Brickman v. Facebook, Inc.
230 F. Supp. 3d 1036
N.D. Cal.2017Background
- Plaintiff Matthew Brickman alleges Facebook sent him an unsolicited automated “Birthday Announcement” text to his cell phone despite his account settings revoking text-message consent; he filed a putative class action under the Telephone Consumer Protection Act (TCPA).
- Brickman alleges Facebook’s software automatically: identifies users with birthdays, selects their friends, pulls friends’ phone numbers, inserts names into a template, queues, and sends texts without human intervention.
- Facebook moved to dismiss under Rule 12(b)(6), arguing the message was targeted (not sent by an ATDS), Brickman consented, and the TCPA is unconstitutional under the First Amendment (facial and as-applied challenges).
- The United States intervened to defend the TCPA’s constitutionality; the Court requested supplemental briefing on whether the TCPA and its exceptions survive strict scrutiny.
- The Court accepted Brickman’s factual allegations as true for the motion to dismiss and denied Facebook’s motion: (1) Brickman plausibly alleged use of an ATDS and lack of consent; (2) the TCPA (and its emergency and government-debt exceptions) are content-based under Reed but survive strict scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Facebook’s birthday text was a “call” made using an ATDS under the TCPA | Brickman: Facebook’s software has capacity to store/produce numbers and send texts without human intervention; alleges specific automated steps | Facebook: Content, context, and uniqueness of message show targeted, human-triggered communication (not ATDS) | Court: Plausible ATDS claim; detailed allegations of automated processes survive 12(b)(6) dismissal |
| Whether Brickman consented to receive the text | Brickman: Account settings explicitly revoked receipt of texts; no prior express consent | Facebook: By providing phone number and linking to account, Brickman implicitly consented | Court: Accepting Brickman’s allegations as true at this stage, no consent found for motion to dismiss |
| Whether the TCPA (and its exceptions) is content-based in violation of the First Amendment (facial challenge) | Brickman & U.S.: TCPA is content-neutral; exceptions are situation-based or relationship-based | Facebook: Reed requires strict scrutiny because TCPA contains exceptions that depend on message content (e.g., emergency, government-debt; FCC exemptions) | Court: Emergency and government-debt exceptions are content-based and thus subject to strict scrutiny; FCC-authorized exemption not inherently content-based |
| Whether the TCPA survives strict scrutiny (narrow tailoring / less-restrictive alternatives) | Brickman & U.S.: Protecting residential privacy is compelling; TCPA is narrowly tailored and effective; alternatives are less effective | Facebook: TCPA is underinclusive/overinclusive and less-restrictive alternatives (time limits, disclosures, DNC lists) would suffice | Court: TCPA serves a compelling interest in residential privacy and is narrowly tailored; proposed alternatives are not shown to be as effective — statute survives strict scrutiny |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading standard: plausible claim required)
- Ashcroft v. Iqbal, 556 U.S. 662 (legal conclusions not entitled to factual presumption)
- Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009) (text messages are "calls" and ATDS definition interpretation)
- Meyer v. Portfolio Recovery Assocs., 707 F.3d 1036 (9th Cir. 2012) (ATDS capacity-focus standard)
- Pac. Bell v. Pac-West Telecomm, 325 F.3d 1114 (9th Cir. 2003) (deference to FCC interpretations unless invalidated)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based speech regulation triggers strict scrutiny)
- Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (strict scrutiny is demanding but not fatal; underinclusiveness context)
- Carey v. Brown, 447 U.S. 455 (state interest in protecting home privacy is high)
- Frisby v. Schultz, 487 U.S. 474 (protection of unwilling listeners in the home)
- Madsen v. Women’s Health Ctr., 512 U.S. 753 (content-neutrality and tailoring in speech restrictions)
- Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (sovereign immunity and application to TCPA enforcement)
- Pleasant Grove City v. Summum, 555 U.S. 460 (government speech immunity from First Amendment challenge)
- INS v. Chadha, 462 U.S. 919 (severability of statute provisions)