Trump v. Selzer: Donald Trump Sues Pollster J. Ann Selzer for ‘Consumer Fraud’ Over Iowa Poll

The First Amendment protects speech about political affairs, even when officials — whether it’s your local mayor or the President of the United States — claim it’s false. That’s been true since America’s youth, when American jurors rejected a British governor’s attempt to use libel laws to censor a newspaper and Thomas Jefferson pushed back against the Sedition Act, which criminalized criticism of the government.

After Donald Trump comfortably won Iowa, pollster J. Ann Selzer owned up to the margin between her poll and the eventual outcome of Trump comfortably winning Iowa. 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. 

Nevertheless, Trump filed a performative lawsuit against pollster J. Ann Selzer and The Des Moines Register, arguing that publishing a poll predicting a win by Kamala Harris amounted to “consumer fraud.” Trump seeks triple monetary damages and an injunction against the publication of future “deceptive” polls.

Trump’s lawsuit, which he claimed was going to “straighten out the press,” is simply another misguided attempt to claim that “false” political speech can be punished by the government through its courts. But the government’s ability to punish “false” speech is exceedingly narrow (defamation, for example, is not protected) and none of the few circumstances where “false” speech can be regulated are applicable here. Publishing a poll — a prediction about a future election result — is not “consumer fraud” under Iowa’s statute, which is geared toward conduct like rolling back the odometer on a used car. Nor is it “interference” with an election under Iowa law, which is limited to conduct like submitting a “counterfeit official election ballot” and other forms of direct interference with the conduct of an election. Publishing a poll is protected speech under the First Amendment.

In keeping with similar cases brought by Trump, the lawsuit is a SLAPP — a Strategic Lawsuit Against Public Participation, the legal tactic of filing a baseless lawsuit and forcing a defendant to spend time and money to get it dismissed. SLAPP suits are intended to make it costly to criticize the plaintiff (even if the plaintiff loses), chilling speech. While some states have anti-SLAPP statutes that deter such suits by forcing a losing plaintiff to pay the defendants’ attorney’s fees, Iowa does not have such a statute.

FIRE came to Selzer’s defense, providing her with free legal representation to fight Trump’s lawsuit. In doing so, FIRE is helping to prevent the use of SLAPPs, taking the cost of attorneys’ fees off the table. When you have to pay attorneys’ fees to defend your free speech, your speech is not free.