Just when we thought Facebook was safe from the TCPA—remember Duguid—Judge Henderson found otherwise. In Colin Brickman, v. Facebook, 2017 WL 386238 (N.D. Cal. Jan. 27, 2017), the Court denied Facebook’s motion to dismiss, determining that the Plaintiff had plausibly alleged the use of an ATDS in connection with birthday text alerts that were sent to his phone. While Facebook argued that the Plaintiff consented to receive the texts, the Court was not inclined to consider that issue at the pleadings stage. So this class action of Facebook birthday text survivors moves forward with billions of dollars hanging in the balance.

Far more interesting, however, are the constitutional dimensions here. The Court dutifully followed the Supreme Court’s new ruling in Reed—to the effect that content neutrality actually requires content neutrality—and correctly applied strict scrutiny to the TCPA. (This is the first time, to my knowledge at least, that the TCPA has ever been subjected to strict scrutiny review.) Unfortunately—perhaps even shockingly—the Court determined that the TCPA survives strict scrutiny. The analysis is thin and unsatisfying. The Court first concludes that preventing invasions of privacy from unwanted speech is a compelling governmental interest. Ok, fine. But the Court’s determination that the TCPA is “narrowly tailored” to accomplish that end  turns solely on the fact that consumers can give express consent to avoid the reach of the statute. There’s no mention of the fact that a consumer might want speech he has not expressly consented to receive, or that not all speech received without prior consent is likely to invade anyone’s privacy (a birthday alert received at a TGI Fridays is surely the least intrusive way a diner may become aware of a birthday during his meal.)  There’s also no mention of Martin v. Struthers, 319 U.S. 141 (1943), a Supreme Court decision that obliterates the uninvited-speech-can-be-regulated line of reasoning.

And so the TCPA freight train rumbles along…