Treating Journalism As Consumer Fraud, Trump Claims Coverage of a Presidential Poll Was Not 'News Reporting'

Shortly before last year's presidential election, the Des Moines Register reported the results of a poll that gave Kamala Harris, the Democratic candidate, a three-point lead in Iowa. That surprising result, generated by a survey that pollster Ann Selzer conducted for the Register, proved to be off by more than a little: Donald Trump ultimately won Iowa by 13 percentage points.

Trump is still mad about that survey, and he is trying to punish the Register and Selzer for it by persuading a federal judge in Iowa that it amounted to consumer fraud under state law. The obvious problem for Trump is that his fraud claim hinges on showing that he suffered damages because he reasonably relied on misrepresentations by the defendants in connection with the sale of "consumer merchandise." Since Trump did not buy anything from the Register or Selzer, the Foundation for Individual Rights and Expression (FIRE) argued in a motion to dismiss his lawsuit, he is trying to invent a tort that consists of reporting "fraudulent news," which would be plainly inconsistent with the First Amendment.

Not so, Trump lawyers Edward Andrew Paltzik and Alan R. Ostergren say in their opposition to dismissal. The plaintiffs, who include two Iowa politicians as well as Trump, "have not brought a claim for 'fraudulent news' or for that matter, any claim involving news," Paltzik and Ostergren write, because "defendants were not engaged in any news reporting. Rather, Defendants intentionally (or at minimum, negligently) disseminated false polling data for increased profit and readership."

When the Register reported that "Kamala Harris now leads Donald Trump in Iowa," in other words, the story might have looked like coverage of the presidential race. But it was actually not "news reporting" at all, because it was 1) inaccurate and 2) motivated by a desire for "increased profit and readership." If a news organization gets a story wrong while trying to make money or attract readers, according to Paltzik and Ostergren, it is not practicing journalism, even poorly. It is engaged in "commercial speech," which enjoys less protection under the First Amendment.

That is not what "commercial speech" means, FIRE notes in a reply brief it filed last week. "'Commercial speech' is not speech someone was paid to produce, as Plaintiffs evidently think," write FIRE Chief Counsel Robert Corn-Revere and his colleagues, who represent Selzer. The commercial speech doctrine, as articulated by the Supreme Court in the 1980 case Central Hudson & Electric Corp. v. Public Services Commission, "applies to advertising—speech proposing commercial transactions."

Trump's lawyers claim "Selzer's polls and the Register are 'consumer products' and 'commercial speech' because they operate for-profit businesses," Corn-Revere et al. note. That argument "would (or should) embarrass a first-year law student," FIRE says, noting that it contradicts "the very basic concept that speakers do not 'shed their First Amendment protections by employing the corporate form to disseminate their speech,'" as the Supreme Court put it in the 2023 case 303 Creative v. Elenis. That point, the Court explained, "underlies our cases involving everything from movie producers to book publishers to newspapers."

Paltzik and Ostergren also assert that "false statements—whether on the pages of a newspaper or elsewhere—are a species of fraud and do not enjoy immunity from tort liability when the speaker makes the statements with knowledge of falsity or reckless disregard for truth or falsity." Here they are borrowing language from the law of defamation, which is irrelevant in this context, since Trump does not claim that Selzer or the Register defamed him.

Paltzik and Ostergren misleadingly quote the Supreme Court's observation in the 1963 defamation case Garrison v. Louisiana that "the knowingly false statement and the false statement made with reckless disregard of the truth do not enjoy constitutional protection." This is "the guiding principle underpinning false speech," they claim, obscuring the fact that the case involved defamation, not false statements generally, and so has nothing to do with Trump's consumer fraud claim.

Paltzik and Ostergren, in short, imply that false speech is not protected by the First Amendment—a proposition that the Supreme Court explicitly rejected in the 2012 case Alvarez v. United States. "Isolated statements in some earlier decisions do not support the Government's submission that false statements, as a general rule, are beyond constitutional protection," the justices said in Alvarez. "The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection."

As FIRE notes, Paltzik and Ostergren do not even cite Alvarez, "the leading Supreme Court case rejecting a generalized First Amendment exception for 'false speech,'" let alone contend with its implications. "Plaintiffs offer a random collection of one-liners from defamation and commercial speech cases to suggest false speech generally lacks First Amendment protection," Corn-Revere et al. write. "The obvious problem with this is that it is precisely the line of argument the Supreme Court rejected in Alvarez."

Trump's case, you may recall, is supposed to be about consumer fraud. Yet he has never satisfactorily explained in what sense he was defrauded as a consumer.

The Iowa Consumer Fraud Act authorizes lawsuits by victims of misrepresentations "in connection with the advertisement, sale, or lease of consumer merchandise." But as FIRE notes, "Selzer's polls are not 'consumer merchandise' because they are not sold or leased 'primarily for personal, family, or household purposes.'"

Trump also alleges fraudulent misrepresentation. "The 'representation' element pertains to a statement made to induce another into entering a transaction, such as a false statement made by a seller to a buyer," Corn-Revere et al. note. "Yet Plaintiffs point to no representations by Selzer for the purpose of inducing anyone (much less Plaintiffs) into a purchase." Two other elements of that claim—the materiality and intent of the statement—likewise contemplate a transaction that in this case never happened: "On all three elements, Plaintiffs are cutting out the transaction inducement element of fraud—the sine qua non ingredient that makes fraud a cognizable cause of action—and hoping the Court doesn't notice the misdirection."

Trump also is supposed to allege that he justifiably relied on a false statement. Here, too, "Plaintiffs attempt to bypass the transaction aspect of fraud," FIRE says. "Justifiable reliance means that a defendant justifiably relied on a representation by a plaintiff when deciding whether to enter a transaction. If justifiable reliance were not tethered to an induced transaction, gamblers would sue ESPN analysts for failed sports bets, claiming they 'justifiably relied' on the sports expertise of the network's on-air talent. That is not how tort law works."

The lack of a commercial relationship with Selzer or the Register also presents a problem for the plaintiffs' negligent misrepresentation claim. "Selzer had no contract with Plaintiffs, express or implied, and Plaintiffs do not argue otherwise," Corn-Revere et al. write. "The pertinent question is whether Selzer had a legal duty to supply Plaintiffs with information. She did not, and Plaintiffs offer no authority creating a legal duty between a pollster and the politicians whose public support the pollster measures."

In essence, FIRE says, Trump is claiming that "consumers of news should have a cause of action against news providers that get a story wrong through negligence." Accepting that premise would have a paralyzing impact on journalists, since they would be exposed to daunting legal expenses and potentially ruinous civil liability whenever their reporting was arguably misleading or inaccurate.

"Once you get past the groundless assertions, campaign-style hyperbole, and overheated conspiracy theories, there is nothing left," FIRE concludes. "No legal basis whatsoever supports the claims, and Plaintiffs' opposition to the motions to dismiss reveals both shocking unfamiliarity with basic concepts of First Amendment law and a disregard of the pleading requirements for fraud or misrepresentation under Iowa law."

Even though his claims are laughable, Trump already has punished the Register and Selzer by forcing them to defend against his legally groundless complaint. Notably, Iowa is not one of the 35 states with anti-SLAPP laws, which aim to discourage litigation targeting constitutionally protected speech by allowing expedited dismissal and requiring losing plaintiffs to pay their opponents' legal costs.

As Trump's similarly frivolous lawsuit against CBS in Texas shows, even large media companies can succumb to such pressure, especially when it is combined with threats of regulatory retaliation. And even if Trump does not succeed in establishing a cause of action for "fraudulent news," this sort of litigation can have a chilling impact on journalism, which is what he explicitly hopes to accomplish.

"We have to straighten out the press," Trump says, explaining his motivation for suing CBS and the Register. "I have to do it [because] our press is very corrupt."

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