Obama Administration Says Text-Spam Law Is Constitutional

Earlier this year, Florida resident Colin Brickman accused Facebook of violating a consumer protection law by sending him unwanted text messages about his friends' birthdays.

Brickman alleged in a class-action complaint that Facebook was violating the Telephone Consumer Protection Act, which prohibits companies from texting people without their express permission.

Facebook recently asked U.S. District Court Judge Thelton Henderson in San Francisco to dismiss the lawsuit for a variety of reasons, including that it has a free speech 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 contends 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 law isn't being applied even-handedly.

Those exceptions "allow the government to pick and choose what speech is desirable and what speech is not," Facebook asserts.

This week, the Obama administration asked Henderson to reject Facebook's challenge to the law.

"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 adds. "The statute does not differentiate among calls depending on whether they are ideological, political, or commercial in nature."

If the judge accepts Facebook's argument, the decision could have ramifications for much of Silicon Valley. In the last several years, consumers throughout the country have sued a host of companies, including Twitter, Uber and Yahoo, for violating the text-spam law.

Facebook itself is facing at least two  other lawsuits alleging violations of the statute; in both cases, Facebook allegedly sent people SMS messages after they obtained reassigned cell phone numbers. Facebook has already mounted a free-speech challenge to the text-spam law in one of those cases; the judge presiding over that matter hasn't yet ruled on Facebook's argument that the law is unconstitutional.

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