The Volokh Conspiracy
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President Trump's Lawsuit Against Iowa Pollster Ann Selzer Thrown Out
From today's long decision by Iowa state trial court judge Scott Beattie in Trump v. Selzer [UPDATE: link fixed]:
J. Ann Selzer … conducted political polls in Iowa for nearly four decades. Three days before the 2024 general election, the Des Moines Register … published a Selzer poll showing Kamala Harris leading Donald Trump in Iowa and Christina Bohannan leading Mariannette Miller-Meeks in Iowa's First Congressional District. The poll proved wrong.
This case arises from that error. Donald J. Trump, Mariannette Miller-Meeks, and Bradley Zaun … sue in their private capacities. The Petition pleads a violation of the Iowa Consumer Fraud Act, fraudulent misrepresentation, and negligent misrepresentation, and asks the Court to enjoin the publication of any further deceptive polls.6 Both Defendants have moved to dismiss….
At its core, the Plaintiffs' Petition seeks to stretch both Iowa statutory and common law beyond their current bounds, turning speech that enjoys the highest category of First Amendment protection into a liability. After considering the parties' arguments, the Court must conclude that the protection is too great and the reach is too far….
[F]alsity alone does not create a category of unprotected speech. The Supreme Court has never recognized that false statements by themselves are not entitled to First Amendment protection, and it refused to do so when squarely presented with the opportunity. The Eighth Circuit held that even knowingly false campaign speech is not excluded from the Amendment's protection….
With a limited number of exceptions to the First Amendment protection, the Plaintiff must proceed under the fraud exception. The speech, however, must meet what the exception demands…. The fraud exception is narrow, and the proof requirements for a fraud claim exist precisely to safeguard protected speech. A false statement alone does not produce liability. Rather, the constitutional exception involves a false claim made to secure money or other valuable consideration….
1. The Iowa Poll Was Not a Provably False Statement of Fact.
A poll is simply an estimate…. It is based on a known methodology, and concerns an event that has not yet happened. Things of that nature are not the sort of things that can be said to be true or false in the manner required by the fraud exception. Opinion polls of random samples of voters are snapshots with margins of error, and campaigns are dynamic. A statement of conjecture about a future state of affairs is not provably false, even when the speaker is alleged to have known better….
2. No Representation Was Made to Plaintiffs, and No Plaintiff Parted with Anything in Reliance …
No Plaintiff pleads that J. Ann Selzer or Selzer & Company communicated with him or her, solicited anything from him or her, or had any relationship with any Plaintiff, arising out of contract or otherwise. No Plaintiff pleads that he or she purchased the Iowa Poll, subscribed to the Register because of the Poll, or gave anything of value to any Defendant because of the Poll. Plaintiffs merely plead that false statements were published to the public and that bad things ensued. Whatever that may be, that is not fraud….
The plaintiffs' answer was that they had actually suffered damages, including campaign expenditures to offset the Iowa Poll, and that this made their case different from U.S. v. Alvarez (2012), where the false statements gained the speaker nothing. The answer confuses two different requirements. That a plaintiff was harmed does not establish that the speech was used to obtain money or property from him. Alvarez itself makes the distinction, explaining that to permit liability for false speech absent any evidence that the speech was used to gain a material advantage would confer a censorial power unprecedented in the Court's cases and in our constitutional tradition. Plaintiffs allege consequences. They do not allege a transaction….
[T]he Iowa Poll and its reporting are fully protected political speech, and the Petition does not allege the elements that would place that speech within the fraud exception. The First Amendment bars [all the claims].
Second, and independently, the Petition states no claim under Iowa law. Count I [violation of the Iowa Consumer Fraud Act] alleges no prohibited act in connection with the advertisement, sale, or lease of consumer merchandise, no ascertainable loss of money or property, and no reliance. Count II [fraudulent misrepresentation] alleges no representation made to induce any Plaintiff to act and no act taken in reliance on the truth of the polls. Count III [negligent misrepresentation] alleges no duty running from a pollster or a newspaper to a candidate. Either ground would require the same result on its own.
Robert Corn-Revere and Conor Fitzpatrick (FIRE) represent Selzer.
