Attorney: Ruling in birthday reminder case against Facebook a blow to free speech

By Karen Kidd | Feb 22, 2017

LOS ANGELES (Legal Newsline) – A recent decision by a federal court in California not to dismiss a Telephone Consumer Protection Act case against Facebook is a blow to First Amendment freedom, a TCPA defense attorney based in Costa Mesa said during a recent interview.

"The ruling allows TCPA lawsuits to continue at a feverish clip despite the ambiguity of the statute and its potential chilling effect on speech," Eric Troutman, a partner with Dorsey & Whitney, said during a Legal Newsline email interview.

On Jan. 27, the U.S. District Court for California's Northern District denied Facebook's motion to dismiss a putative class action, Brickman v. Facebook. The court reasoned that the allegations plaintiff, Colin Brickman of Florida, made were plausible. Brickman alleges Facebook violated federal law when it sent unauthorized text messages about the birthdays of his Facebook friends.

Brickman maintains that Facebook needs permission to send those texts and it never asked for his.

The class action is asking for up to $1,500 per text on behalf of Brickman and other Facebook users. That could possibly lead to billions of dollars should the class action go through, Troutman said in a recent article he wrote about the case.

In its motion to dismiss, Facebook claimed Brickman did consent to receive the texts. The court, in denying Facebook's motion, said that the motion to dismiss was not the time to consider whether there was consent and that, for now, the court will treat it as if Brickman did not provide consent to receive text messages from Facebook.

That decision seems to conflict with a prior ruling by the same court on March 24 that Facebook's text messages do not fall under the TCPA. On that day in Duguid et al. v. Facebook, the court granted Facebook's motion to dismiss after Facebook claimed applying TCPA provisions to its text messages would be a clear violation of the First Amendment of the U.S. Constitution.

In that motion, Facebook maintained its noncommercial speech claims more protection under the Constitution than do commercial calls, a claim the plaintiff in that case denied.

The conflicting Northern District rulings aside, Troutman said there are other court rulings about the First Amendment and the TCPA to consider. For instance, the U.S. Court of Appeals for the Ninth Circuit has often acted to protect free speech, but it has also upheld the TCPA over a First Amendment challenge.

"In doing so, however, it previously assumed that that the statute was content-neutral and applied only intermediate scrutiny," Troutman said. "The district court found that the TCPA contains content-specific exemptions that favor certain speakers and, therefore, applied strict scrutiny.

"If the Ninth Circuit agrees with the district court that strict scrutiny is the proper standard of review, it would be very difficult for the appellate court to uphold the statute. The TCPA is vague and has been interpreted so broadly by the FCC that it plainly prohibits more speech than necessary to achieve its objectives."

An appeal would pose a real challenge for the Ninth Circuit, Troutman said.

"On the one hand, the Court would likely not want to strike down a statute that has already weathered so many constitutional storms and has become a fixture in federal courthouses," he said.

"On the other hand, upholding the statute would seemingly necessitate the application of a watered down version of strict scrutiny - not the sort of precedent the 9th Circuit would want to create at a time when constitutional free speech protections seem more important than ever."

Troutman declined to speculate about a possible Facebook appeal in the Brickman case.

"I can’t give a legal opinion on something as specific as whether a party should appeal an adverse ruling," he said.

"But I will say the district court’s finding that the TCPA is 'narrowly tailored' to accomplish its objectives is suspect and the court’s analysis of the issue was not particularly rigorous, which is discordant with strict scrutiny review."

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