DOJ Defends Constitutionality of TCPA

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By Joseph Wright
Dec. 14 — A federal telemarketing statute's emergency calls exception doesn't violate the First Amendment, the U.S. Department of Justice told a federal district court Dec. 11 (Duguid v. Facebook Inc., N.D. Cal., No. 3:15-cv-00985, intervenor's brief filed, 12/11/15).

The DOJ has the right to intervene in private litigation to brief the court on constitutional questions. In a brief filed in the U.S. District Court for the Northern District of California, the DOJ argued that the emergency calls exception in the Telephone Consumer Protection Act is a content-neutral speech regulation and that the messages at issue in this litigation were commercial speech.

Either argument would allow the district court to apply a lower level of scrutiny to the TCPA's emergency calls provision, making the law far more likely to survive First Amendment review.

The TCPA, 47 U.S.C. § 227, prohibits using an autodialer to make phone calls, including text messages, to a mobile device without recipients' prior consent. But it also exempts calls made for emergency purposes.

Login Notifications Sent
Plaintiff Noah Duguid brought TCPA claims against Facebook for sending notifications that someone had logged into his Facebook account from a new browser. Duguid claimed he doesn't have a Facebook account but received notifications anyway.

Facebook moved to dismiss the claim. In addition to denying that its notifications fell within the TCPA, Facebook argued that the TCPA violates the First Amendment as applied to the notifications. The “emergency purposes” exclusion from the TCPA is a content-based restriction on noncommercial speech, it argued.

Reed v. Town of Gilbert Changes Standard?
Although similar arguments have been rebuffed in cases such as Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) (19 ECLR 1207, 9/24/14), Facebook argued that the U.S. Supreme Court's decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (U.S. 2015) changed the standard for addressing content-neutral speech regulations. In Town of Gilbert, the Supreme Court overturned an ordinance creating various sign rules for a town based on different categories of content.

Robert Corn-Revere, a partner at Davis Wright Tremaine in Washington, told Bloomberg BNA Dec. 14 that it isn't clear how that holding applies in other contexts.

“I think we're still waiting to see the full implications of Reed v. Town of Gilbert,” Corn-Revere said. The key holding in that case was that a benign purpose is irrelevant if a statute facially discriminates based on content.
A statute may still provide an exception for a type of content that doesn't implicate the same concerns the statute addresses without raising First Amendment concerns, the DOJ said.

The regulation at issue in Town of Gilbert created 23 different categories of signs. The TCPA contains a single exception for emergency calls. That emergency-calls exception doesn't implicate the same privacy interests that other telemarketing calls raise because consumers have a reason to want that information, the DOJ contended.
“Where significant government interests permit a blanket prohibition, the Supreme Court has noted, it is not content-based discrimination to exempt from that prohibition a narrow band of speech that is unrelated to the significant government interest at stake,” the DOJ argued. “That is exactly what has occurred in the context of the TCPA.”

Messages Were Commercial Speech
The DOJ also disagreed with Facebook's argument that the messages, which allegedly were sent for user security purposes, weren't commercial speech.

Facebook's most prominent product is its user accounts, the DOJ argued, and communications about those accounts are commercial in nature. Speech made for the purpose of protecting existing customers is commercial because of its intent to keep customers using the product.

The court must also address Facebook's other grounds for dismissal before considering constitutional issues, the DOJ said.

The court will hear Facebook's motion to dismiss Jan. 7, 2016.

Kirkland & Ellis LLP represents Facebook. Lemberg Law LLC represents Duguid.
To contact the reporter on this story: Joseph Wright in Washington at
To contact the editor responsible for this story: Thomas O'Toole at

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