Case 3:16-cv JST Document 55 Filed 11/01/16 Page 1 of 24

Transcription

1 Case :-cv-0-jst Document Filed /0/ Page of 0 Andrew B. Clubok (pro hac vice) KIRKLAND & ELLIS LLP 0 Lexington Avenue New York, NY 00 Tel: () -00 Fax: () -0 andrew.clubok@kirkland.com Susan E. Engel (pro hac vice) Devin S. Anderson (pro hac vice) KIRKLAND & ELLIS LLP Fifteenth Street, NW Washington, DC 000 Tel: (0) -000 Fax: (0) susan.engel@kirkland.com devin.anderson@kirkland.com Elizabeth L. Deeley (SBN 0) KIRKLAND & ELLIS LLP California Street San Francisco, CA 0 Tel: () -00 Fax: () elizabeth.deeley@kirkland.com 0 Attorneys for Defendant Facebook, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CHRISTINE HOLT, individually and on behalf of all others similarly situated, v. Plaintiff, FACEBOOK, INC., Defendant. THE UNITED STATES CASE NO.: :-CV-0-JST FACEBOOK, INC. S RESPONSE TO THE BRIEF OF THE UNITED STATES AS INTERVENOR Am. Compl. Filed: July, 0 Judge: Hon. Jon S. Tigar Hearing Date: December, 0 Time: :00 pm Courtroom: Courtroom, th Floor CASE NO. :-CV-0-JST

2 Case :-cv-0-jst Document Filed /0/ Page of TABLE OF CONTENTS 0 INTRODUCTION... ARGUMENT... I. Under Reed v. Town of Gilbert, the TCPA is Content-Based.... Page A. Reed Changed the Law on Content-Based Discrimination... B. The TCPA s Exceptions Make It a Content-Based Restriction of Speech..... The Ninth Circuit Has Not Addressed Whether the TCPA s Exceptions Render It Content-Based..... The TCPA s Exceptions Are Content-Based.... II. Facebook s Status Update Messages Were Not Commercial Speech.... III. The TCPA Does Not Survive Strict Scrutiny.... CONCLUSION... 0 THE UNITED STATES i CASE NO. :-CV-0-JST

3 Case :-cv-0-jst Document Filed /0/ Page of 0 0 Cases TABLE OF AUTHORITIES Page(s) Abbas v. Selling Source, LLC, No. 0-CV-, 00 WL (N.D. Ill. Dec., 00)... B.F. Goodrich Co. v. Nw. Indus., Inc., F.d (d Cir. 0)... Bolger v. Youngs Drug Prods. Corp., U.S. 0 ()...,, Cache Valley Elec. Co. v. State of Utah Dep t of Transp. F.d (0th Cir. )..., 0 Cahaly v. Larosa, F.d (th Cir. 0)..., Carey v. Brown, U.S. (0)...0 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n of N.Y., U.S. (0)... Cent. Radio Co. Inc. v. City of Norfolk, F.d (th Cir. 0)... Citizens for Free Speech, LLC v. Cty. of Alameda, F. Supp. d (N.D. Cal. 0)..., Dana s R.R. Supply v. Attorney Gen., 0 F.d (th Cir. 0)... Dex Media W., Inc. v. City of Seattle, F.d (th Cir. 0)... Foti v. City of Menlo Park, F.d (th Cir. )... Free Speech Coal., Inc. v. Attorney Gen., F.d (d Cir. 0)... Gomez v. Campbell-Ewald Co., F.d (th Cir. 0)...,,, Gresham v. Rutledge, No. :CV00 JLH, 0 WL 00 (E.D. Ark. July, 0)..., THE UNITED STATES ii CASE NO. :-CV-0-JST

4 Case :-cv-0-jst Document Filed /0/ Page of 0 0 Hill v. Colorado, 0 U.S. 0 (000)..., 0, Hunt v. City of Los Angeles, F.d 0 (th Cir. 0)..., Joffe v. Acacia Mortg. Corp., P.d (Ariz. Ct. App. 00)... L.A. Taxi Coop., Inc. v. Uber Techs., Inc. F. Supp. d (N.D. Cal. 0)... Mais v. Gulf Coast Collection Bureau, Inc., F.d 0 (th Cir. 0)... Maryland v. Universal Elections, Inc., F.d 0 (th Cir. 0)... Matter of Extradition of Lang 0 F. Supp. (C.D. Cal. )... McCullen v. Coakley, S. Ct. (0)... Moser v. FCC, F.d 0 (th Cir. )...,,, Nadarajah v. Gonzales, F.d 0 (th Cir. 00)... NLRB v. Teamsters Union Local No. 0, Int l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., No. -00, 0 WL (th Cir. Aug., 0)... Norton v. City of Springfield., 0 F.d (th Cir. 0)... Perkins v. LinkedIn Corp., F. Supp. d (N.D. Cal. 0)... Pittsburgh Press Co. v. Human Relations Comm n, U.S. ()... Pursuing America s Greatness v. FEC, F.d 00 (D.C. Cir. 0)... R.A.V. v. St. Paul, 0 U.S. ()... THE UNITED STATES iii CASE NO. :-CV-0-JST

5 Case :-cv-0-jst Document Filed /0/ Page of 0 0 Reed v. Town of Gilbert, S. Ct. (0)...,,,,,,, 0,, Reed v. Town of Gilbert, 0 F.d 0 (th Cir. 0)... Reno v. Am. Civil Liberties Union, U.S. ()..., Roberts v. Medco Health Sols., Inc., No. : CV CDP, 0 WL 0 (E.D. Mo. July, 0)... Strickler v. Bijora, Inc., No. CV, 0 WL 0 (N.D. Ill. Oct. 0, 0)... United States v. Playboy Entm t Grp., Inc., U.S. 0 (000)..., United States v. Swisher, F.d (th Cir. 0)... Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., U.S. ()... Wreyford v. Citizens for Transp. Mobility, Inc., F. Supp. d (N.D. Ga. 0)... Constitutional Provisions U.S. Const. Amend. I...,,,,,,,, Statutes and Regulations U.S.C.... U.S.C. (b)()(a)(iii)..., U.S.C. (b)()(a),(b)... U.S.C. (b)()(c)... U.S.C. (b)()(b)(ii)(i)... Bipartisan Budget Act of 0 0(a), Pub. L. No. -, Stat.... Administrative Decisions In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of, FCC Rcd. ()..., THE UNITED STATES iv CASE NO. :-CV-0-JST

6 Case :-cv-0-jst Document Filed /0/ Page of In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of, 0 FCC Rcd. (0) THE UNITED STATES v CASE NO. :-CV-0-JST

7 Case :-cv-0-jst Document Filed /0/ Page of 0 0 INTRODUCTION The Government agrees that this Court should first address Facebook s nonconstitutional argument that the TCPA does not apply to the alleged status update messages. Gov t Br. (Dkt. No. ). Because Plaintiff has not plausibly alleged that these responsive, targeted text messages were sent using an ATDS, the Court should construe the statute to avoid reaching the First Amendment question. Nevertheless, if the Court adopts Plaintiff s broad vision of the TCPA, then it must reach and resolve whether the TCPA violates the First Amendment on its face and as applied to Facebook s communications with people who use its service. The answer is yes under a straightforward application of the Supreme Court s decision in Reed v. Town of Gilbert, S. Ct. (0). In Reed, the Supreme Court held that where a statute on its face draws distinctions based on the message conveyed including through its exceptions it is a content-based restriction subject to strict scrutiny, however admirable the government interest behind the law. Id. at ( [S]trict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based. (emphasis added)). The TCPA s exceptions render it a content-based restriction of speech that triggers strict scrutiny, and the Court should strike it down. Contrary to the Government s arguments, no court including the Ninth Circuit has considered whether the TCPA s statutory exceptions render it a content-based restriction of speech. Those exceptions plainly draw[] distinctions based on the message a speaker conveys, and therefore render the statute content-based. Id. at. The Government offers no substantive defense of the exceptions, other than trying to downplay Reed s impact, arguing that this Court has no jurisdiction to review FCC rulings concerning the TCPA s exceptions, and falling back on a halfhearted commercial speech argument. None of these arguments has merit. Circuit courts nationwide have held that Reed changed the way courts should analyze content neutrality a benign congressional purpose (say, an interest in protecting privacy) is no longer enough to avoid strict scrutiny where a statute on its face draws content-based distinctions. And the Government can t avoid the issue by casting Facebook s arguments as challenges to FCC rulings because it is the statute itself that draws distinctions based on content. Finally, the Government s strained attempt to THE UNITED STATES CASE NO. :-CV-0-JST

8 Case :-cv-0-jst Document Filed /0/ Page of cast the status update messages as commercial speech fails because a hypothetical economic motivation is clearly... insufficient by itself to turn a communication into commercial speech. Bolger v. Youngs Drug Prods. Corp., U.S. 0, (). ARGUMENT Facebook has raised the First Amendment as a reason to construe the ATDS definition narrowly, as well as an independent ground for dismissal. To be clear, Facebook is not challenging any FCC order, as the Government mistakenly claims. See Gov t Br.. Rather, the exceptions to TCPA liability are found in the statute and thus make the statute content-based. The other 0 0 arguments the Government advances to avoid the strict scrutiny mandated by the Supreme Court in Reed are meritless. I. Under Reed v. Town of Gilbert, the TCPA is Content-Based. The Supreme Court held in Reed that when a statute generally prohibits a certain manner of speech but contains exceptions that draw[] distinctions based on the message a speaker conveys, it is a content-based restriction of speech and thus subject to strict scrutiny. S. Ct. at. A straightforward application of Reed s clear and firm rule, id. at, requires this Court to conclude that the TCPA is a content-based restriction, because it allows some calls but bans others based on the subject matter and purpose of the message. A. Reed Changed the Law on Content-Based Discrimination. Because the Government misstates what Reed did and the impact Reed had, see Gov t Br., 0, it is necessary to examine what happened in that case. In Reed, the Supreme Court addressed the constitutionality of a local sign ordinance that prohibited all outdoor signs with several exemptions. S. Ct. at. Each exemption corresponded with a particular subject matter (e.g., directional signs for various types of events), and each exemption involved different restrictions, such as the size, shape, and number of the signs. See id. at. Relying extensively on Hill v. Colorado, 0 U.S. 0 (000), as the Government does here, see Gov t Br.,, the Ninth Circuit found the statute was content-neutral and upheld it against a First Amendment challenge. Facebook s challenge to the TCPA does not extend to the junk fax provision, and references to the TCPA should be understood to exclude that provision. See, e.g., U.S.C. (b)()(c). THE UNITED STATES CASE NO. :-CV-0-JST

9 Case :-cv-0-jst Document Filed /0/ Page of 0 0 See Reed, S. Ct. at. The Ninth Circuit held that even though an enforcement officer would have to read the sign to determine what provisions of the Sign Code applied to it, the kind of cursory examination that would be necessary for an officer to classify it as a temporary directional sign was not akin to an officer synthesizing the expressive content of the sign. Id. (citation omitted). And because the distinctions between the categories of signs were based on objective factors and did not otherwise consider the substance of the sign, the Ninth Circuit held the statute to be content-neutral as that term [has been] defined by the Supreme Court. Id. (citation omitted). The Supreme Court reversed, holding that the statute was content-based on its face. Id. at. The Court clarified that the commonsense meaning of the phrase content based requires a court to consider whether a regulation of speech on its face draws distinctions based on the message a speaker conveys. Id. It recognized that [s]ome facial distinctions based on a message... are more subtle, defining regulated speech by its function or purpose, but held that those distinctions are still drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. Id. The Supreme Court stressed that, contrary to prior Ninth Circuit precedent, a restriction that draws distinctions based on communicative content is subject to strict scrutiny, regardless of the government s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech. Id. at. However laudable the government s purpose behind a law may have been, an innocuous justification cannot transform a facially content-based law into one that is content neutral. Id. Although the Government scrambles to minimize Reed, see Gov t Br., & n., it ignores what courts across the country are saying. Circuit courts that have grappled with the impact of Reed have recognized that Reed did change the law, and many of those courts have overruled their prior precedent based on Reed. See, e.g., Pursuing America s Greatness v. FEC, F.d 00, 0 (D.C. Cir. 0) ( But since our decision in Republican National Committee, the Supreme Court has articulated a more limited view of the role purpose should play in our analysis. (citing Reed and overruling prior precedent)); Free Speech Coal., Inc. v. Attorney Gen., F.d, 0 (d Cir. 0) ( [I]n light of Reed, our analysis in FSC I... cannot stand. (overruling prior precedent)); Cent. Radio Co. Inc. v. City of Norfolk, F.d, (th Cir. 0) ( Reed... conflicted with, THE UNITED STATES CASE NO. :-CV-0-JST

10 Case :-cv-0-jst Document Filed /0/ Page 0 of 0 0 and therefore abrogated, our Circuit s previous formulation for analyzing content neutrality, in which we had held that [t]he government s purpose is the controlling consideration. ); Norton v. City of Springfield., 0 F.d, (th Cir. 0) ( Reed understands content discrimination differently than prior precedent). Although the Ninth Circuit has not yet addressed the impact of Reed on its prior precedents, it has emphasized that Reed provided authoritative direction for differentiating between content-neutral and content-based enactments. United States v. Swisher, F.d, (th Cir. 0) (en banc); see also NLRB v. Teamsters Union Local No. 0, Int l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., No. -00, 0 WL, at * (th Cir. Aug., 0) ( assum[ing], without deciding, that Reed changed the Supreme Court's First Amendment jurisprudence in some respects ). And Reed has had a direct impact on laws similar to the TCPA. In the wake of Reed, two courts have struck down state analogues to the TCPA. See Cahaly v. Larosa, F.d, 0 (th Cir. 0); Gresham v. Rutledge, No. :CV00 JLH, 0 WL 00, at * (E.D. Ark. July, 0). The Government cites Citizens for Free Speech, LLC v. Cty. of Alameda, F. Supp. d, (N.D. Cal. 0), in asking this Court to ignore Reed, claiming that Citizens for Free Speech limited Reed to the context of signs. Gov t Br. n.. Like Reed, the case arose in the context of a sign code, but unlike Reed, the sign code in Citizens for Free Speech did not impose restrictions based on those signs content. F. Supp. d at. The case stands for nothing more than that. Nothing in Judge Breyer s opinion claimed to cabin Reed s analysis to cases concerning sign regulations. Nor could the opinion be read to do so in light of the en banc Ninth Circuit s application of Reed to a statute about wearing medals. See Swisher, F.d at. And although the Government frets that applying Reed here would uproot decades of settled First Amendment case law and unnecessarily threaten important statutes, Gov t Br., the Government never explains what it means. It does not point to which aspects of settled First Amendment case law Facebook is asking this Court to uproot. Id. There can be no dispute that Reed uproot[ed] First Amendment case law, id., that allowed a court to consider government purpose in deciding whether a statute is content-based even when the statute on its face drew content-based distinctions. See S. Ct. at. To the extent the Government mourns the THE UNITED STATES CASE NO. :-CV-0-JST

11 Case :-cv-0-jst Document Filed /0/ Page of 0 0 departure of that doctrine, that s water under the bridge after the Supreme Court s reversal of the Ninth Circuit. Nor does the Government specify what other important statutes would be threatened (beyond the TCPA, of course). Gov t Br.. That is because the only statutes that would be threatened are those that draw[] distinctions based on the message a speaker conveys, which are exactly those statutes that Reed subjects to strict scrutiny. S. Ct. at. B. The TCPA s Exceptions Make It a Content-Based Restriction of Speech. As Facebook discussed in its motion to dismiss, MTD (Dkt. No. ), the TCPA exempts broad categories of speech based on the content of that speech. See U.S.C. (b)()(a),(b) (speech about urgent situations); id. (b)()(a)(iii) (speech about government debt); id. (b)()(b)(ii)(i), (b)()(c) (speech that promotes privacy ). As a result, the TCPA, like the sign ordinance in Reed, is subject to strict scrutiny. S. Ct. at. The Government cannot avoid strict scrutiny by pointing to Ninth Circuit precedent or by trying to insulate certain exceptions from challenge.. The Ninth Circuit Has Not Addressed Whether the TCPA s Exceptions Render It Content-Based. Recognizing that Reed is fatal to its arguments for the TCPA s content-neutrality, the Government (as Plaintiff did) seeks refuge in prior Ninth Circuit cases addressing First Amendment challenges to the TCPA. Gov t Br. 0. The Government goes even further than Plaintiff, though, and makes the remarkable assertion that [t]he Ninth Circuit [h]as [a]lready [r]ejected [i]dentical First Amendment [c]hallenges to the TCPA, id. at (emphasis added). That claim is incorrect. As Facebook explained in its motion, MTD & n., neither Ninth Circuit case on which the Government relies considered the First Amendment challenge at issue here, namely, whether the TCPA s exceptions render the statute content based. See Moser v. FCC, F.d 0 (th Cir. ); Gomez v. Campbell-Ewald Co., F.d (th Cir. 0). The Government itself admits in a footnote that the Ninth Circuit did not consider whether a commercial speech exception at issue in Moser (but not at issue here) rendered the TCPA content-based because unlike the exceptions at issue here, it was a regulatory rather than a statutory exception. Gov t Br. n.. THE UNITED STATES CASE NO. :-CV-0-JST

12 Case :-cv-0-jst Document Filed /0/ Page of 0 0 The Government cites other cases addressing First Amendment challenges, id. at 0, but omits that those cases address arguments that differed from Facebook s and provisions not at issue. See Maryland v. Universal Elections, Inc., F.d 0, (th Cir. 0) (challenging the identity disclosure requirement in section (d)); Wreyford v. Citizens for Transp. Mobility, Inc., F. Supp. d, 0 (N.D. Ga. 0) (not facing any challenge that the TCPA is contentbased); Strickler v. Bijora, Inc., No. CV, 0 WL 0, at * (N.D. Ill. Oct. 0, 0) (same); Abbas v. Selling Source, LLC, No. 0-CV-, 00 WL, * (N.D. Ill. Dec., 00) (same); Joffe v. Acacia Mortg. Corp., P.d, (Ariz. Ct. App. 00) ( The parties agree the TCPA creates a content-neutral time, place, and manner restriction on speech. ). To Facebook s knowledge, no court has yet addressed whether the TCPA s myriad and amorphous statutory exceptions render the TCPA a content-based restriction of speech. This is all the more true in light of Reed. Moser and Gomez pose no obstacle to addressing Facebook s argument, and there is no need to analyze whether Reed overrule[d] those cases because they do not govern the question presented. Gov t Br. 0.. The TCPA s Exceptions Are Content-Based. Each of the exceptions at issue turns on the content of speech, and thus renders the TCPA itself content-based. See MTD. First, the most glaring content-based exceptions are privacybased exceptions found in the text of the TCPA. The statute grants the FCC authority to exempt artificial or prerecorded voice calls from liability if the calls do not adversely affect the privacy rights that this section is intended to protect. U.S.C. (b)()(b)(ii)(i). The TCPA also gives the FCC authority to exempt from liability calls made to a wireless number with an ATDS if the calls are not charged to the called party and are in the interest of the privacy rights this section is intended to protect. Id. (b)()(c). On its face, the statute calls for scrutiny of the content of the message to determine whether it is consistent with the government s views on privacy. The Government doesn t even try to claim otherwise. Instead, the Government reverts again to mischaracterization, claiming that the Court cannot consider this exception because Facebook is challeng[ing] the FCC orders. Gov t Br.. Facebook has done no such thing. At no point in its briefs has Facebook made any suggestion that the FCC orders implementing the statutory privacy THE UNITED STATES CASE NO. :-CV-0-JST

13 Case :-cv-0-jst Document Filed /0/ Page of 0 0 exceptions were invalid under the TCPA. To the contrary, Facebook cited those orders as examples of how the privacy exceptions require the FCC to scrutinize speech in order to determine which speech to exempt. See In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of, 0 FCC Rcd., 0, 00 (0) ( 0 Order ). But in no sense does the validity of those orders form[] the basis for [Facebook s] constitutional argument. Gov t Br.. The problem is the statute, not the rulings. This case is therefore nothing like Mais v. Gulf Coast Collection Bureau, Inc., F.d 0 (th Cir. 0), the Government s lead case. In Mais, the district court ruled that a 00 FCC ruling was inconsistent with the statute and therefore declined to follow it in addressing a private plaintiff lawsuit. Id. at. The Eleventh Circuit reversed, holding that the district court s rejection of the FCC s order had the practical effect of vacating the order, and that under the Hobbs Act the district court exceeded its jurisdiction by declaring the 00 FCC Ruling to be inconsistent with the TCPA. Id. at, 0. But that is the opposite of what Facebook is asking for. It is not asking for this Court to contradict or countermand a Commission order, id. at 0 (quoting B.F. Goodrich Co. v. Nw. Indus., Inc., F.d, (d Cir. 0)): assuming that the FCC orders are faithful to the statute, Facebook is arguing that the statute is invalid. In trying to appropriate Mais for a case where a party attacks a statute and not FCC action, the Government stumbles into an extraordinary position. The implication of the Government s argument is that a statute is immune from challenge when an agency has issued an order or regulation pursuant to that statute, because striking down the statute would have the practical effect of invalidating any regulations that were issued under its ambit. Gov t Br.. Given the reach of the modern administrative state, the Government s position would insulate from constitutional challenge a large portion of the U.S. Code, to say nothing of state statutes that are interpreted by state agencies. The fact that courts have entertained constitutional challenges (albeit different ones) to the TCPA without any such concern, see, e.g., Moser, F.d at ; Gomez, F.d at, only underscores how far the Government will stretch in its effort to dissuade this Court from considering the content-based privacy exceptions in the TCPA. THE UNITED STATES CASE NO. :-CV-0-JST

14 Case :-cv-0-jst Document Filed /0/ Page of 0 0 Second, the TCPA s broad exemption for emergency calls is another example of how the TCPA discriminates based on content. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of, FCC Rcd., () ( Order ). Whether a call fits within that exception can be determined only by scrutinizing the content of the call and whether the message relays information about an urgent situation. See, e.g., Roberts v. Medco Health Sols., Inc., No. : CV CDP, 0 WL 0, at * (E.D. Mo. July, 0) (carefully reviewing the content of each message pertaining to a prescription for medication to determine whether it conveyed information about the health and safety of consumers and was thus exempt from TCPA liability); Order, FCC Rcd. at (describing exception as applying to calls that speed the dissemination of information regarding service interruptions or other potentially hazardous conditions to the public, and exempting autodialed calls that notify[] customers of potential power outages, maintenance, or termination ). The Government claims that the exception turns on the context of an emergency and not the content of the message. Gov t Br. n.. But this interpretation makes no sense. What is said, not when or where it is said, is what matters, as illustrated by the Roberts decision and the FCC orders that examine the content of the message to determine the applicability of the exception. See, e.g., Roberts, 0 WL 0, at *; Order, FCC Rcd. at. Otherwise, any message sent during an earthquake or power outage would qualify for the emergency exception, regardless of whether the message conveyed safety information or a joke. The Government also references time, place, or manner restrictions on ringing doorbells that have been upheld (because they did not discriminate on the basis of content), and then posits that these statutes would still pass constitutional muster if they had emergency exceptions. Gov t Br.. But it cites no analogous case. And it cites nothing to support its ipse dixit that a law of this sort would not be rendered unconstitutional or even constitutionality suspect because of the presence of an emergency exception. Id. at. Faithful application of the Supreme Court s test in As discussed supra, Facebook is not challenging the FCC orders (or the Roberts decision, for that matter). Facebook is challenging the statutory exception, which is content-based on its face independent of those orders. How the FCC and courts apply that exception only confirms the content-based nature of the provision. THE UNITED STATES CASE NO. :-CV-0-JST

15 Case :-cv-0-jst Document Filed /0/ Page of 0 0 Reed shows that the TCPA s broad exemption for emergency calls, Order, FCC Rcd. at, draws distinctions based on the purpose of the speech and is therefore content based. See Reed, S. Ct. at. Third, Congress recently amended the TCPA to add another content-based exception for any call made solely to collect a debt owed to or guaranteed by the United States. Bipartisan Budget Act of 0 0(a), Pub. L. No. -, Stat., codified at U.S.C. (b)()(a)(iii). This exemption likewise draws distinctions based on the [call s] communicative content. Reed, S. Ct. at. The only way to determine whether a call qualifies is to examine what the caller said to the called party: did the caller discuss a debt owed to or guaranteed by the United States? The Government does not even bother to defend the government debt exception as contentneutral. The Government cites two cases discussing government immunity, in arguing that different requirements for government conduct or speech do not raise First Amendment concerns. Gov t Br.. But neither case addresses whether an exception for a message about government debt an exception that turns on the content of the call, not on who makes the call is a contentbased speech restriction. As with the emergency exception, the Government here again offers a naked assertion that a provision like the government debt exception ha[s] never been thought to raise First Amendment concerns. Id. Application of Reed, though, leads to a contrary conclusion. The Government argues that Facebook lacks standing to cite the provision as a basis for claiming the TCPA is content-based because the government debt exception is severable. See Gov t Br.. But Facebook has raised a facial challenge to the statute, and therefore the Court looks to the statute as a whole. See, e.g., Reed, S. Ct. at (considering all content-based exceptions to ordinance); Foti v. City of Menlo Park, F.d, (th Cir. ) (considering all content-based exceptions to ordinance). The cases cited by the Government do not support its claim that the Court can ignore one of the content-based exceptions in considering Facebook s facial challenge. In Matter of Extradition of Lang, for example, the court rejected the argument that the mere unconstitutionality of the... statute provides an injury in fact sufficient to grant Article III standing. 0 F. Supp., (C.D. Cal. ). Here, Facebook is a defendant challenging the TCPA as a content-based restriction of speech; Facebook s standing is not at issue. And in Cache THE UNITED STATES CASE NO. :-CV-0-JST

16 Case :-cv-0-jst Document Filed /0/ Page of 0 0 Valley Electric Co. v. State of Utah Department of Transportation, the Tenth Circuit held that a plaintiff could not raise a constitutional challenge to a government program when removal of the challenged provision would not have righted plaintiff s claimed wrong. F.d, (0th Cir. ). There is no dispute that granting Facebook s requested relief invalidating the TCPA would ameliorate the injury to Facebook, which is continued prosecution of this lawsuit. What is more telling is the conspicuous absence of an argument by the Government (incorrect as it would be) that the other content-based exceptions are severable. Because the TCPA has other content-based exceptions, the Government s severability argument is beside the point. Despite the TCPA being riddled with content-based exceptions like the ordinance in Reed, Gov t Br., the Government argues that the TCPA is content neutral (and Reed does not apply) because Congress was concerned with the privacy of unwilling listeners, id. at. But the Supreme Court was unequivocal in Reed that the threshold inquiry into whether a statute is contentbased (as opposed to the application of the appropriate level of scrutiny) looks at Congress s purpose only when the statute on its face does not draw distinctions based on the content of the speech. As in Reed, the Government here skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech. Reed, S. Ct. at (citation omitted). The inquiry into the law s justification and purpose is reserved for laws that are facially content-neutral but are challenged as having a content-based purpose. Id. at. And that is decidedly not this case. This case involves a law that facially restricts speech on the basis of its content. Laws that do so are content-based. See, e.g., Carey v. Brown, U.S., 0 (0) (striking down picketing statute where the exemptions made the statute discriminate[] between lawful and unlawful conduct based upon the content of the demonstrator s communication ). In making this argument, the Government relies on the Supreme Court s earlier decision in Hill v. Colorado, which upheld as content-neutral a statute that made no reference to the content or subject matter of speech. 0 U.S. at. In contrast to the Hill statute, the TCPA draws THE UNITED STATES 0 CASE NO. :-CV-0-JST

17 Case :-cv-0-jst Document Filed /0/ Page of distinctions on its face based on the subject matter and topic of the message. In relying on Hill, the Government falls into the same trap that led the Ninth Circuit to be reversed in Reed: like the Government here, the Ninth Circuit erroneously concluded that the statute was content neutral where Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed. Reed, S. Ct. at (quoting Reed v. Town of Gilbert, 0 F.d 0, 0 (th Cir. 0) (citing Hill, 0 U.S. at 0, 0, 0) (quotation marks omitted)). II. Facebook s Status Update Messages Were Not Commercial Speech. The Government tries to duck Reed yet another way, arguing that the text messages at issue 0 0 here are properly commercial speech. Gov t Br.. But to bring Facebook s status update messages within the ambit of the commercial speech doctrine, the Government mangles the doctrine beyond recognition. Commercial speech is a narrow category of necessarily expressive communication, Dana s R.R. Supply v. Attorney Gen., 0 F.d, (th Cir. 0), that is related solely to the economic interests of the speaker and its audience, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n of N.Y., U.S., (0), and does no more than propose a commercial transaction, Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., U.S., () (quoting Pittsburgh Press Co. v. Human Relations Comm n, U.S., ()). It is simply not plausible to say that a status update message does no more than propose a commercial transaction. It doesn t propose any transaction at all: it notified a person associated with Facebook about their friends activity and reminded that person that he or she had not posted a status update to Facebook in a while. Am. Compl.. Despite the absence of any proposed commercial transaction, the Government claims that Facebook s status update messages are commercial speech under the commercial speech factors listed in Bolger, U.S. at. Gov t Br.. Bolger does not get the Government any nearer to its goal, though. The Ninth Circuit has held that [w]here the facts present a close question, speech may be characterized as commercial if the speech is an advertisement, the speech refers to a particular product, and the speaker has an economic motivation. Hunt v. City of Los Angeles, F.d 0, (th Cir. 0) (emphasis added, citation omitted). As discussed above, this isn t a close question because the status update THE UNITED STATES CASE NO. :-CV-0-JST

18 Case :-cv-0-jst Document Filed /0/ Page of 0 0 messages don t propose a commercial transaction. And the Bolger factors provide no help to the Government anyway because it admits that the first factor, whether the speech is an advertisement, is not met. Gov t Br. ( Facebook s texts are not advertisements in the traditional sense. ). This is consistent with Facebook s unrebutted argument that the TCPA would not classify the status update messages as either advertisements or telemarketing. See MTD. As for the second factor, the Government claims that the invitation to post a status update was a reference to Facebook s most prominent product. Gov t Br.. Even if this invitation for a person to post an update about what that person was up to could somehow be considered commercial, it would not retain its commercial character because it is inextricably intertwined with otherwise fully protected speech, namely, a notification about what that person s friends were doing on Facebook, and can [not] be easily separated. Hunt, F.d at (citation omitted). The Government is thus left with unsupported references to economic motivation. But that single factor is insufficient, since the Bolger factors support[] a conclusion that speech is commercial only when all three are present in combination. Dex Media W., Inc. v. City of Seattle, F.d, (th Cir. 0) (citation omitted); see also Bolger, U.S. at. Just as a reference to a specific product does not by itself render... pamphlets commercial speech, neither does the fact that [defendant] has an economic motivation for [the speech]. Bolger, U.S. at -. Economic motivation is considered only to confirm a message that is an advertisement and refers to a particular product is, in fact, commercial. Hunt, F.d at. When a message proposes no commercial transaction, is not an advertisement, and references a product only in passing, economic motivation alone is insufficient. The Government hypothesizes that the status update messages were intended to incentivize the recipient to log onto Facebook, which in turn would have caused that person to see advertising, which in turn generates revenue for Facebook. Gov t Br.. That is far too broad a conception of commercial speech. Under the Government s test, any communication by any entity that is designed to improve the experience of the people using its service would be deemed commercial speech. For example, a weather alert from a weather app would be commercial, because it would [i]nvit[e] a user to access the weather company s website, an action that could allow the company to generate THE UNITED STATES CASE NO. :-CV-0-JST

19 Case :-cv-0-jst Document Filed /0/ Page of 0 0 revenue through the sale of targeted advertising to third party advertisers. Id. Take another example: a company sends an information bulletin to its customers that encourages them to petition their legislature for tort reform or that recommends certain candidates for office. Commercial speech, the Government would say, because the company undeniably had an economic motivation for sending the messages. Id. And so on. The Government articulates no limiting principle for its sprawling conception of the commercial speech doctrine, which only confirms that the doctrine does not apply here. The Government can find no support for its boundless theory in the various district court cases it cites. Gov t Br.. In L.A. Taxi Cooperative, Inc. v. Uber Technologies, Inc., the court held that statements on a receipt that was ed following a completed transaction and that touted Uber s safety policies could plausibly be considered commercial speech under the propose a commercial transaction test, because they plausibly proposed a continued business relationship. F. Supp. d, (N.D. Cal. 0) (quotations omitted). The remaining case deals with an that expressly encouraged the recipient to sign up for a new product. See Perkins v. LinkedIn Corp., F. Supp. d, 0 (N.D. Cal. 0) ( s encouraging people to sign up for a product). As Facebook emphasized in its motion, the commercial speech argument does not affect affect Facebook s facial challenge to the statute because the statute applies to commercial and noncommercial speech. See MTD (citing cases). Although the Government comments in passing on Facebook s facial challenge, see Gov t Br. n., the overbreadth test is satisfied when a statute applies not just to the telemarketing calls that motivated the TCPA but to all telephone calls and text messages, commercial or noncommercial, that are made with particular equipment. The Government s attempt to question whether a great many of [the TCPA s] applications are to noncommercial speech, id., falls flat given that the Government admits that the TCPA does not distinguish between commercial and noncommercial speech, id., and the Court will only have reached the First Amendment argument if it construes the TCPA s definition of ATDS to reach a broad swath of targeted, responsive speech. THE UNITED STATES CASE NO. :-CV-0-JST

20 Case :-cv-0-jst Document Filed /0/ Page 0 of 0 0 III. The TCPA Does Not Survive Strict Scrutiny. For the reasons discussed in Facebook s motion, see MTD, the TCPA cannot survive strict scrutiny because it is not the least restrictive means of achieving a compelling state interest. McCullen v. Coakley, S. Ct., 0 (0). Although the Government devotes several pages to touting the importance of Congress s interest in promoting privacy, Gov t Br., Facebook has assumed for purposes of this motion that promoting privacy is a compelling state interest. Cf. Gomez, F.d at. Content-based regulations are presumptively invalid, and the Government bears the burden to rebut that presumption. United States v. Playboy Entm t Grp., Inc., U.S. 0, (000) (quoting R.A.V. v. St. Paul, 0 U.S., ()); see also Reno v. Am. Civil Liberties Union, U.S., () ( The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective. ). The Government does not come close to doing so. To the extent that the Government is relying on the Ninth Circuit s prior rulings in Gomez and Moser, those rulings upholding the TCPA under the intermediate scrutiny that applies to contentneutral time, place, or manner restrictions do not establish that the TCPA survives the strict scrutiny that applies to content-based restrictions of speech. While trying to justify some (but not all) of the exceptions on their own terms, the Government misses the larger point. See Gov t Br. 0 & n.. The exceptions show that the statute is underinclusive, i.e., is not the least restrictive means necessary to serve a compelling government interest. Reed itself found a statute of general applicability (like the TCPA) that contained a number of content-based exceptions (like the TCPA) to be fatally underinclusive. S. Ct. at. The Government does not even dispute that the TCPA places strict limits on [some calls] under the guise of promoting privacy while at the same time allowing unlimited numbers of other types of [calls] that create the same problem. Id. As Reed shows, that characteristic is fatal under strict scrutiny. The Government s only response to the statute s overinclusivity is to suggest that Facebook should have no trouble obtaining consent from those who want to receive status notifications. Gov t Br. 0. But even Plaintiff has acknowledged that the currently intractable issue of recycled THE UNITED STATES CASE NO. :-CV-0-JST

21 Case :-cv-0-jst Document Filed /0/ Page of 0 0 numbers means that an entity like Facebook may not necessarily be able to rely on the consent it received from the Facebook user who registered the number with the user s account. Am. Compl.,, 0. As the Fourth Circuit recognized in Cahaly, the TCPA was focused on unwanted en masse telemarketing calls to randomly or sequentially generated numbers. See F.d at 0. Plaintiff s request to apply the TCPA to the speech at issue here text message alerts that people want and sign up for goes far beyond Congress s privacy concerns about telemarketers and their specialized equipment. It also conflicts with Congress s desire to permit legitimate [calling] practices. U.S.C. note. And the Government cannot offer its say-so that the less restrictive alternatives Facebook listed are not viable substitutes. Gov t Br. 0. The Government argues that these less restrictive alternatives would not be as effective as the TCPA s blanket prohibition. Gov t Br. 0. But that is not the test; otherwise, the greater the prohibition on speech, the more likely to survive strict scrutiny, since a challenger could never point to an alternative that would be as effective as a blanket restriction of speech. The test is whether less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. Reno, U.S. at (emphasis added). Congress s purpose was to promote privacy. The numerous options that Facebook identified (time-of-day limitations, mandatory disclosure of the caller s identity, do-notcall lists, disconnection requirements, prohibitions on calls to emergency lines) have been specifically upheld as less restrictive alternatives for promoting privacy sufficient to defeat state TCPA analogs by two courts. See Cahaly, F.d at 0; Gresham, 0 WL 00, at * & nn.. Because there are less restrictive alternative[s] that would serve the Government's purpose, the legislature must use that alternative. Playboy, U.S. at. The TCPA s constitutional infirmity should at the very least lead this Court to interpret the statute not to apply to the targeted status update messages at issue here. See, e.g., Nadarajah v. Gonzales, F.d 0, 0 (th Cir. 00). But if the Court nevertheless extends the statute to such a message, then it must reach the First Amendment question. This case involves allegations that Facebook used text messages to convey information that people request, namely alerts about their activity and their friends activities on Facebook. Facebook s services thrive on the instant THE UNITED STATES CASE NO. :-CV-0-JST

22 Case :-cv-0-jst Document Filed /0/ Page of electronic communication that the Internet makes possible. As evidenced by the messages at issue, the people who use Facebook desire the fluid and instantaneous flow of information that is now possible thanks to the innovations of the recent decade. Yet potential TCPA liability makes the provision of legitimate, desired communications a risky activity for Facebook: engage in the frictionless communications essential to providing innovative and beneficial services to people under threat of TCPA liability or lose competitive ground. Applying the TCPA to prohibit Facebook s status update messages violates the First Amendment. CONCLUSION For the foregoing reasons, the Court should dismiss the Amended Complaint with prejudice. 0 0 THE UNITED STATES CASE NO. :-CV-0-JST

23 Case :-cv-0-jst Document Filed /0/ Page of DATED: November, 0 0 /s/ Andrew B. Clubok Andrew B. Clubok (pro hac vice) KIRKLAND & ELLIS LLP 0 Lexington Avenue New York, NY 00 Tel: () -00 Fax: () -0 andrew.clubok@kirkland.com Susan E. Engel (pro hac vice) Devin S. Anderson (pro hac vice) KIRKLAND & ELLIS LLP Fifteenth Street, NW Washington, DC 000 Tel: (0) -000 Fax: (0) susan.engel@kirkland.com devin.anderson@kirkland.com Elizabeth L. Deeley (SBN 0) KIRKLAND & ELLIS LLP California Street San Francisco, CA 0 Tel: () -00 Fax: () elizabeth.deeley@kirkland.com Attorneys for Defendant Facebook, Inc. 0 THE UNITED STATES CASE NO. :-CV-0-JST

24 Case :-cv-0-jst Document Filed /0/ Page of CERTIFICATE OF SERVICE I hereby certify that on November, 0, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all persons registered for ECF. All copies of documents required to be served by Fed. R. Civ. P. (a) and L.R. - have been so served. /s/ Sarah Farley Sarah Farley 0 0 CERTIFICATE OF SERVICE CASE NO. :-CV-0-JST