Decrying First Amendment Threat, FIRE Will Defend Pollster Whom Trump Sued for 'Consumer Fraud'
The president-elect frivolously claims that J. Ann Selzer and The Des Moines Register owe him damages because of an erroneous preelection poll.
After Donald Trump sued pollster J. Ann Selzer and The Des Moines Register under Iowa's Consumer Fraud Act last month, Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression (FIRE), called the president-elect's claims "absurd" and "a direct assault on the First Amendment." Acting on that assessment, FIRE this week announced that it will represent Selzer as she fights Trump's allegation that she defrauded consumers by conducting a preelection poll that erroneously gave Democratic nominee Kamala Harris a narrow lead in Iowa.
Trump's lawsuit, 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, "violates long-standing constitutional principles" and is "entirely meritless under the Iowa law," FIRE says. The organization describes the case as "the very definition" of a "strategic lawsuit against public participation" (SLAPP). Such lawsuits, it explains, "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." FIRE says the case also exemplifies "a worrying trend of activists and officials using consumer fraud lawsuits to target political speech they don't like."
Selzer conducted a presidential poll 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.
"Selzer's Iowa polls have long enjoyed 'gold standard' status, accurately predicting Donald Trump's victories in Iowa in 2016 and 2020," FIRE says. "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," FIRE adds. "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."
Selzer's admission of error was not good enough for Trump. His lawsuit argues that publication of the poll's surprising results, which generated wide news coverage, amounted to "brazen election interference" that violated Iowa's Consumer Fraud Act.
Trump's use of that statute, like his claim that CBS violated the Texas Deceptive Trade Practices Act by editing a 60 Minutes interview with Harris to make her seem slightly more cogent, is plainly frivolous. Both laws are aimed at fraud that harms consumers by misleading them in connection with the sale of products or services. Yet neither lawsuit explains how the press coverage that offended Trump falls into that category.
"Consumer fraud laws target sellers who make false statements to get you to buy something," FIRE notes. "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."
To make out a claim under Iowa's consumer fraud law, 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,'" FIRE says. "Selzer's poll did not advertise or solicit anything, much less [promote] 'consumer merchandise,' which Iowa law defines as that intended for 'personal, family, or household uses.'" Nor does conducting or publishing a poll constitute "election interference" under Iowa law, which includes "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."
Trump's claim that voters misled by the Register poll count as defrauded consumers under Iowa's law is inconsistent with the First Amendment as well as the statutory text. "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," FIRE says. "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."
FIRE notes that "a progressive nonprofit tried to use a Washington state consumer protection law in an unsuccessful lawsuit against Fox News over its COVID-19 commentary," while "attorneys general on the right" have "used the same 'we're just punishing falsehoods' theory to target progressive outlets." Texas Attorney General Ken Paxton, for example, is investigating the possibility that Media Matters for America violated his state's Deceptive Trade Practices Act by trying to steer advertisers away from X, which the organization criticized for allowing "content that touts Adolf Hitler and his Nazi Party." Media Matters "cannot show that any of its underlying speech is protected by the First Amendment," Paxton argues, "since one can constitutionally be liable for statements that are 'likely to mislead or confuse consumers,' even if the statements are 'literally true.'"
Even when a SLAPP seems doomed to fail on the merits, as with Trump's claims against Selzer and the Register, the process becomes the punishment for defendants because they must devote time and money to fending off the suit. That is why some states have enacted anti-SLAPP laws that require plaintiffs who file meritless lawsuits based on constitutionally protected speech to cover the defendants' legal expenses.
Since "Iowa is not among those states," FIRE says, it is "stepping in to represent Selzer and her polling company" pro bono against Trump's lawsuit. "Any attempt—by Democrats, Republicans, or anyone else—to punish and chill reporting of unfavorable news is an affront to the First Amendment," FIRE says. "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."
