• by Wendy Davis  @wendyndavis, May 10, 2017

A law that prohibits companies from sending robotexts to users without their consent violates Facebook's free speech rights, the company says in new court papers.

The Telephone Consumer Protection Act "runs headlong into the First Amendment," Facebook says in a petition asking the 9th Circuit Court of Appeals to immediately review a trial judge's refusal to dismiss a lawsuit accusing the company of violating the law.

The legal battle dates to 2016, when Florida resident Colin Brickman alleged in a class-action complaint that Facebook's birthday texts violate the Telephone Consumer Protection Act, which prohibits companies from robo-texting people without their permission.

Brickman alleged that he gave Facebook his cell phone number, but told the company he didn't want to receive text messages. He said in his complaint that he nonetheless received a text from Facebook informing him about a friend's birthday, and inviting him to either post a message on his friend's timeline, or to press "1" on his keypad to post "Happy Birthday!"

Facebook unsuccessfully asked U.S. District Court Judge Thelton Henderson in the Northern District of California to dismiss the case for several reasons, including that it has a free speech right to send the texts. The social networking service argued that messages about someone's birthday "undoubtedly constitute speech entitled to First Amendment protection."

The company also said that a decision by the Federal Communications Commission to exempt some types of messages from the law -- 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 applied even-handedly.

Henderson rejected that argument, ruling that the Telephone Consumer Protection Act is constitutional because it serves a "compelling government interest in promoting residential privacy."

Several weeks ago, Henderson authorized Facebook to seek immediate review of that order by the 9th Circuit.

This week, Facebook filed papers asking the appellate court to accept the case.

"The TCPA is a content-based restriction of speech," Facebook argues. "It prohibits using an automated telephone dialing system to call a cellular telephone number, but exempts certain categories of calls based on the content of the speaker’s message," the company says. The categories include speech about government debt, emergencies, and "speech that the FCC decides will promote privacy," Facebook says.

The company also argues that its texting platform isn't an automated dialer system.

Brickman isn't the only one to sue Facebook for allegedly violating the robotexting law. The company also was sued by two other people who said they were sent SMS messages after obtaining reassigned cell phone numbers.

A trial judge dismissed one of those complaints, but a different judge allowed the other one to proceed. The consumer whose lawsuit was dismissed has already initiated an appeal to the 9th Circuit; Facebook was recently granted permission to seek an appeal in the other one.