The Supreme Court turned to its grammar books to deliver a victory for Facebook on Thursday in an under-the-radar case about whether the internet giant had run afoul of a three-decade-old federal law curbing abusive telemarketing practices.
In a unanimous ruling authored by Justice Sonia Sotomayor, the court backed a narrow definition of automated dialing systems, which are largely barred under the 1991 Telephone Consumer Protection Act. The 8-0 opinion, and a concurrence authored by Justice Samuel Alito, featured a spirited debate over 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 login notification messages from Facebook in 2014 on his phone and wasn’t able to stop them, despite never creating an account. For some 10 months, Duguid said, he tried to rid himself of the messages, texting and emailing the company to no avail. Duguid said the messages continued even after he was told “Facebook texts are now off.”
Duguid sought to bring a class action lawsuit on behalf of himself and others who 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 produce telephone numbers to be called, using a random or sequential number generator.”
Given that definition, Facebook argued, Duguid would have to prove that Facebook had used a number generator to store or produce his phone number. He couldn’t do that, the company argued, for the simple reason that Facebook did not 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 place a normal phone call — given their ability to store and call numbers automatically.
But Duguid argued that “using a random or sequential number generator” applied only to the production of his number, not to how the company stored it. And, he argued, Facebook clearly did have his number stored.
The district court ruled for Facebook and dismissed Duguid’s suit, but the 9th U.S. Circuit Court of Appeals reversed that decision in 2019 and allowed Duguid’s case to move forward. The appeals court cited a case it had decided a year before, Marks v. Crunch San Diego.
The TCPA defines an automatic telephone dialing system as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”
“In Marks, we clarified that the adverbial phrase ‘using a random or sequential number generator’ modifies only the verb ‘to produce,’ and not the preceding verb, ‘to store,'” Circuit Judge Mary McKeown wrote.
On appeal, the Supreme Court ruled that was not quite right. Citing something called the “series-qualifier canon,” Sotomayor wrote that the most natural reading of the definition would apply the number generator requirement to both the storing and the producing of the telephone numbers.
“As several leading treatises explain,” Sotomayor wrote, a “qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.”
As an illustration, Sotomayor considered a teacher who announced that students “must not complete or check any homework to be turned in for a grade, using online homework-help websites.”
“It would be strange to read that rule as prohibiting students from completing homework altogether, with or without online support,” Sotomayor wrote.
Sotomayor cited a number of legal and grammatical heavyweights to back her up, including a 2012 book authored by the late Justice Antonin Scalia and the grammarian Bryan Garner.
“Under conventional rules of grammar, ‘[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,’ a modifier at the end of the list ‘normally applies to the entire series,” Sotomayor wrote, quoting the book, “Reading Law: The Interpretation of Legal Texts.”
Garner was one of the lawyers for Duguid in the case.
In court papers, he and other attorneys argued that the top court should eschew the series-qualifier canon in favor of the “distributive-phrasing canon,” which would apply the modifier to the verbs most appropriate based on context, or the “last-antecedent canon,” which would apply the modifier to the verb it immediately follows.
Garner also challenged Facebook’s contention that the comma in the definition after the word “called” settled the matter.
“The comma tells the reader to look farther back to see what must be done using a number generator but does not tell the reader how far back,” wrote Garner and the other attorneys, including Sergei Lemberg.
Garner declined to comment on the court’s decision.
Alito, who for the most part agreed with Sotomayor’s opinion, refused to join it. In his concurrence, he cited the majority’s “heavy reliance” on the series-qualifier canon, which he said had come to play “a prominent role in our statutory interpretation cases.”
After all, Alito wrote, grammar “rules” are not really rules.
“Even grammar, according to Mr. Garner, is ordinarily just ‘an attempt to describe the English language as it is actually used,'” Alito wrote, quoting another book from 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 instructed her students not to use homework-help websites. But, he wrote, that understanding was not based on the syntax of the sentence but instead the “common understanding that teachers do not want to prohibit students from doing homework.”
He noted what would happen if the teacher had used the word “destroy” or “incinerate” instead of “complete.”
“The concept of ‘using online homework-help websites’ to do any of those things would be nonsensical, and no reader would interpret the sentence to have that meaning—even though that is what the series-qualifier canon suggests,” he added.
Alito suggested that the strength of the various canons could be tested empirically by analyzing combinations of text from English language databases and seeing how people actually use so-called series modifiers in practice. In the vast majority of cases, he suggested, “the sense of the matter” 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 to the extent that he argued in favor of judges primarily relying on their own linguistic sense when interpreting ambiguous laws.
“Difficult ambiguities in statutory text will inevitably arise, despite the best efforts of legislators writing in ‘English prose,'” Sotomayor wrote. “Courts should approach these interpretive problems methodically, using traditional tools of statutory interpretation, in order to confirm their assumptions about the ‘common understanding’ of words.”