May 6, 2020

Supreme embarrassment: The flush heard around the country


The Supreme Court was making history Wednesday afternoon, holding arguments over the phone because of Covid-19, when all of a sudden there was the distinct sound of a toilet flushing.

Across the country, the public that has never before this week been able to listen in real time to oral arguments held remotely was treated not only to deep questions related to the First Amendment and robocalls but also to someone’s apparent bathroom break.

The errant flush from an unknown source comes as the justices, lawyers and the country are dealing with the new realities — and hazards — of conducting their business over teleconference lines.

The case at issue concerned the Telephone Consumer Protection Act that prohibits unwanted calls to cellphones by use of an automated system. Challengers say one provision violates the Constitution. Lawyer Roman Martinez, representing political groups challenging the law, was pressing his point when the offending flush occurred.

Martinez did not seem fazed or publicly notice the interruption.

The Supreme Court has issued guidance to lawyers who would participate in oral arguments over the phone, noting that once one lawyer’s argument is completed, his or her line would be muted and the “line for the next counsel will be unmuted.”

Ruth Bader Ginsburg participates in Supreme Court arguments from hospital

The court has provided a live audio feed of the arguments to Fox News (the network pool chair), the Associated Press and C-SPAN. CNN.com has livestreamed each session.

Robocall dispute

The robocall law was enacted in 1991 as a response to consumers who were fighting intrusive phone calls. But the ban does not cover all calls. One exemption, added by Congress in 2015, concerns collection calls related to debts owed to the federal government. The provision was added, according to the government, so it could ensure that debts owed to the United States could be collected as quickly and efficiently as possible.

Political organizations challenging the statute say the exemption was unconstitutional and that the entire law must fall. The groups seek to call voters on their cell phones using automatic dialing systems to solicit donations or to send messages regarding political issues.

A federal appeals court held last year that the government debt exemption violated the First Amendment because it banned some calls based on content, but allowed others. The court said, however, that the provision could be severed and the rest of the law could remain in effect.

Calls to the Supreme Court and the Justice Department were not immediately returned.

CORRECTION: This story has been updated to correctly spell Roman Martinez’s first name.



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