We previously discussed Facebook’s motion to dismiss challenging the constitutionality of the TCPA under the First Amendment in Holt v. Facebook Inc., No. 3:16-cv-02266 (N.D. Cal.).  As a refresher, Facebook filed a motion to dismiss on various grounds, including that the TCPA violates the First Amendment because it impermissibly places restrictions based on content. 

On March 9, the court rejected Facebook’s constitutional challenge.  Applying strict scrutiny on the basis that the emergency-purposes and debt-collection exceptions to TCPA are content-based, the court held that the TCPA is constitutional because it “furthers a compelling interest and is narrowly tailored to achieve that interest.”  Facebook had conceded that the government had a compelling interest, but argued that the TCPA was underinclusive and overinclusive.  Rejecting the underinclusive argument, the court noted that there were only two exceptions that “do not do ‘appreciable damage’ to the privacy interest underlying the TCPA.”  In rebuffing Facebook’s argument that the TCPA was overinclusive, the court cited the reasoning of another court that “the TCPA does not restrict individuals from receiving any content they want to receive—speech that would otherwise be prohibited by the TCPA is immediately removed from the purview of the statute once express consent is provided.”

Although Facebook lost its motion to dismiss plaintiff’s TCPA claims, it succeeded on May 2 in obtaining certification from the court for an interlocutory review of the court’s order and a stay in the litigation.  Even if the Ninth Circuit does not accept Facebook’s interlocutory appeal, the stay will continue pending the D.C. Circuit’s decision in ACA International v. FCC, No. 15-1211.