By Eric Troutman, Partner, Dorsey & Whitney Facebook finds itself in a real dog fight over, of all things, the legality of its birthday alert texts, and—in a strange twist—the fate of free speech in this country may also hang in the balance.Setting the stage for any non-Facebook users out there—am I the only one left?—Facebook is a social media platform used by roughly 1/3 of the planet on a daily basis. Facebook automatically sends text message alerts to its billions of users advising them of their friends and colleague’s birthdays. This feature seems innocuous enough, perhaps even useful for those of us that forget things constantly. Nonetheless, a great many folks found these messages annoying. (Google: “Facebook birthday alert texts” and all you get is sites offering hints to turn them off.)A San Francisco resident named Colin R. Brickman has decided to do something about it. He has brought a class action lawsuit against Facebook in federal court on behalf of everyone who received one of these birthday text alerts without express consent. The chances are good, therefore, that you gentle reader are a member of this class and didn’t even know it. And before you start snickering at the idea that someone is suing Facebook in your name, understand the lawsuit has legs and it could cost Facebook billions of dollars if it is found liable to the class for, of all things, invading its users’ privacy by sending alert text messages[1].Now before you point out something logical—like social media platforms are supposed to send pointless alerts to your phone aren’t they?; or since when does a text invade someone’s privacy?; or how can sending a text message be conduct that is highly-regulated by the federal government?; or how can I be suing Facebook and not know it?—let me introduce you to the Telephone Consumer Protection Act (“TCPA”).The TCPA is this terrible little statute designed to do something really really important—prevent telemarketers from bombarding your cell phone with random-fire messages. You may remember sometime in the early nineties when curise ship companies would fire off staticky pre-recorded sales pitches to everyone in town during the dinner hour using a sequential dialing device. Well people hated those messages and Congress did something about it. Specifically, it enacted the TCPA—a federal law making it very illegal to use a device that generates numbers randomly or sequentially and then dials them. So illegal, in fact, that the statute worked and no one uses random-fire dialers anymore. Great.So why is the TCPA so terrible? It is really really vague and really really out of date.  So much so that no one really knows what conduct it covers anymore—apparently not even Facebook and its army of awesome lawyers, but more on that in a second.The Federal Communications Commission (“FCC”) has caused most of the confusion by issuing conflicting and confusing interpretations of the statute that keep broadening its reach. The FCC took these actions in response to the receipt of complaints from consumers about automated calls that weren’t being randomly dialed but that were annoying anyway. The FCC decided that these calls were bad and banned them. All of them.To do that, the FCC interpreted (read: re-wrote) the TCPA to ban calls placed by any device that has the potential capacity to place calls without human intervention; not just those that actually dial randomly or sequentially-dialed numbers. In other words, the FCC has found that equipment is governed by the TCPA if it might be feasibly modified to be governed by the TCPA, which is why nobody knows what the statute actually covers anymore.You might be wondering what any of this has to do with Mr. Brickman, Facebook or free speech and we’re getting there, I promise. But first you need to know two more things about the TCPA. First, it applies to text messages—even though they didn’t exist in 1991 when the TCPA was passed—and not just phone calls. Second, people can bring lawsuits alleging a violation of the TCPA and collect at least $500.00 per call if they win. And if they bring a class action lawsuit they can sue on behalf of anyone else who has ever received a similar call and collect millions or billions of dollars—for the harm suffered by the class, of course.So that brings us to Facebook. Just last year another enterprising—ahem, harmed— Facebook user brought a class action suit contending that Facebook’s alert texts violated the TCPA. The suit characteristically sought billions of dollars in damages on behalf of a huge class of people that received similar text messages. The case was promptly dismissed by the Court, however, on the grounds that the messages were not sent “randomly” enough to qualify under the TCPA. (That case was  Duguid v. Facebook, Inc., 2016 WL 1169365, at *5-6 (N.D.Cal., 2016) if you’re interested.)But just last week, another court disagreed and allowed an eerily similar case to survive Facebook’s effort to throw it out of court—and Mr. Brickman is the big winner. At least for now.In Mr. Brickman’s case a Northern District of California federal judge decided that—although it was a “close call”—Mr. Brickman’s lawyers had alleged enough facts for the Court to plausibly conclude Facebook used an automated telephone dialing system to send the birthday texts at issue as the FCC’s has defined automated dialers. Translation: Mr. Brickman’s multi-billion dollar lawsuit against Facebook can move forward in court.To be sure, this victory is quite preliminary and the case still has years of legal wrangling ahead, but this ruling is still very interesting for a number of reasons. First, it must be disappointing for Facebook to have one judge rule that its alerts are not covered by the TCPA only to have another judge a few doors down rule otherwise less than a year later. This inconsistency underscores the havoc called by the FCC’s latest TCPA rulings and the struggles faced by courts and industry alike to determine the scope of the statute.But something at least potentially more important than billions of dollars is also at stake here.  In the back of your head you might be wondering whether the TCPA is constitutional given that it so clearly prevents speech and the First Amendment rather explicitly states that Congress is not allowed to do that. Well it is actually a very tricky legal question—as constitutional matters always are—and the Brickman case offers a fascinating first-time-ever twist on the issue. The Court applied the highest level of scrutiny possible to the TCPA (strict scrutiny) and found that the statute was constitutional anyway.Why is this so unusual? In order for a statute to survive strict scrutiny, the government must demonstrate that the statute is “narrowly” tailored to a “compelling” governmental interest and, in the free speech context, that the regulation does not burden more speech than necessary. This is an exceedingly high standard and a very difficult one to meet. 99% of the time, therefore, the outcome of the constitutional question is determined by the level of scrutiny applied by the Court. If a court applies strict scrutiny the statute is as good as dead—few statutes are ever written with the rigor and discipline to be “narrowly tailoted” to their purpose.The Brickman case is the first time that any court has ever applied strict scrutiny to the TCPA.[2] Given that no one even knows what the TCPA covers anymore it seemed evident to most legal observers—including me—that the TCPA could never survive such heightened scrutiny; the TCPA isn’t “narrowly tailored” to anything, much less to a compelling governmental interest. Far better crafted statutes that restrict far less speech have been struck down just to prevent a potential chill on free speech. The TCPA categorically prohibits huge swatchs of speech and imposes the potential for billions of dollars in damages on the speaker if the law is violated. It has to be unconstitutional, right?Wrong—according to the court in Mr. Brickman’s case at least—and for a very unexpected reason. The court held, in essence, that the government can restrict all speech to you that you don’t specifically ask for in the name of protecting your privacy.  Weird right? Because the TCPA allows people to consent to receive calls, the Court reasoned, it is a sufficiently narrow restriction on speech. But for decades the law of free speech has been that the government cannot limit private speech to residences in the name of privacy; even unwanted speech is permitted unless a recipient expressly opt-out. See Martin v. Struthers, 319 U.S. 141 (1943).As such the Brickman decision recognizes the government possesses awesome new powers to regulate free speech that no one thought existed. And, much like the scope of the TCPA itself, the scope of these powers is entirely unclear.What is clear, however, is that Facebook and free speech lovers alike had a very bad day in Court last week. So did your chances of remembering your friend’s birthday.

 [author]About the Author: Eric Troutman is a partner at the international law firm Dorsey & Whitney and  is one of the country’s prominent Telephone Consumer Protection Act (TCPA) defense attorneys, having served as lead defense counsel on over 30 nationwide TCPA class actions and having handled hundreds of individual TCPA cases. He also “wrote the book” on TCPA defense, having co-authored the nation’s first comprehensive practice guide on the subject. In addition, he has helped spearhead the banking industry’s push for TCPA clarity before the Federal Communications Commission and has assisted on numerous appeals addressing hot-button TCPA issues. [/author]