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The Supreme Court turned to its grammar books to offer Facebook victory on Thursday in an under-the-radar case over whether the internet giant broke a three-decade-old federal law cracking down on the practices of abusive telemarketing.
In a unanimous decision drafted by Judge Sonia Sotomayor, the court supported a narrow definition of automated dialing systems, which are largely banned under the 1991 Consumer Protection by Telephone Act. The 8-0 opinion and a concordance written by Judge Samuel Alito presented a lively debate on the merits of relying on language textbooks to discern the meaning of legal texts.
The case was brought by Noah Duguid, who said he started receiving Facebook login notification messages in 2014 on his phone and was unable to stop them, although ‘he never created an account. For about 10 months, Duguid said, he tried to get rid of messages, texts and emails to the company to no avail. Duguid said the messages continued even after being informed that “texting on Facebook is now disabled.”
Duguid has sought to bring a class action lawsuit on behalf of himself and others who have faced the same alleged abuse. But Facebook asked a federal district court to dismiss Duguid’s lawsuit, citing Congress’ definition of automated dialers as systems that can “store or generate phone numbers to call, using a random or sequential number generator. “.
Given this definition, Facebook argued, Duguid would have to prove that Facebook used a number generator to store or generate his phone number. He couldn’t do this, the company argued, for the simple reason that Facebook didn’t use a number generator at all.
Had the court accepted Duguid’s argument, Facebook said, it could have the effect of making it illegal to use a smartphone to make a normal phone call – given their ability to automatically store and call numbers.
But Duguid argued that “using a random or sequential number generator” only applied to the production of his number, not how the company stored it. And, he argued, Facebook clearly had his number stored.
The district court ruled for Facebook and dismissed Duguid’s complaint, but the U.S. 9th Circuit Court of Appeals overturned that decision in 2019 and allowed Duguid’s case to move forward. The appeals court cited a case it had decided a year earlier, Marks v. San Diego Crunch.
The TCPA defines an automatic telephone numbering system as “equipment which has the capacity – (A) to store or generate telephone numbers to be called, using a random or sequential number generator, and (B) to dial from such numbers ”.
“In Marks, we made it clear that the adverbial phrase ‘using a random or sequential number generator’ only changes the verb ‘to produce’, not the preceding verb, ‘store’,” wrote circuit judge Mary McKeown. .
On appeal, the Supreme Court ruled that this was not entirely true. Quoting what is known as the “serial qualifier canon,” Sotomayor wrote that the most natural reading of the definition would apply the number generator requirement to both the storage and production of phone numbers.
“As several leading treatises explain,” Sotomayor wrote, “a comma-separated qualifying sentence from the antecedents is proof that the qualifier is meant to apply to all antecedents instead of just the preceding immediately.”
By way of illustration, Sotomayor considered a teacher who announced that students “do not have to complete or check homework to be handed in for a grade, using online homework help websites.”
“It would be strange to read this rule as prohibiting students from completing their homework, with or without online assistance,” Sotomayor wrote.
Sotomayor cited a number of legal and grammatical heavyweights to support her, including a 2012 book written by the late Judge Antonin Scalia and grammarian Bryan Garner.
“According to the conventional rules of grammar, ‘[w]When there is a simple parallel construction that involves all of the nouns or verbs in a series, “a modifier at the end of the list” normally applies to the whole series, “Sotomayor wrote, citing the book,” Reading Law: The Understanding of Legal Texts. “
Garner was one of Duguid’s lawyers in the case.
In court documents, he and other attorneys argued that the higher court should avoid the serial qualifying canon in favor of the “distributive wording canon,” which would apply the modifier to the most appropriate verbs depending on the context, or the “last canonical precedent”, which would apply the modifier to the verb it immediately follows.
Garner also took issue with Facebook’s claim that the comma in the definition after the word “called” settled the issue.
“The comma tells the reader to look further back to see what needs to be done using a number generator, but doesn’t tell the reader how far away,” Garner and the other lawyers, including Sergei, wrote. Lemberg.
Garner declined to comment on the court ruling.
Alito, who mostly agreed with Sotomayor’s opinion, declined to join. In his agreement, he cited the “heavy dependence” of the majority on the canon of series qualifiers, which, according to him, had come to play “a leading role in our cases of statutory interpretation”.
After all, Alito writes, grammar “rules” aren’t really rules.
“Even grammar, according to Mr. Garner, is generally just an ‘attempt to describe the English language as it is actually used,” “Alito wrote, citing another book by the author,” The Chicago Guide to Grammar, Usage, and Punctuation. “
Alito wrote that he agreed with Sotomayor’s interpretation of the comment made by the teacher who asked her students not to use homework help websites. But, he wrote, this understanding was not based on the syntax of the sentence, but rather on the “common understanding that teachers don’t want to forbid students from doing their homework.”
He noted what would happen if the teacher used the word “destroy” or “incinerate” instead of “finish”.
The concept of ‘using online homework help websites’ to do any of these things would be absurd, and no reader would interpret the phrase to have that meaning – even if it does suggest the canon of series qualifiers, “he added.
Alito suggested that the strength of the different canons could be tested empirically by analyzing combinations of texts from English databases and seeing how people actually use the so-called series modifiers in practice. In the vast majority of cases, he suggested, “the meaning of the question” would be likely to reveal meaning.
In a footnote, Sotomayor wrote that she agreed with Alito that linguistic canons were not inflexible rules. But, she wrote, she disagreed with him as he argued for judges relying primarily on their own linguistic sense to interpret ambiguous laws.
“Difficult ambiguities in the statutory text will inevitably arise, despite the best efforts of lawmakers writing in ‘English prose’,” Sotomayor wrote. “Courts should approach these interpretive issues in a methodical manner, using traditional tools of statutory interpretation, in order to confirm their assumptions about the ‘common understanding’ of words.”
The case is Facebook v. Noah Duguid, No. 19-511.
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