This Ruling Does Not Bode Well for Trump's Attempt To Portray Journalism as Consumer Fraud

On Thursday, a federal judge dismissed a lawsuit that echoed Donald Trump's claims against the Des Moines Register and pollster Ann Selzer.

Last January, Dennis Donnelly, a longtime Des Moines Register subscriber, sued the newspaper and pollster Ann Selzer, alleging that they had committed multiple torts by conducting and publicizing a poll suggesting that the presidential contest between Donald Trump and Kamala Harris in Iowa was much closer than expected. On Thursday, a federal judge in Iowa dismissed that lawsuit with prejudice, deeming it inconsistent with the First Amendment. U.S. District Judge Rebecca Goodgame Ebinger also concluded that Donnelly had failed to properly plead any of his claims.

That decision in Donnelly v. Des Moines Register and Tribune Co. does not bode well for a similar lawsuit that Trump filed against Selzer and the Register last December. "A party cannot evade First Amendment scrutiny" by "simply labeling an action one for 'fraud,'" Ebinger notes. Yet that is exactly what Trump is trying to do when he portrays "fake news" as a form of consumer fraud.

If anything, Trump's fraud claims are even less plausible than Donnelly's. Donnelly, who sued on behalf of all Des Moines Register subscribers, actually has a commercial relationship with the newspaper. Trump, by contrast, does not seem to have any such connection with the Register or Selzer. But both lawsuits suffer from the same basic problem: Because they treat misleading journalism as actionable fraud, they amount to thinly veiled assaults on freedom of the press.

The poll at the center of both cases, which Selzer conducted in late October 2024, gave Harris a three-point lead over Trump in Iowa, a difference that was within the statistical margin of error. The Register reported the results two days before the election under the headline "Iowa Poll: Kamala Harris leapfrogs Donald Trump to take lead near Election Day."

By contrast, several other polls conducted around the same time gave Trump a lead of seven to nine points in Iowa. He ultimately won Iowa by 13 points.

The gist of Donnelly's complaint is that the Register and Selzer misled him and other readers about the state of the race in late October. But as Ebinger notes, he did not allege that Selzer's methodology "differed from the one disclosed in the accompanying article" or that the defendants "altered responses or weighed the sample in an attempt to produce a certain result." In fact, Donnelly noted that Selzer's Iowa Poll "is historically accurate and is the 'gold standard' for polling" in that state. But he thinks Selzer and the Register should have been skeptical of the surprising results because other polls painted a different picture.

Is that sort of journalistic failure enough to strip Selzer and the Register of the constitutional protection that ordinarily would apply to their work? Ebinger thinks not. "Each of Donnelly's claims must satisfy First Amendment scrutiny," she notes, "because 'there is no free pass around the First Amendment.'"

The defendants argued that they were entitled to "absolute immunity" from Donnelly's claims, which they described as "a frontal assault on the First Amendment." Donnelly argued that he could prevail by showing "actual malice," the standard that applies to defamation claims by public figures.

Finding the relevant case law unclear, Ebinger applies the "actual malice" test but concludes that Donnelly has failed to meet it. "Actual malice requires showing 'sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [their] publication,'" she writes. It is not enough to argue that a "reasonably prudent" person would not have published an article or that he "would have investigated before publishing." To show a "reckless disregard for the truth," a plaintiff must do more than allege that the defendant failed to "recognize a mistake or ambiguity and its potential consequences."

At this stage of the case, Ebinger says, Donnelly had to allege "non-conclusory" and "non-speculative" facts "sufficient to give rise to a reasonable inference of actual malice." She says he clearly failed to do so.

Donnelly suggested that Selzer and the Register "designed the poll's methodology to produce an intentionally inaccurate result and knowingly published the inaccurate result," Ebinger notes. But "no specific facts have been alleged to support such a
theory."

That failure, Ebinger says, dooms all of Donnelly's claims. She nevertheless addresses each one separately.

"Donnelly alleges fraudulent misrepresentation of the state of the election," Ebinger writes. "Under Iowa law, a claim for fraudulent misrepresentation requires a plaintiff to show: 1) a representation was made; 2) the representation was false; 3) the representation was material; 4) the defendant knew the representation was false; 5) the defendant intended to deceive the plaintiff; 6) the plaintiff acted in reliance on the truth of the representation and that reliance was justified; and 7) the representation was a proximate cause of plaintiff's damages."

Donnelly's claim fails right out of the gate, Ebinger says, because "no false representation was made." The defendants "conducted a poll using a particular methodology which yielded results that later turned out to be different from the event the poll sought to measure," she writes. But "the results of an opinion poll are not an actionable false representation merely because the anticipated results differ from what eventually occurred."

Donnelly "does not claim the disclosed methodology was not followed, that results were falsified, or that Defendants altered the poll in some other way which did not reflect the publicly disclosed methodology," Ebinger notes. "Defendants told readers exactly what they did and how they did it." Donnelly "fails to cite to any authority finding an opinion poll [regarding] a future event constitutes a false factual assertion."

Donnelly also alleges "negligent misrepresentation to a reckless degree." That claim requires a plaintiff to show that the defendant, by virtue of his profession and his relationship to the plaintiff, had a "duty of care."

The Iowa Supreme Court has said "professionals such as accountants, abstractors, and attorneys owe a duty of care in supplying information to foreseeable third parties as members of a limited class of persons who would be contemplated to use and rely upon the information." But that duty extends only to "a person in the profession of supplying information for the guidance of others" who "acts in an advisory capacity," is "manifestly aware of the use [to which] the information will be put," and "intends to supply it for that purpose."

Donnelly's negligent misrepresentation claim "fails because a pollster and a general
circulation newspaper reporting on the results of an election poll are not in the business or profession of supplying information to a limited class of others who [they know will] rely on the information," Ebinger says. "The relationship between a newspaper and the public is fundamentally different from the relationship between an accountant or attorney and his or her client. There is no 'limited class of persons' a newspaper contemplates will use the information the paper publishes."

Donnelly asserted that Selzer and the Register violated the Iowa Consumer Fraud Act, which prohibits "unfair" or "deceptive" practices "in connection with the advertisement, sale, or lease of consumer merchandise." That claim, Ebinger says, "fails because publishing the results of a political opinion poll that matches the co-published methodology is not an unfair or deceptive practice."

An "unfair practice" entails "substantial and unavoidable injury to consumers." That did not occur here, Ebinger says.

Donnelly claimed the defendants promised "trustworthy, accurate news" and "knowingly or recklessly failed to deliver that product" by "blowing their biggest story of the year." Under Iowa law, "a course of conduct contrary to what an ordinary consumer would anticipate contributes to a finding of an unfair practice." But "ordinary customers of the Des Moines Register would expect the paper to publish the Iowa Poll as it has done for decades," Ebinger writes. "Consumers would expect the poll to be conducted commensurate with the methodology accompanying the poll. Consumers would understand from the methodology statement, as well as the inherently uncertain nature of opinion polling, that polling is an inexact science which can yield errant results in prognosticating future election results."

Donnelly "cites to no law which establishes that mere inaccuracy of an opinion poll constitutes an unfair practice," Ebinger notes. "Donnelly's assertion is also internally contradictory as such a standard would mean every [pollster] cited favorably by Donnelly was similarly engaged in an unfair practice because they too published polls which did not accurately forecast the election outcome."

To establish "deception," a plaintiff must show that "an act or practice" was "likely to mislead a substantial number of consumers as to a material fact or facts." Deception "therefore necessarily requires the false statement or material omission of a fact," Ebinger writes. "Donnelly does not allege any misrepresentation with regard to either the methodology statement or the poll results…No factual information regarding how the poll was conducted was withheld from readers. The article fully described the poll results [and the] the poll methodology, and provided additional analysis of the surprising nature of the results."

Donnelly claimed Selzer and the Register engaged in "professional malpractice." But he "fails to allege the necessary element of duty," Ebinger says.

Donnelly argued that the defendants owed Register readers "the ordinary care of a
journalist or pollster," which would have entailed recognizing "the obvious problems with the Iowa Poll." But "the nature of the relationship between newspapers and their readers…does not impose such a general duty," Ebinger writes. "Donnelly fails to cite
to any Iowa law imposing such a duty on newspapers, and courts generally find no such duty exists." She quotes one of those decisions, which concluded that "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."

To illustrate the implications of imposing such a legal duty, Ebinger cites a 1999 decision rejecting the proposition that the Weather Channel could be held liable for an inaccurate forecast. The judge noted "the litany of absurd suits which could follow from imposing such a duty, such as construction workers suing when they pour concrete in reliance on a weather report forecasting no rain or commuters suing when they are stuck in traffic and late to work because the news reported there would be light traffic," Ebinger writes. "Finding for Donnelly here would permit similar absurdity."

Finally, Donnelly argued that Selzer and the Register were guilty of "interference with the right to vote." In support of that claim, he cited a 1911 Iowa case involving local officials who prevented someone from voting. The outcome hinged on "the proper interpretation of the Iowa Code section governing voter eligibility," Ebinger notes, and the decision "makes no mention of a cognizable tort under Iowa law for interference with the right to vote." Donnelly "cites to no other Iowa law establishing such a tort."

Like Donnelly's lawsuit, Trump's complaint against Selzer and the Register alleged "fraudulent misrepresentation," "reckless negligent misrepresentation," and violations of the Iowa Consumer Fraud Act. "The claims are essentially identical," notes Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, which represents Selzer.

Trump's case, like Donnelly's, was assigned to Ebinger. But on September 30, he asked her to dismiss it without prejudice. She initially resisted but was overruled by the U.S. Court of Appeals for the 8th Circuit last week. "Right now," Corn-Revere says, "the question in the Trump case is about whether it will remain in federal court."

Corn-Revere nevertheless welcomed Ebinger's ruling in Donnelly's case. "This decision shows where petty politics ends and the rule of law begins," he said in a press release. "The court's strongly worded opinion confirms that a legal claim cannot be concocted with political slogans and partisan hyperbole, and that there is no hiding from the First Amendment. This is a good day for freedom of speech."