In a motion filed in a putative class action pending in California, Facebook, Inc. seeks to dismiss claims under the Telephone Consumer Protection Act, arguing, among other things, that the TCPA as applied to Facebook’s “status update” text messages is unconstitutional.  The plaintiff in Holt v. Facebook, Inc., No. 3:16-cv-02266-JST (N.D. Cal.), alleges that Facebook violated the TCPA (and California law) by sending unsolicited text messages to cellular telephone subscribers, particularly in instances where the number has been reassigned and the messages from Facebook are intended for the prior owner.  Holt alleges that shortly after registering a new cellular telephone number, she began receiving automated text messages from Facebook, asking her to post a status update or giving her glimpses into status updates of “her” friends.  She contends that Facebook sends such messages regularly, without consent and in violation of the TCPA, to consumers nationwide. 

In a motion filed on July 1, 2016, Facebook moved to dismiss the Complaint on a number of grounds.  Chief among those was Facebook’s contention that the TCPA, as applied to Facebook’s status update messages as alleged in the Complaint, is unconstitutional.  Facebook argues that status updates constitute speech entitled to First Amendment protection and that the TCPA violates those protections.  More specifically, Facebook contends that its status update messages are noncommercial speech, subject to strict scrutiny and a presumption that any content-based restriction is unconstitutional.  Facebook argues that because the TCPA is “riddled with exceptions” that effectively pick and choose what speech is permissible, it is not a neutral content-based restriction.  Under the strict scrutiny framework, Facebook argues, the statute is unconstitutional, because it targets only one type of speech in an overinclusive and indefensible way. 

On October 17, the United States Federal Government intervened in the case and filed a brief in support of the constitutionality of the TCPA.  In addition to a number of procedural points, the government argues that the Ninth Circuit has twice considered—and rejected—constitutional challenges to the TCPA, either with respect to the particular provisions that Facebook now attacks or others like them.  The government argues that there has been no change in the law to justify a departure from these prior holdings and in decisions from courts outside of the Ninth Circuit.  The government also challenges Facebook’s contention that its text messages are not commercial speech, arguing that the messages explicitly invite recipients to interact with the Facebook platform.  Finally, the government argues that even if strict scrutiny applies, the TCPA survives that analysis because it furthers a compelling government interest in protecting consumers from harassing communications and is narrowly tailored to achieve those aims. 

In its response filed on November 1, Facebook argues that the Supreme Court’s recent decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), changed First Amendment jurisprudence and, under its holding, Facebook’s messages are not commercial speech.  From that standard, Facebook argues, strict scrutiny compels the conclusion that the TCPA as applied to Facebook’s activities is unconstitutionally restrictive. 

The court has yet to issue an opinion with respect to Facebook’s challenge, which is now fully briefed, but the outcome could have broad implications for the scope of the TCPA.