“Today is Jim Stewart’s birthday. Reply to post a wish on his Timeline or reply with 1 to post ‘Happy Birthday!’” That’s the text, from Facebook to Colin Brickman, that launched a legal battle between Brickman and the social-media giant.
You see, Brickman had opted out of receiving texts from Facebook via the platform’s notification settings. In response to the unwanted birthday reminder, Brickman filed a class-action lawsuit against Facebook, representing “all individuals who received one or more Birthday Announcement Texts from [Facebook] to a cell phone through the use of an automated telephone dialing system at any time without their consent.”
The suit, filed in the U.S. District Court for the Northern District of California, argues that Facebook’s sending unauthorized text messages is a violation of the federal Telephone Communications Privacy Act (TCPA). “A valid TCPA claim requires plaintiff to allege (1) a defendant called a cellular telephone number; (2) using an automated telephone dialing system (‘ATDS’); and (3) without the recipient’s prior express consent,” explains lawyer Jack Greiner in the Cincinnati Enquirer. “A text message is a ‘call’ within the meaning of the TCPA.”
In its defense, Facebook alleged that the TCPA in unconstitutional. Citing the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert, Facebook attorneys argued that the TCPA’s allowed exceptions—for emergency communications and debt collectors—render it an umpermissable, content-based restriction on speech. But the judge, while agreeing that the TCPA’s restrictions are content-based (and thus subject to strict scrutiny, legally speaking), found that the law passed constitutional muster nonetheless.
The case will go forward with Facebook defending its text messages on technical grounds; it argues that the texts were not automated because Brickman and others who received them had supplied Facebook with their phone numbers. But, for now, Facebook’s argument that it has a First Amendment right to send people text messages against their will has been rejected.
The 9th U.S. Circuit Court of Appeals has twice found the TCPA to be constitutional in previous cases—Moser v. Federal Communications Commission (1995) and Campbell-Ewald v. Gomez (2016)—the Department of Justice pointed out in a memorandum in support of TCPA’s constitutionality. In the latter case, the 9th Circuit rejected the idea that the government’s interest with the law “only extends to the protection of residential privacy, and that therefore the statute is not narrowly tailored to the extent that it applies to cellular text messages.”
“There is no evidence that the government’s interest in privacy ends at home,” ruled the 9th circuit in Campbell-Ewald. Furthermore, “to whatever extent the government’s significant interest lies exclusively in residential privacy, the nature of cell phones renders the restriction of unsolicited text messaging all the more necessary to ensure that privacy.”