Trump Tries To Carve Out a First Amendment Exception for 'Fake News'
The president's portrayal of journalism he does not like as consumer fraud is legally frivolous and blatantly unconstitutional.
"Fake News is an UNPARDONABLE SIN!" President Donald Trump declares in a Truth Social rant inspired by the cancellation of Joy Reid's MSNBC show. "This whole corrupt operation is nothing more than an illegal arm of the Democrat Party. They should be forced to pay vast sums of money for the damage they've done to our Country."
Trump's claim that journalism he does not like is "illegal" and constitutes a tort justifying massive civil damages should be familiar by now. He has made such claims not only in social media posts but also in actual lawsuits against news organizations. As the Foundation for Individual Rights and Expression (FIRE) explains in a motion filed last Friday, these chilling attempts to convert Trump's complaints about press coverage into causes of action are legally baseless and blatantly unconstitutional.
Last October, Trump sued CBS in Texas, claiming that its editing of a 60 Minutes interview with Kamala Harris constituted consumer fraud that had caused him "at least" $10 billion in damages. In December, he filed a similar lawsuit against The Des Moines Register and pollster Ann Selzer in Iowa, claiming a voter survey that erroneously predicted a Harris victory in that state likewise amounted to consumer fraud.
FIRE, which represents Selzer in the latter case, notes that the Supreme Court has recognized several narrowly defined exceptions to the First Amendment, including "obscenity, child pornography, defamation, fraud, incitement, fighting words, and speech integral to criminal activity." Trump is trying to carve out an additional exception for "fake news," which 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.
"In the United States," FIRE Chief Counsel Robert Corn-Revere notes in a motion to dismiss Trump's claims against Selzer, "there is no such thing as a claim for 'fraudulent news.' No court in any jurisdiction has ever held such a cause of action might be valid, and few plaintiffs have ever attempted to bring such outlandish claims." While the "fake news" label "may play well for some on the campaign trail," Corn-Revere writes, it "has no place in America's constitutional jurisprudence." Trump's lawsuit, he says, is "a transparent attempt to punish news coverage and analysis of a political campaign, speech that not only is presumptively protected but 'occupies the highest rung of the hierarchy of First Amendment values.'"
The object of Trump's ire is a poll that Selzer conducted for the Register shortly before the 2024 presidential election. Unlike other polls and Selzer's previous surveys, all of which found that Trump was ahead in Iowa, this one gave Harris a three-point lead. That poll, which the Register published on the Saturday before the election, turned out to be off by more than a little: Trump won Iowa by a 13-point margin.
"It's called suppression," Trump said at a rally in Pennsylvania the day after the Register reported Selzer's results. "And it actually should be illegal."
In fact, according to Trump, it was illegal. In a complaint he filed in the Iowa District Court for Polk County on December 16, Trump averred that Selzer's poll violated that state's Consumer Fraud Act, which prohibits deceptive practices "in connection with the advertisement, sale, or lease of consumer merchandise." At the defendants' request, the case was transferred to the U.S. District Court for the Southern District of Iowa. In an amended complaint on January 31, Trump added common law claims of fraudulent and negligent misrepresentation.
That complaint was joined by two additional plaintiffs: Rep. Mariannette Miller-Meeks (R–Iowa) and former state Sen. Bradley Zaun (R–Urbandale). Miller-Meeks' beef was similar to Trump's: Although Selzer's poll gave Miller-Meeks' opponent a 16-point lead, she ultimately won reelection by two-tenths of a point. Zaun's grievance was more mysterious, since Selzer had not polled his race, which he lost by four points. The complaint nevertheless claims the poll "impacted" his campaign. It also notes that he "read the election coverage at issue in this action," which it says deceived him as a voter and Trump campaign contributor.
None of these plaintiffs suffered any cognizable damages under the Iowa Consumer Fraud Act (ICFA). "Plaintiffs have no claim under the ICFA against Selzer because they do not allege that they purchased or leased anything from Selzer," Corn-Revere writes. "The ICFA is a consumer fraud statute designed to protect Iowa consumers deceived into buying or leasing a product. It provides a cause of action for victims of 'deception' and 'fraud' 'in connection with the advertisement, sale, or lease of consumer merchandise.' And it allows consumers to recover damages if they suffer an 'ascertainable loss of money or property as the result' of that deception or fraud. Plaintiffs allege no 'fraud' or 'deception' to induce them into a transaction with Selzer, nor do they allege any 'ascertainable loss of money or property.'"
Trump et al.'s common law claims are invalid for similar reasons. "Fraudulent misrepresentation" refers to "a situation where a defendant lies to induce a plaintiff into a transaction to the plaintiff's detriment," Corn-Revere notes. Yet "Selzer made no actionable representation 'to the Plaintiffs,'" and Trump et al. "have not alleged the Iowa Poll was 'material' to an inducement directed to Plaintiffs by Selzer." They "similarly do not allege Selzer intended to induce them into a transaction."
A claim of "negligent misrepresentation" likewise requires that the plaintiff suffered damages because, in completing a transaction, he "reasonably relied" on information that the defendant "knew or reasonably should have known" was false. It also requires that "the defendant intended to supply information to the plaintiff or knew that the recipient intended to supply it to the plaintiff." Even if we assume Selzer knew or should have known her poll results were off, none of the other criteria is met.
As with the ICFA claim, Trump et al. could not have relied on false information in completing a transaction with Selzer because there was no transaction. And while the plaintiffs argue that they "justifiably relied" on the poll results, they also describe it as an "outlier" that defied "common sense, electoral history, [and] all other public polls." They claim Selzer had a history of underestimating Republican support, and they say "any responsible pollster or journalist with experience in Iowa politics would recognize" the poll's "clear inaccuracy." Trump et al. are "so desperate to spike the football regarding Selzer's polling inaccuracies," Corn-Revere says, that they "aggressively concede the element of reliance."
In any case, Selzer did not intend to "supply the information" to Trump et al., and she had no special "duty of care" to them. "If a newspaper prints incorrect information, if a scientist publishes careless statements in a treatise, or if an oil company prints an inaccurate road map, they cannot be 'liable' to those of the general public who read their works absent some special relationship between [the] writer and reader," the U.S. Court of Appeals for the 5th Circuit observed in a 1971 decision that Corn-Revere quotes. While "accuracy in news reporting is certainly a desideratum," a federal judge in New Jersey noted seven years later, "imposing a high duty of care on those in the business of news dissemination and making that duty run to a wide range of readers or TV viewers would have a chilling effect which is unacceptable under our Constitution."
Trump et al. also "fail to allege recoverable damage," the FIRE motion says. As candidates, Trump and Miller-Meeks claim, they had to "expend extensive time and resources," including "direct federal campaign expenditures," to "counteract the harms" caused by Selzer's poll. "But they filed this lawsuit in their personal capacities, and the Supreme Court has made clear that a campaign is 'a legal entity distinct from the candidate,'" Corn-Revere writes. "Mr. Trump and Ms. Miller-Meeks allege no cognizable harm to them as individuals from the Iowa Poll, so they have not [pled] the element of damages."
Zaun's damage claims "are even more implausible (if that is possible)," the motion says. "Mr. Zaun does not explain what those damages are, nor does he explain how he could have suffered financial damage from a poll that did not mention him or poll his race. Even if he had offered some explanation, there's no causation for damages consisting of losing elections."
In short, Trump et al. "try to shoehorn their claims" into an existing category of constitutionally unprotected speech by "calling the Iowa Poll 'fake' and asserting actionable 'fraud' occurred," Corn-Revere writes. He quotes "the famous words of Inigo Montoya" in The Princess Bride: "You keep using that word. I do not think it means what you think it means." The plaintiffs' "allegations about polls and news stories they dislike," Corn-Revere says, "have nothing to do with fraud."
Trump et al. "also sprinkle the complaint with loose talk of 'election interference,'" the motion notes. They "wield the terms 'election interference' and 'fraud' like an alchemist's incantation, hoping to transform their political dross into legal gold. But no amount of vacuous repetition can convert their expansive concept of 'fake news' to the very limited and specific legal concept of fraud. The Supreme Court has made clear that slapping the 'fraud' label on a claim cannot satisfy the specific showing required or extinguish the First Amendment."
Given the flagrant frivolousness of these claims, you might wonder, why is Trump pressing them? As he explains it, he is determined to "straighten out the press" one way or another. "I shouldn't really be the one to do it," he told reporters in December. "It should have been the Justice Department or somebody else. But I have to do it [because] our press is very corrupt."
As Trump sees it, the U.S. Department of Justice should be policing the press to make sure it is telling the truth. While any such program would be clearly unconstitutional, Trump thinks he can achieve similar results by filing his own lawsuits.
He's not wrong. Trump's consumer fraud complaint against CBS, which the network accurately described as "completely without merit," is at least as ridiculous as his consumer fraud complaint against Selzer and the Register. Maybe more ridiculous, since it does not involve any actual journalistic failure: The gravamen of Trump's grievance is that 60 Minutes edited its interview with Harris to make her response to a question about Israel seem slightly more cogent. Yet Paramount, which owns CBS, reportedly is keen to appease Trump by settling that laughable lawsuit because the company worries that the phony controversy over the interview could jeopardize its pending merger with Skydance Media.
When you are president of the United States, it turns out, you can intimidate major news outlets simply by suing them, no matter how absurd your legal arguments are. Trump was always rich enough to bankroll lawsuits that imposed costs on people whose speech offended him even when they had not said anything that remotely resembled a tort. Now that his wealth is complemented by the vast powers of the executive branch, he has even less reason to worry that his litigation makes no sense.
