Trump's War on the Press
The president is arguing in court that journalism he doesn't like is "election interference" that constitutes consumer fraud.
A month before last November's presidential election, 60 Minutes aired an interview with Democratic nominee 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, the Republican nominee, 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, editing the Harris interview to make her seem slightly more cogent violated that state's Deceptive Trade Practices Act and caused Trump "at least" $10 billion in damages. A lawsuit that Trump filed against The Des Moines Register on December 16 follows the same playbook, claiming the newspaper's coverage of an inaccurate presidential poll violated a similar Iowa law.
In both cases, Trump—the man now elected president—implausibly describes news reporting as "election interference" that constitutes consumer fraud because it misleads viewers or readers. It is hard to overstate the threat to freedom of the press posed by such reasoning, which transforms journalism that irks Trump into a tort justifying massive damage awards.
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, explaining his motivation for suing CBS and the Register.
The lead defendant in the latter case is pollster J. Ann Selzer, who conducted a preelection 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.
Trump was outraged by the poll. "It's called suppression," he said at a rally in Pennsylvania the day after the Register reported that Harris had taken the lead in Iowa. "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 Iowa's Consumer Fraud Act.
Trump's use of that law, like his use of the Texas Deceptive Trade Practices Act, is plainly frivolous. Both laws are aimed at fraud that harms consumers by misleading them in connection with their purchases of products or services.
"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 the sort of commercial misrepresentations that the fraud statute covers.
Why bother then? "I'm doing this not because I want to," Trump told reporters. "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 [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. 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 clearly unconstitutional. But Trump thinks he can achieve similar results by filing his own lawsuits.
"Newspapers and polling firms are not engaged in 'deceptive practices' just because they publish stories and poll results Trump doesn't like," said Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, which is representing Selzer pro bono, in a statement. "Getting a poll wrong is not election interference or fraud." Corn-Revere called the "absurd" lawsuit "a direct assault on the First Amendment."
