By Ross Todd, from The Recorder

SAN FRANCISCO — Lawyers for the federal government have weighed in against Facebook in a privacy lawsuit where the company is raising a Constitutional challenge to the Telephone Consumer Protection Act.

The TCPA allows private plaintiffs to seek up to $1,500 in statutory damages for each unsolicited robocall or text message they receive, but exempts emergency warnings. Plaintiffs counsel at Lemberg Law filed a class action in March in the Northern District of California claiming that Facebook violated the TCPA by sending unsolicited text messages to people who hadn’t provided their cellphone numbers to the company via its “login notifications” alerts.

As part of a motion to dismiss the lawsuit, Facebook’s lawyers at Kirkland & Ellis raised a First Amendment challenge to the TCPA’s carve-out for emergency messages. The exemption, Kirkland’s Elizabeth Deeley wrote, amounts to an unconstitutional “content-based regulation of noncommercial speech.”

But in a brief filed Friday, a lawyer with the Civil Division of the U.S. Department of Justice in Washington, D.C., defended the law. DOJ trial attorney Bailey Heaps argued that Facebook’s text messages were commercial speech and should be subject to a lower level of Constitutional scrutiny than the company proposed. Heaps further wrote that the Ninth Circuit has previously found that the TCPA regulations are “a permissible content-neutral, time, place, and manner restriction” on otherwise protected speech.

“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,” Heaps wrote.

A Facebook spokesperson reached by email Monday didn’t immediately have any comment.

The underlying case, Duguid v. Facebook, 15-985, is pending before U.S. District Judge John Tigar.

For more on this story go to: http://www.therecorder.com/id=1202744843167/Government-Fights-Facebook-on-Commercial-Speech#ixzz3uOx6Dz9F