• by Wendy Davis  @wendyndavis, January 31, 2017

Facebook can't shake a lawsuit accusing it of violating a consumer protection law by sending users messages about their friends' birthdays.

In a ruling issued late last week, U.S. District Court Judge Thelton Henderson in San Francisco rejected Facebook's bid to dismiss the case on free speech grounds.

The ruling grew out of a 2016 class-action complaint filed by Florida resident Colin Brickman, who accused Facebook of violating the Telephone Consumer Protection Act, which prohibits companies from robo-texting people without their permission.

Facebook asked Thelton to dismiss the case for several reasons, including that it has a constitutional right to send the texts. "Messages about a person’s birthday undoubtedly constitute speech entitled to First Amendment protection," Facebook argued in papers filed with Henderson in August.

The social networking service also contended that the Federal Communications Commission's decision to exempt some type of messages -- including emergency notices and texts sent in order to collect a debt owed to the federal government -- shows that the Telephone Consumer Protection Act isn't being applied even-handedly.

The Obama administration weighed in against Facebook on that point. "The Act prohibits one narrow category of calls (including text messages) to wireless numbers: those made using an automatic telephone dialing system or an artificial or pre-recorded voice and directed at a cell phone belonging to a recipient who has not previously consented to receive the calls," the government wrote in papers filed last year.

Siding against Facebook, Henderson ruled that the law is constitutional because it serves a "compelling government interest in promoting residential privacy," and is neither too broad or too narrow to accomplish that goal.

"The TCPA does not restrict individuals from receiving any content they want to receive -- speech that would otherwise be prohibited by the TCPA is immediately removed from the purview of the statute once express consent is provided," Henderson wrote. "If individuals want to receive speech from Facebook that facilitates social connections, they are not prohibited from doing so."

The social networking service is currently facing at least two other lawsuits alleging violations of the robo-texting law. In both, Facebook allegedly sent people SMS messages after they obtained reassigned cell phone numbers.