TRUMP’S CAMPAIGN TO GO IT ALONE ON FIRST AMENDMENT CHALLENGE TO THE TCPA

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, and Michael R. Creta

On Monday, the U.S. Department of Justice (“DOJ”) declined to intervene in Thorne v. Donald J. Trump for President, Inc., 1:16-cv-04603 (N.D. Ill.).  As previously discussed here, a class of plaintiffs sued President-Elect Trump’s campaign alleging violations of the Telephone Consumer Protection Act (“TCPA”) in connection with text messages sent during the campaign. In seeking dismissal of the suit, the campaign argued that the TCPA does not pass muster under the First Amendment.  Specifically, the campaign asserted that Congress’s November 2015 exemption of calls relating to government debt constitutes “preferential treatment” and qualifies as a “blatant and egregious form of content discrimination.”

The DOJ did not provide a reason for declining to intervene, and the campaign is now faced with the prospect of going it alone in its First Amendment challenge to the TCPA.