggested. The problem --
Bryan A. Garner: Yes, Your --
Justice Kavanaugh: -- in seeing that --
Bryan A. Garner: Yes, Your Honor. I -- the whole -- the entire TCPA is about privacy.
Justice Kavanaugh: Okay. But it -- but this provision in particular. And the problem with the structure of the statute that that creates is that the ATDS prohibition does not apply to calls to the residence. And that suggests that the ATDS prohibition was about something other than privacy. How do you respond to that?
Bryan A. Garner: Your Honor, I -- there were different protections given in different ways by Congress. The residents did prohibit those prerecorded calls. It was -- and they also have a do not call list that they are protected by. In the case of cell phones and pagers and emergency numbers and so on, it was a do not call mandate across the board, unless you have consent or it's an emergency. 1 So there were -- then there were reasons, perhaps, for this. One is that cell phones are carried on the person and they're therefore with you at all times. Like pagers, they receive text messages, and residential lines don't. And people were having to pay for receiving calls, and some people still do, by the way, on some plans. But, as one of the opinions in Barr said, in 1991, the cell phone owner not only suffered the pleasure of receiving robocalls but also paid for the privilege.
Justice Kavanaugh: Okay. As -- you -- you referenced in the brief the state statutes. Those, of course, prohibited at the time ATDS technology combined with prerecorded or artificial messages. Congress severed those two things and separately prohibited prerecorded or artificial messages and then separately ATDS, even with a live operator, presumably. Does that -- doesn't that suggest the state statutes aren't especially probative here?
Bryan A. Garner: Your Honor, I think they 1 are worth looking at. For example, the -- the placement of using an artificial -- using a random or sequential number generator. But there was a great deal of variation among the states, and what we ended up with is a federal statute that is very nuanced and represents a great many legislative compromises.
Justice Kavanaugh: Thank you very much.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: Mr. Garner, you've talked in a number of these -- in response to a number of the questions that you've been asked about the need for human intervention. You know, in -- in response to Justice Gorsuch, you talked about the finger hitting the redial button or the finger hitting the stored number in the phone. What about --
Bryan A. Garner: Yes, Your Honor.
Justice Barrett: -- using the auto reply function on an iPhone? So I can set that up to say do not disturb me, I'm driving, or do 1 not disturb me, I'm sleeping. And I can program the phone -- and this just comes with the iPhone, it's not special software -- to be sent to my favorites or to all my contacts. So is that the necessary human intervention? I'm not pressing a button each time.
Bryan A. Garner: Your Honor, it's not an auto dialer because the -- the communication is prompted --
Justice Barrett: That's --
Bryan A. Garner: -- by the person.
Justice Barrett: -- that's not what I asked you. I asked about human intervention. Is that considered human intervention?
Bryan A. Garner: I think that is a -- a different circumstance, Your Honor, where, actually, programming it would not involve human inter- -- intervention, but the consent provision --
Justice Barrett: I -- I'm not asking whether --
Bryan A. Garner: -- takes it out of the prohibition.
Justice Barrett: -- Mr. Garner, I 1 didn't ask whether it was covered by the statute. I asked you whether that counts as human intervention, because a lot of your argument lands on this idea that, well, you know, human intervention means that we're pressing the buttons on the phone that automatically makes a call. Justice Alito asked you, you know, how far back does that go, because, obviously, human intervention is present at -- at some point. And -- and, you know, many people, your opponents, several of the lower courts, the Seventh Circuit in Gadelhak has said that it seems like on one reading of the text the auto reply function would be brought within and -- within the statute. And I'm not asking you for all of the arguments to that effect. I'm only asking you about the human intervention point. Would that be enough, one step removed, by using the auto reply function, does that count as human intervention?
Bryan A. Garner: Your Honor, I don't believe it is.
Justice Barrett: And -- and why? How 1 do you tell when human intervention is close enough to not be human intervention anymore or to be human intervention?
Bryan A. Garner: The -- there -- there are difficult cases and shades of gray, and -- and -- and I think a clean -- the clean bright-line test that Congress devised is consent. The -- the idea that -- there are going to be a lot of cases about --
Justice Barrett: Okay. Mr. Garner --
Bryan A. Garner: -- degrees of human --
Justice Barrett: -- let me -- let me just stop, because I wasn't asking about the consent, because I want to ask you about something else too. So you talked in your brief about this concept of synesis, and I'm wondering whether you can identify any case, because your opponents say there is none, in which a court has relied on that concept. And I ask because it strikes me as the kind of concept that might make sense in some interpretive context, when one interprets some kind of language, say literary language. You know, you lean heavily on this 1 idea that the ordinary speaker of language or what would make sense to people. And synesis kind of gets at that but gives it a different name. Is that a legal concept? I mean, you -- you actually -- you and Justice Scalia don't talk about it in reading law, but you do talk about it in modern English usage, which, of course, gets at a far broader range of interpretive problems and grammar problems. So is it a legal concept? Is it appropriately applied in the law?
Bryan A. Garner: Your Honor, it's a linguistic concept that has been often recognized in the law. In fact, this Court has frequently said that we go by the sense of the words more than by some pedantic rules of grammar. The courts said that through the -- through the decades many times.
Justice Barrett: And is that -- is that a proposition that you would endorse? It seems like going through the sense of the words and the purpose of the statute would be contrary to the -- the method of interpretation that 1 you've endorsed in other contexts.
Bryan A. Garner: Your Honor, I don't endorse that broadly as it commonly appears. It tends not to appear in the post-Scalia years. And I -- I -- I -- I don't endorse it broadly. And yet it does recognize that we must look at the sense of the words to understand the sentence.
Justice Barrett: Thank you, counsel.
Chief Justice Roberts: Mr. Garner, you can take a few minutes to wrap up.
Bryan A. Garner: Thank you, Your Honor. I'll take 60 seconds. On Facebook's reading, it would have been possible even in 1991 to download the entire phone book and autodial every number with impunity, thousands per minute, as long as you stored the numbers on a floppy disk or hard drive. Just don't store them on an algorithmic number generator, a piece of equipment not even meant for storage. The statute never sensibly meant that. This case isn't about cell phones calling. It's about cell phones being called. 1 It's about computer systems that send out millions of illegal calls and messages per day. There's no reason to think that Congress thought haphazard non-consensual calls to be bad but targeted non-consensual calls, far more intrusive, to be quite acceptable. In Barr, this Court said that debt collectors aren't free to send in the robots. Now Facebook wants to free up all the robots for unsolicited calls. We urge the Court to reject this misreading and affirm.
Chief Justice Roberts: Thank you, Mr. Garner. Mr. Clement, rebuttal. REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER
Paul D. Clement: Thank you, Mr. Chief Justice. Just a few points in rebuttal. First, the point has been made that there's some awkwardness between talking about the verb "store" and using a random or sequential number generator. That awkwardness can only matter for one of two reasons. One, it could matter if it were just 1 impossible to use a random or sequential number generator to store numbers. But it's not impossible. It's not technologically impossible, as the PACE and Noble brief makes clear, nor is it impossible as a matter of ordinary usage because, as long as I'm using the generator as part of the storage process, the word makes sense just like dialing using a random or sequential number generator. The other reason it could matter is because there's a superfluity problem such that anything that uses a random number generator to store numbers will also use the generator to produce the numbers. But if we're talking about superfluity here, there's a far greater superfluity problem on the Respondents' side of the case because they would essentially read the words "using a random or sequential number generator" out of the statute. And you can't read this statute, particularly when you understand the limited scope of the ATDS prohibitions, without thinking that that phrase is at the heart of the statute. Second, there's been some discussion about how automatic something needs to be and 1 whether that could save the cell phones. There's two points to make about that, Your Honor. First of all, the adverb "automatically," the adverbial phrase "without human intervention," the adverbial phrase "en masse," none of those phrases is in the statute. And what is in the statute and the modifier that actually gives an Automatic Telephone Dialing System a sense of automaticness is using a random or sequential number generator. But even if you read that word into the statute, it doesn't solve the problem. If I tell Siri to dial a number from one of my stored contacts, that's about as automatic as dialing gets. And call forwarding, even back in 1991, was just as automatic. You'd call somebody's number thinking you were getting one line, and it would automatically forward you to a different line. And, of course, if you typed in the wrong line to forward it to, you could be looking at a lot of liability under the ATD -- 1 under the TCPA. Finally, a lot of discussion about the importance of 1991 versus 2020. Obviously, 1991 is what's most important for interpreting the statute itself. And if you look at that, things even that existed in 1991, like call forwarding, the problem was raised and the response from the FCC was, no, look at the statutes. Those aren't covered because they don't use a random or sequential number generator. If you look at the testimony before Congress in 1991, it's telling. The Direct Marketing Association did oppose the Automatic Telephone Dialing System prohibition because that's not what they were doing, even though they were using stored lists. The person who opposed it was a guy named Ray Coker, who made these automatic dialing systems that used a random or sequential numbering device. And, lastly, just let me say that 2020 may be relevant particularly for constitutional avoidance. So, for all those reasons, Your Honor, we ask that you reverse the Ninth Circuit.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:23 a.m., the case was submitted.)