It is hard to imagine a legal claim that violates basic First Amendment principles more thoroughly than does President-elect Donald Trump’s lawsuit against veteran Iowa pollster J. Ann Selzer and The Des Moines Register.
His civil lawsuit arises from a poll published before the November 2024 election that predicted Vice President Kamala Harris in the lead in Iowa. It seeks damages and a court order to prevent the newspaper from publishing any future “deceptive polls” that might “poison the electorate.”
Trying to punish newspapers for supposedly “false” reports is not a new phenomenon. Backlash to the Sedition Act of 1798, in which Congress criminalized “false” criticism of some politicians, laid the foundation of First Amendment doctrine. This lawsuit is just a new name for the same theory long rejected under the First Amendment.
Trump’s lawsuit, brought under an Iowa law against “consumer fraud,” violates long-standing constitutional principles. It’s also entirely meritless under the Iowa law.
Enlisting the courts to settle political grudges is directly at odds with the First Amendment’s protection for political speech.
The lawsuit is the very definition of a “SLAPP” suit — a Strategic Lawsuit Against Public Participation. Such tactical claims are filed purely for the purpose of imposing punishing litigation costs on perceived opponents, not because they have any merit or stand any chance of success. In other words, the lawsuit is the punishment. And it’s part of a worrying trend of activists and officials using consumer fraud lawsuits to target political speech they don’t like.
FIRE opposes SLAPP suits and is representing Selzer in order to vindicate her — and your — First Amendment rights.
Every election has its outlier polls.
Election polling is core First Amendment activity. It asks people how they will vote and shares an opinion — an educated guess — predicting the likely outcome. Every presidential election cycle brings hundreds of polls, and every cycle has outliers giving false hope (or added anxiety) to supporters of a given candidate.
Selzer’s Iowa polls have long enjoyed “gold standard” status, accurately predicting Donald Trump’s victories in Iowa in 2016 and 2020. But despite using the same methodology as her previous polls, Selzer’s final 2024 poll, commissioned by the Register, was this cycle’s outlier, predicting a narrow Harris victory.
Selzer owned up to the margin between her poll and the eventual outcome of Trump comfortably winning Iowa. She acknowledged the “biggest miss of my career” and did what good pollsters do: She explained her methodology and publicly shared the poll’s crosstabs (results reported out by demographic and attitudinal subgroups), its questionnaire (with demographic information and weighted and unweighted responses), and her theories on the results, inviting others to offer theirs in turn.
A bogus ‘consumer fraud’ lawsuit
The post-election transparency Selzer provided wasn’t enough for Trump, despite his winning the presidency.
During a press conference last month, Trump theorized that the poll was fabricated entirely and pledged to “straighten out the press” because it was “almost as corrupt as our elections are.” That evening, he sued Selzer, her polling company, the Register, and the newspaper’s parent company, Gannett, claiming the poll’s publication violated Iowa’s consumer fraud statute.
This lawsuit uses an inapplicable state statute as a cudgel to force Selzer and the Register to waste time and money on lawyers to respond to the allegations. Enlisting the courts to settle political grudges is directly at odds with the First Amendment’s protection for political speech.
Trump’s calls to investigate pollster put First Amendment at risk
News
President-elect Donald Trump called for an investigation after Des Moines Register pollster Ann Selzer predicted just days before the election that he would lose Iowa by three points.
Start with the law. Consumer fraud laws target sellers who make false statements to get you to buy something. They’re about the scam artist who rolls back the odometer on a used car, not a newspaper poll or TV weather forecast that gets it wrong.
Just read the Iowa statute. Trump must identify a fraudulent or deceptive statement “in connection with the advertisement, sale, or lease of consumer merchandise, or the solicitation of contributions for charitable purposes.” Selzer’s poll did not advertise or solicit anything, much less “consumer merchandise,” which Iowa law defines as that intended for “personal, family, or household uses.”
Trump’s complaint also argues Selzer engaged in “brazen election interference.” But publishing a poll doesn’t constitute “election interference.” Under Iowa law, election “interference” is conduct like submitting a “counterfeit official election ballot,” encouraging someone to vote when you know they legally cannot, or other forms of direct interference with the conduct of the election.
Conducting and publishing a poll is protected First Amendment speech. It has nothing to do with “election interference.”
The use of consumer fraud lawsuits collides with the First Amendment
The notion that officials can recast the electorate as “consumers” to punish political speech or news they don’t like is squarely at odds with the First Amendment — yet it’s a theory increasingly advanced by partisans on both the left and the right. From the left, there are calls to regulate “misinformation” on social issues and, from the right, calls to impose “accountability” on news media for their political commentary.
Consumer fraud statutes have no place in American politics, or in regulating the news. But it has become an increasingly popular tactic to use such laws in misguided efforts to police political speech. For example, a progressive nonprofit tried to use a Washington state consumer protection law in an unsuccessful lawsuit against Fox News over its COVID-19 commentary. And attorneys general on the right used the same “we’re just punishing falsehoods” theory to target progressive outlets. Right now, Texas is arguing in a federal appellate court that it can use the state’s Deceptive Trade Practices Act to punish political speech even if it is “literally true,” so long as officials think it’s misleading.
Any attempt — by Democrats, Republicans, or anyone else — to punish and chill reporting of unfavorable news is an affront to the First Amendment.
Attempts to prohibit purportedly false statements in politics are as old as the republic. In fact, our First Amendment tradition originated from colonial officials’ early attempts to use libel laws against the press.
America rejected this censorship after officials used the Sedition Act of 1798 to jail newspaper editors for publishing “false” and “malicious” criticisms of President John Adams. Thomas Jefferson pardoned and remitted the fines of those convicted, writing that he considered the Act “to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”
The Supreme Court has since described our experience with the Sedition Act as the event that “first crystallized a national awareness of the central meaning of the First Amendment.” And it has held that government efforts to bar the publication of news reports are “the essence of censorship.”
Since then, courts have soundly and repeatedly rejected modern campaigns to regulate “false” speech because, under the First Amendment, “the citizenry, not the government, should be the monitor of falseness in the political arena.”
SLAPPs chill speech because lawyers are expensive and lawsuits are stressful
Even when a court dismisses a meritless lawsuit against a speaker, the person filing the lawsuit still “wins” because their critics must spend time and money on the legal process. As Trump once colorfully put it after losing a lawsuit: “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
Some states have anti-SLAPP statutes that require a plaintiff suing over speech to show his case has merit. If he cannot, the plaintiff has to pay the defendant’s legal fees — discouraging plaintiffs from chilling speech through the cost of a lawsuit. But Iowa is not among those states.
So FIRE is stepping in to represent Selzer and her polling company, Selzer & Company, against this baseless suit. By providing pro bono support, we’re helping to remove the financial incentive of SLAPP suits — just as we’ve done when a wealthy Idaho landowner sued over criticism of his planned airstrip, when a reddit moderator was sued for criticizing a self-proclaimed scientist, and when a Pennsylvania lawmaker sued a graduate student for “racketeering.” (If you are a lawyer who wants to help provide pro bono support to people facing lawsuits for their speech, please join FIRE’s Legal Network.)
Any attempt — by Democrats, Republicans, or anyone else — to punish and chill reporting of unfavorable news is an affront to the First Amendment. Hearing an opinion or prediction that turns out to be “wrong” is the price of living in a free society. And no American should fear that their commentary on American elections should subject them to liability.
FIRE protects the First Amendment, whether it’s threatened by the president of the United States or your local mayor. And we do so for all Americans, whether you’re a conservative student unable to wear a “Let’s Go Brandon” sweatshirt, a professor censored under Florida’s STOP WOKE Act, or a libertarian mother arrested for criticizing her city’s mayor.
If your First Amendment rights are threatened, contact FIRE.
This post was originally published on here
