On November 1, Facebook filed a response to a brief that the Department of Justice submitted as an intervenor in an action where Facebook has challenged the constitutionality of the TCPA under the First Amendment. 

As background, a putative class action was filed against Facebook in April 2016 alleging that Facebook violated the TCPA by using an autodialer to send text messages without consent.  Holt v. Facebook Inc., No. 3:16-cv-02266 (N.D. Cal.).  The plaintiff, who claims to never have been a user of Facebook.com, says she began receiving “impersonal, promotional text messages” shortly after getting a new cell phone and continued receiving messages, including status updates, without her consent.  Plaintiff alleges that Facebook routinely continues to send text messages to phone numbers of former users after the numbers have been recycled and are reassigned to new consumers who have not consented to receive the messages.

Facebook filed a motion to dismiss on various grounds, including that the plaintiff failed to plausibly allege the use of an autodialer.  Facebook further argued that, even if the plaintiff had plausibly alleged the use of an autodialer, the TCPA violates the First Amendment because it impermissibly places restrictions based on content.  As examples of impermissible content restrictions, Facebook pointed to the TCPA’s exceptions for calls to collect debts owed to or guaranteed by the U.S. government, and calls for emergency purposes like certain medical reminders.  These exceptions, according to Facebook, demonstrate that the TCPA restricts speech based on its content alone.  In support of its argument, Facebook cited to Reed v. Town of Gilbert, 576 U.S. _, 135 S. Ct. 2218 (2015), where the Supreme Court held that a town’s regulations on the display of outdoor signs were content-based regulations subject to strict scrutiny review.  Facebook argued that the TCPA’s provisions, like the regulations in Reed, are not narrowly tailored to serve compelling state interests and thus violate the First Amendment.

On October 17, the Department of Justice intervened in the private action and filed a brief in support of the constitutionality of the TCPA.  After noting that the court should first resolve Facebook’s non-constitutional arguments for dismissal, the government provided reasons why the TCPA should be upheld as constitutional.  The government argued that the messages at issue were commercial speech subject to intermediate, not strict, scrutiny, and that the Ninth Circuit Court of Appeals had already upheld the constitutionality of the TCPA in two prior cases.  The Supreme Court’s decision in Reed, the government continued, did not support Facebook’s arguments because it did not involve commercial speech like Facebook’s text messages.

On November 1, Facebook responded to the government’s brief by again arguing that a straightforward application of Reed demonstrates that the TCPA violates the First Amendment both facially and as applied to Facebook.  Facebook argued that Reed did not merely restate the law, it changed the way that courts look at content-based restrictions by shifting the focus away from the purpose of the law to the application of the law.  Because the TCPA treats communications differently based on their content, Facebook argued, it is unconstitutional regardless of whether the statute’s purpose is content neutral.

Although the court may not ultimately reach the constitutional question if it decides that plaintiff has not plausibly alleged the use of an autodialer or if the parties settle, Facebook’s First Amendment challenge demonstrates that controversy over the law is not going away any time soon.  As businesses continue to face the potential liability of uncapped statutory damages under the TCPA, they will continue to challenge the statute and agency interpretations.  Indeed, as we noted a few weeks ago in a TCPA Special Update, the FCC’s 2015 Declaratory Ruling and Order that expanded the scope of the TCPA is currently under attack in the United States Court of Appeals for the D.C. Circuit.  Given the uncertainty of any potential effect on the validity of the TCPA or the FCC’s interpretive rules, businesses should continue to comply to minimize their exposure.

We will continue to keep you posted on these cases and other developments as they arise.