Trump Mounts a 'Direct Assault on the First Amendment' by Portraying Journalism As Consumer Fraud
The president-elect's lawsuit against The Des Moines Register is a patently frivolous and constitutionally dubious attempt to intimidate the press.
A month before the presidential election, 60 Minutes aired an interview with the Democratic nominee, Vice President Kamala Harris, that was edited to make her response to a question about Israel "more succinct," as the show's producers put it. But Donald Trump, then the Republican nominee and now the president-elect, complained that "her REAL ANSWER WAS CRAZY, OR DUMB, so they actually REPLACED it with another answer in order to save her or, at least, make her look better." As Trump saw it, that was "A FAKE NEWS SCAM, which is totally illegal."
How so? According to a lawsuit that Trump filed against CBS in the U.S. District Court for the Northern District of Texas on October 31, the editing of the Harris interview violated that state's Deceptive Trade Practices Act, causing him "at least" $10 billion in damages. A lawsuit that Trump filed against The Des Moines Register this week follows the same playbook, claiming that the newspaper's coverage of an inaccurate presidential poll violated Iowa's Consumer Fraud Act.
In both cases, Trump implausibly describes news reporting as "election interference" that constitutes consumer fraud because it misleads viewers or readers. It is hard to overstate the threat that such reasoning, which seeks to transform journalism that irks Trump into a tort justifying massive damage awards, poses to freedom of the press.
Although neither lawsuit is likely to make much headway, the cost of defending against such litigation is apt to have a chilling effect on journalism, which is what Trump wants. "We have to straighten out the press," he told reporters on Monday, explaining his motivation in suing CBS and the Register.
The lead defendant in the latter case, which was originally filed in the Iowa District Court for Polk County but has been transferred to the U.S. District Court for the Southern District of Iowa, is pollster J. Ann Selzer, who conducted a pre-election voter survey for the Register that indicated Harris had a small lead over Trump in Iowa. According to that poll, which was released on the Saturday before the election, 47 percent of Iowa voters favored Harris, compared to 44 percent for Trump. Those results proved to be off by more than a little: Trump won Iowa by a 13-point margin.
The Register reported the poll results three days before the election under the headline "Iowa Poll: Kamala Harris Leapfrogs Donald Trump to Take Lead Near Election Day." Reporter Brianne Pfannenstiel began the story this way: "Kamala Harris now leads Donald Trump in Iowa—a startling reversal for Democrats and Republicans who have all but written off the state's presidential contest as a certain Trump victory." Pfannenstiel quoted Selzer, who said: "It's hard for anybody to say they saw this coming. She has clearly leaped into a leading position."
The poll, Pfannenstiel reported, "shows that women—particularly those who are older or who are politically independent—are driving the late shift toward Harris." Selzer amplified that point, saying "age and gender are the two most dynamic factors that are explaining these numbers."
Trump was outraged by the poll. "It's called suppression," he said at a rally in Pennsylvania the day after the Register ran Pfannenstiel's story. Selzer questioned that take. "I think this poll stands a good chance of motivating Republicans to get out and vote," she told the Register. "They may have thought they'd win easily. So it's hard to think it's suppression." But Trump was sure that a poll suggesting Harris was ahead by a few points would discourage his supporters from voting. "They suppress," he said at the rally. "And it actually should be illegal."
In fact, it was illegal, Trump's lawsuit argues. It says publication of the erroneous poll's surprising results, which generated wide news coverage, amounted to "brazen election interference" that violated the Iowa Consumer Fraud Act.
That law prohibits "a person" from engaging in "a practice or act" that he "knows or reasonably should know is an unfair practice, deception, fraud, false pretense, or false promise, or the misrepresentation, concealment, suppression, or omission of a material fact, with intent that others rely upon the unfair practice, deception, fraud, false pretense, false promise, misrepresentation, concealment, suppression, or omission in connection with the advertisement, sale, or lease of consumer merchandise." It authorizes consumers harmed by such chicanery to sue for damages.
In this case, Trump's lawsuit says, the consumers include "President Trump, together with all Iowa and American voters." The "merchandise" includes "physical newspapers, online newspapers, and other content" that reported the results of Selzer's poll.
The defendants "engaged in 'deception,'" the lawsuit says, "because the [poll] was 'likely to mislead a substantial number of consumers as to a material fact or facts,' to wit: the actual position of the respective candidates in the Iowa Presidential race." Selzer and the Register "engaged in an 'unfair act or practice' because the publication and release of the [poll] 'cause[d] substantial, unavoidable injury to consumers that [was] not outweighed by any consumer or competitive benefits which the practice produced.'"
Trump complains that his campaign was "forced to divert enormous campaign and financial resources to Iowa" because of the poll. He says "consumers within Iowa who paid for subscriptions to the Des Moines Register or who otherwise purchased the publication were also badly deceived." So were "Iowans who contributed to the Trump 2024 Campaign."
Unlike Trump's lawsuit against CBS, which preposterously claims that editing the 60 Minutes interview to make Harris seem slightly more cogent caused him damages "reasonably believed to be at least $10,000,000,000," his lawsuit against Selzer and the Register does not include a dollar figure. But it argues that "because the Defendants' conduct was willful and wanton," Trump is "entitled to statutory damages three times the actual damages suffered."
Trump's use of the Iowa Consumer Fraud Act, like his use of the Texas Deceptive Trade Practices Act, is plainly frivolous. Both of these laws are aimed at fraud that harms consumers by misleading them in connection with their purchases of products or services. Trump seems to be arguing that Register subscribers have a statutory right to expect that the newspaper's reporting will never be inaccurate or misleading. The implication is that they have a cause of action whenever the Register gets something wrong.
By Trump's reasoning, flubs like the Chicago Tribune's "Dewey Defeats Truman" story are not such embarrassing mistakes; they are "unfair" and "deceptive" trade practices that justify civil damages. Kash Patel, Trump's pick to run the FBI, similarly claims that news outlets illegally "rig[ged] presidential elections" when they reported on the 2016 Trump campaign's alleged ties to the Russian government, cast doubt on the authenticity of documents from Hunter Biden's abandoned laptop, or lent credence to former British intelligence officer Christopher Steele's "Trump Dossier."
These attempts to convert complaints about press coverage into crimes or torts raise obvious First Amendment problems. News organizations get stuff wrong all the time, ranging from arguably unfair or misleading stories to demonstrably inaccurate reporting. If they were exposed to prosecution or lawsuits every time that happened, they either could not function at all or would feel compelled to avoid any reporting that might offend people with the political power or financial resources to punish them.
Even without considering the constitutional implications, Trump's lawsuit fails as a matter of statutory interpretation. Its definition of "consumers" includes more than 240 million eligible American voters, regardless of whether they have any commercial relationship with the Register. Its definition of "deception" and "unfair practices" encompasses every journalistic failure, unmoored from any purchase-related fraud.
"Election polls aim to provide insights into public thinking and potential behavior, not definitive election forecasts," said the American Association for Public Opinion Research. "Differences between polling results and election outcomes can and often do occur for reasons unrelated to misconduct or fraud."
Unsurprisingly, Register spokeswoman Lark-Marie Anton also rejected Trump's fraud allegation. "We have acknowledged that the Selzer/Des Moines Register pre-election poll did not reflect the ultimate margin of President Trump's Election Day victory in Iowa by releasing the poll's full demographics, crosstabs, weighted and unweighted data, as well as a technical explanation from pollster Ann Selzer," she said. "We stand by our reporting on the matter and believe this lawsuit is without merit."
They are not alone in believing that. "You would have to prove that a false statement was made and that the statement was made" with the intent that consumers would "rely on it," UCLA law professor Rick Hasen told The Washington Post. "If someone is accurately reporting the results of a poll, that wouldn't be a false statement. The poll might have errors in it, but that wouldn't be a false statement." Hasen added that the lawsuit's "somersaults" do not plausibly connect Trump's complaints to misrepresentations in connection with the sale of merchandise, which is the focus of the fraud statute.
The lawsuit "has no chance of success," Los Angeles entertainment attorney Camron Dowlatshahi said in an emailed press release. "The poll results were reported [accurately]," he noted, and the fact that "they did not reflect the ultimate outcome [for] the entire state…does not make the work of the pollster fall within the purview of a consumer protection statute intend[ed] to curb false advertising."
Why bother then? "I'm doing this not because I want to," Trump told reporters on Monday. "I'm doing this because I feel I have an obligation to….I shouldn't really be the one to do it. It should have been the Justice Department or somebody else, but I have to do it….Our press is very corrupt."
As Trump sees it, the U.S. Department of Justice, which he will soon oversee as president, should be policing the press to make sure it is telling the truth. Exactly how that would work is unclear: What statutes, specifically, would authorize the Justice Department to sue or prosecute news outlets for reporting that Trump views as inaccurate or unfair? More to the point, any such action would be blatantly unconstitutional. But Trump thinks he can achieve similar results by filing his own lawsuits.
"Trump is absolutely using lawfare to go after the media," Dowlatshahi said. "This is the playbook of the rich and powerful. They have the means to spend on meritless lawsuits, and their opponents don't. This leads to a chilling effect on free speech, given that if he files a lawsuit without merit, based on ridiculous claims, the defendants still generally must hire attorneys, and that can get very costly."
Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, noted the mismatch between Trump's claims and the statute on which he is relying. "Newspapers and polling firms are not engaged in 'deceptive practices' just because they publish stories and poll results President-elect Donald Trump doesn't like," he said. "Getting a poll wrong is not election interference or fraud." He called the lawsuit "absurd" and "a direct assault on the First Amendment."
