A federal judge in the Northern District of California recently denied a motion to dismiss a putative class action accusing Facebook of violating the TCPA by sending text messages reminding users about their friends’ birthdays. In so doing, the court rejected Facebook’s First Amendment challenge and found that the TPCA survived strict scrutiny. Brickman v. Facebook, Inc., No. 16-0751, 2017 U.S. Dist. LEXIS 11849 (C.D. Cal. Jan. 27, 2017). 

Citing Reed v. Gilbert, 135 S. Ct. 2218 (2015), Facebook argued that the TCPA should be subjected to strict scrutiny because it is “riddled with exceptions that draw distinctions based on the message a speaker conveys.” Id. at *16. In support of this position, Facebook pointed to three provisions, specifically the provisions that: (1) exempt calls made for emergency purposes, 47 U.S.C. § 227(b)(1)(A); (2) exempt calls made to collect a debt owned or guaranteed by the government, id. § 227(b)(1)(A)(iii); and (3) empower the FCC to exempt calls made with an ATDS if the calls “are not charged to the called party” and are “in the interest of the privacy rights [the TCPA] is intended to protect, id. § 227(b)(2)(C). Id. at *18-19.

The court found that the provision that empowers the FCC to make future exemptions was not in and of itself content-based, but that the exceptions for calls made for emergency purposes or to collect a debt owed or guaranteed by the government were content-based and therefore subject to strict scrutiny. Id. at *19-21. Though the application of strict scrutiny is often fatal, as it was in Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) and Gresham v. Rutledge, No. 16-241, 2016 U.S. Dist. LEXIS 97964 (E.D. Ark. July 27, 2016), the court concluded that the TCPA withstood such scrutiny. Id. at *22 (“While strict scrutiny is a difficult standard to meet, the Supreme Court has sought to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’” (citing Williams-Yulee v. Fl. Bar, 135 S. Ct. 1656, 1666 (2015))).  Facebook argued that the TCPA’s exceptions were “hopelessly underinclusive” under Reed because texts about emergencies and government debt are exempted despite being no less intrusive to privacy than other types of calls. Id. at *25. The court disagreed and distinguished Reed, concluding that, unlike the statute at issue in Reed, the TCPA is not “riddled with exceptions,” and neither exception allows for “unlimited proliferation of any type of call.” Id. at *25-26. Rather, it found that Congress had “carefully balanced the interests in health and safety of consumers with the interests in protecting privacy and determined the call exception was carefully tailored to address both interests.” Id. at *26. It also found that the government debt exception does not present a First Amendment problem because “it merely carves out an exception for something the federal government is already entitled to do.” Id. at *27.

Facebook also argued that the exceptions were overly-inclusive because they “sweep[] in speech that facilitates social connections.” The court rejected this argument because, according to the court, the TPCA does not restrict individuals from receiving any content they want to receive. Id. at *28.

Finally, the court found that Facebook’s proposed alternatives (for example time-of-day limitations, mandatory disclosure of the caller’s identity, and do-not-call lists) were not a less restrictive means of furthering the government interest at issue (protecting residential privacy). Specifically, the court concluded that the time-of-day limitations would not achieve the same objectives because they would “designate a time for intrusive phone calls” and the mandatory disclosure and do-not-call list requirements would “not prevent the privacy intrusion from the phone call in the first place.” Id. at *29-31.

The court also rejected Facebook’s challenge to the sufficiency of Plaintiff’s allegations that Facebook used an ATDS to send the alleged text message, id. at *8-12, and its argument that the text messages were the product of human intervention triggered by Plaintiff’s decision to sign up for Facebook, link his telephone number to his account, and befriend the individual about whom he received the birthday reminder.  Id. at *12-14. Finally, the court determined that it need not resolve whether the Plaintiff had provided consent to receive the text message at the motion to dismiss stage. Id. at *14-15.

Although the final outcome is disappointing, the court’s recognition that the TCPA should be subjected to strict scrutiny is a notable development for those challenging the TCPA on First Amendment grounds. Unlike past unsuccessful First Amendment challenges to the TCPA, which arose mostly in the narrow context of “junk fax” cases where the rules are different, the finding that strict scrutiny applies to the TCPA provides additional fodder for First Amendment challenges to restrictions on calls and texts made in connection with political campaigns.