‘The lawsuit is the punishment’: Reflections on Trump v. Selzer — First Amendment News 453

“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” — Donald J. Trump

That is the kind of mindset that lies in wait to ambush First Amendment values. Its aim: punitive. Its logic: force those who disagree with you to pay — literally! Its motivation: intimidation. Its endgame: muzzling critics.

That kind of mindset is a form of cancel culture, insofar as once such practices are allowed to stand, the net effect is to chill critics into numbing silence.

“Donald Trump is abusing the legal system to punish speech he dislikes. If you have to pay lawyers and spend time in court to defend your free speech, then you don't have free speech.” — FIRE attorney Adam Steinbaugh

As presented, that assertion helps to explain Trump v. Selzer — and a similar suit filed by The Center for American Rights, who are suing The Des Moines Register, its parent company Gannett, and Selzer. The case arises out of a flawed election poll conducted by the noted pollster J. Ann Selzer. As published in The Des Moines Register, she had Kamala Harris leading Donald Trump by three percentage points in Iowa. She was off — way off! Trump won the state by 13 points and then went on to a sizable victory nationwide. Hence, the Center for American Rights’ allegation that Selzer’s poll and the Register’s publication of it were “intentionally deceptive” or done with reckless disregard of the truth — a high bar to meet.

Though Trump prevailed in the presidential election, and roundly so, he thereafter sought damages for the poll prediction that had him behind. Even after his victory, the very idea of that poll offended him.

The injury to Selzer’s reputation over the mistaken prediction was not enough. Selzer and the Register found themselves on the wrong end of a lawsuit first filed by Alan R. Ostergren on behalf of the former president and now president-elect. Here are two key parts of what was alleged as a cause of action:

This action, which arises under the Iowa Consumer Fraud Act, Iowa Code Chapter 714H, including § 714H.3(1) and related provisions, seeks accountability for brazen election interference committed by the Defendants in favor of now-defeated former Democrat candidate Kamala Harris (“Harris”) through use of a leaked and manipulated Des Moines Register/Mediacom Iowa Poll conducted by Selzer and S&C, and published by DMR and Gannett in the Des Moines Register on November 2, 2024 (the “Harris Poll”) (boldness added)

However, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson (1989).

FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101

News

A polling miss isn’t ‘consumer fraud’ or ‘election interference’ — it’s just a prediction and is protected by the First Amendment.

Read More

As FIRE's Adam Steinbaugh and Conor Fitzpatrick have observed:

The lawsuit is the very definition of a “SLAPP” suit — a Strategic Lawsuit Against Public Participation. Such tactical claims are filed purely for the purpose of imposing punishing litigation costs on perceived opponents, not because they have any merit or stand any chance of success. In other words, the lawsuit is the punishment. And it’s part of a worrying trend of activists and officials using consumer fraud lawsuits to target political speech they don’t like.

Steinbaugh and Fitzpatrick offer a compelling critique of this lawsuit, why it is statutorily and constitutionally flawed, and why it is more punitive in nature than persuasive in law. Their critique points to the need for a national Anti-SLAPP law similar to the ones that currently exist in some 34 states (Iowa is not one of them).

FIRE, with Robert Corn-Revere as the lead counsel, is representing Selzer. Revere tagged the Trump lawsuit as “absurd” and “a direct assault on the First Amendment.”

One need not be called to the witness stand in defense of George Stephanopoulos’ journalism to concede that the former president could well have a basis to seek legal relief against those who actually defame or otherwise cause him cognizable injury (see FAN 451) — or, consistent with Time, Inc. v. Hill (1967), that he might be able to demonstrate a reckless disregard for the truth.

But Trump v. Selzer is a difficult case to fit into that legal peg. 

Five Suspect Arguments

1. The Tale of Two Predictions Argument: In both 2016 and 2020, Ann Selzer predicted Trump’s Iowa victories. In 2024, the Register commissioned her to do another poll and she predicted a Harris victory by a small margin — using the same methodology. Despite this, she and her publisher were slapped with two lawsuits. Can this really be the basis (albeit unstated) for a call to legal action?

2. The Fraudulent Consumer Fraud Argument: The Iowa consumer fraud law pertains to deceit in the context of the advertisement or sale of “commercial merchandise.” Does polling information check that conceptual box? Is it a commercial “service” in the same way that fraudulently providing home insurance would be? Is the product that a newspaper produces “merchandise” as that word is commonly used? As a matter of statutory construction (duly mindful of overbreadth concerns), should courts conflate laws made to regulate commerce with political speech? Is the legal supervision of the marketplace of goods to be the same as in the marketplace of ideas? To quote Eugene Volokh:

“I’m far from sure that, as a statutory matter, the Iowa consumer fraud law should be interpreted as applying to allegedly deceptive informational content of a newspaper, untethered to attempts to sell some other product.” 

3. The No-Guidelines False Political Speech Argument: Once the government has elected to punish political speech by civil or criminal laws, what are the exact guidelines for determining falsity? And how great does such falsity have to be? Are such calls to be made by lawmakers or judges? Of all political figures, Donald Trump should be quite apprehensive of such arguments — given all the false speech he has been accused of disseminating.

4. The Demand to Punish Newspapers for False Political Speech Argument: If the Press Clause of the First Amendment is to have any functional meaning, and if the era of sedition laws has taught us anything, it is that when it comes publishing political speech a news story is not, generally speaking, to be judged as being the same as the speech of a shyster used-car salesperson. Absent strong safeguards, allowing punitive or treble damages for political speech takes on a dangerous meaning when it comes to the Press. To again draw on Volokh:

“[T]he First Amendment generally bars states from imposing liability for misleading or even outright false political speech, including in commercially distributed newspapers — and especially for predictive and evaluative judgments of the sort inherent in estimating public sentiment about a candidate.”

And then there is this argument proffered by Laura Belin:

“[T]he suit alleges that a story within the newspaper was misleading, therefore making the sale or advertisement of the newspaper misleading. In other words, they are attacking the content of the newspaper, not the sale or advertisement of the newspaper itself. The content of a media source, other than an advertisement for merchandise it might contain, is subject to strong First Amendment protection.”

Moreover, such lawsuits create “an environment,” said Seth Stern, director of advocacy for the Freedom of the Press Foundation, “where journalists can’t help but look over their shoulders knowing the incoming administration is on the lookout for any pretext or excuse to come after them.”

5. The Need to Deter “Radical” Pollsters Argument: The complaint seeks the relief it does (injunctive and otherwise) in order “to deter Defendants and their fellow radicals” from continuing to skew “election results.” And if alleged consumer falsity is the norm in the political speech realm (with the requisite intent, of course), will that not have an enormous chilling effect on all election pollsters? And what newspapers or other media outlets would be willing to publish election poll predictions if the liability Sword of Damocles hovered over their heads? And what of those campaigning for political office?

Related

• Eugene Volokh, “Trump v. CBS Broadcasting Inc. Likely Going Nowhere,” The Volokh Conspiracy (Nov. 11)
• Rick Hasen, “Experts: Trump’s use of consumer fraud law to sue Des Moines Register unlikely to succeed,” Election Law Blog (Dec. 24)
• WASHLITE v. Fox News (Ct. App, WA, 2021)

Full Disclosure

Robert Corn-Revere, FIRE’s chief counsel, represented me pro bono in a 2003 petition to the governor of New York to posthumously pardon Lenny Bruce. While FIRE hosts FAN, the content of this newsletter is determined free of any and all influence by FIRE.

The TikTok case

• “Supreme Court Seems Likely to Uphold a Law That Could Ban TikTok in the US,” First Amendment Watch (Jan. 13)

The Supreme Court on Friday seemed likely to uphold a law that would ban TikTok in the United States beginning Jan. 19 unless the popular social media program is sold by its China-based parent company.

Hearing arguments in a momentous clash of free speech and national security concerns, the justices seemed persuaded by arguments that the national security threat posed by the company’s connections to China override concerns about restricting the speech either of TikTok or its 170 million users in the United States.

Early in arguments that lasted more than two and a half hours, Chief Justice John Roberts identified his main concern: TikTok’s ownership by China-based ByteDance and the parent company’s requirement to cooperate with the Chinese government’s intelligence operations.

If left in place, the law passed by bipartisan majorities in Congress and signed by President Joe Biden in April will require TikTok to “go dark” on Jan. 19, lawyer Noel Francisco told the justices on behalf of TikTok.

Forthcoming book on ‘campaign to protect the powerful’

• David Enrich, “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful,” Mariner Books (March 11, 2025)

The #1 bestselling author of Dark Towers, Enrich produces his most consequential and far-reaching investigation yet: an in-depth exposé of the broad campaign — orchestrated by elite Americans — to overturn 60 years of Supreme Court precedent, weaponize our speech laws, and silence dissent.

It was a quiet way to announce a revolution. In an obscure 2019 case that the Supreme Court refused to even hear, Justice Clarence Thomas raised the prospect of overturning the legendary New York Times v. Sullivan decision. Though hardly a household name, Sullivan is one of the most consequential free speech decisions, ever. Fundamental to the creation of the modern media as we know it, it has enabled journalists and writers all over the country — from top national publications and revered local newspapers to independent bloggers — to pursue the truth aggressively and hold the wealthy, powerful, and corrupt to account.

Thomas’s words were a warning — the public awakening of an idea that had been fomenting on the conservative fringe for years. Now it was going mainstream. From the Florida statehouse to small town New Hampshire to Trump himself, this movement today consists of some of the world’s richest and most powerful people and companies, who believe they should be above scrutiny and want to silence or delegitimize voices that challenge their supremacy. Indeed, many of the same businessmen, politicians, lawyers, and activists are already weaponizing the legal system to intimidate and punish journalists and others who dare criticize them.

In this masterwork of investigative reporting, David Enrich, New York Times Business Investigations Editor, traces the roots and reach of this new threat to our modern democracy. Laying bare the stakes of losing our most sacrosanct rights, Murder the Truth is a story about power — the way it’s used by those who have it, and the lengths they will go to avoid it being questioned. 

Douek and Lakier vs Volokh on private power and free speech

• Evelyn Douek and Genevieve Lakier, “Lochner.com?” Harvard Law Forum (2024)
• Eugene Volokh, “Free Speech and Private Power,” Harvard Law Forum (2024)

New scholarly article on revenge porn and more

• Zachary Starks-Taylor and Jamie Miller, “Politicians Live on Camera: Revenge Porn, Elections, and the First Amendment,” New York University Law Review (2024)

Since our nation’s founding, the private sex lives of politicians have been a consistent topic of public concern. Sex scandals, such as those involving Alexander Hamilton, Bill Clinton, and Donald Trump, have consumed the focus of the public. With the advent of the internet and social media, a new dimension has been added to that conversation: now, details of a politician’s sex life often come accompanied by photo or video evidence. Outside of the election context, when someone shares an individual’s private explicit material without their consent, they have committed the crime of “revenge porn.” 

Recent high-profile incidents have raised the question of whether the crime of revenge porn can still be prosecuted when the disclosure of private explicit materials involves a political candidate. In the election context, unique First Amendment concerns about chilling political speech result in heightened speech protections. Before prosecuting a case, prosecutors must grapple with the question: Does the First Amendment protect revenge porn when it is used to influence an election? This essay argues that the special First Amendment concerns about elections are diminished in the revenge porn context: the statutes are already tailored to address those concerns, and the state’s independent interest in enforcing revenge porn laws is still compelling. As such, it concludes that the First Amendment should not have extra force in a revenge porn case just because the disclosure occurred in the context of an election.

New Book on ‘rethinking free speech’

• Peter Ives, “Rethinking Free Speech,” (Fernwood Publishing, 2024)

Clashes over free speech rights and wrongs haunt public debates about the state of democracy, freedom and the future. While freedom of speech is recognized as foundational to democratic society, its meaning is persistently misunderstood and distorted. Prominent commentators have built massive platforms around claims that their right to free speech is being undermined. Critics of free speech correctly see these claims as a veil for misogyny, white-supremacy, colonialism and transphobia, concluding it is a political weapon to conserve entrenched power arrangements. But is this all there is to say?

Rethinking Free Speech will change the way you think about the politics of speech and its relationship to the future of freedom and democracy in the age of social media. Political theorist Peter Ives offers a new way of thinking about the essential and increasingly contentious debates around the politics of speech. Drawing on political philosophy, including the classic arguments of JS Mill, and everyday examples, Ives takes the reader on a journey through the hotspots of today’s raging speech wars.

In its bold and careful insights on the combative politics of language, Rethinking Free Speech provides a map for critically grasping these battles as they erupt in university classrooms, debates around the meaning of antisemitism, the “cancelling” of racist comedians and the proliferation of hate speech on social media. This is an original and essential guide to the perils and possibilities of communication for democracy and justice.

‘So to Speak’ podcast interview with author of ‘Rethinking Free Speech’

View video

• “Rethinking free speech with Peter Ives,” FIRE (Jan. 9)

Is the free speech conversation too simplistic?

Peter Ives thinks so. He is the author of “Rethinking Free Speech,” a new book that seeks to provide a more nuanced analysis of the free speech debate within various domains, from government to campus to social media.

Ives is a professor of political science at the University of Winnipeg. He researches and writes on the politics of “global English,” bridging the disciplines of language policy, political theory, and the influential ideas of Antonio Gramsci.

More in the news

• Noah Feldman, “Texas Porn Law Has a First Amendment Problem,” Bloomberg (Jan. 14)
• Jason Kelley, “Five Things to Know about the Supreme Court Case on Texas’ Age Verification Law,” Electronic Frontier Foundation (Jan. 13)
• Jeffrey Wald, “It’s Time for the Supreme Court to Reverse Ashcroft,” First Things (Jan. 13)
• Eugene Volokh, “N.H. Court Rejects Attempt to Impose Hate Crime Liability on Neo-Nazis for Hanging ‘Keep New England White’ Sign on Overpass,” The Volokh Conspiracy (Jan. 11)
• “Judge Scraps Biden’s Title IX Rules, Reversing Expansion of Protections for LGBTQ+ Students,” First Amendment Watch (Jan. 10)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided 

• Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
• Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)

Review granted

• Free Speech Coalition, Inc. v. Paxton (arguments: Jan. 15)
• TikTok Inc. and ByteDance Ltd v. Garland
• Firebaugh v. Garland

Pending petitions

• 360 Virtual Drone Services LLC v Ritter
• Turco v. City of Englewood, New Jersey
• Coalition Life v. City of Carbondale

Petitions denied

• RJ Reynolds Tobacco Co. v. FDA
• Smith v. Stillie
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Henderson v. Texas
• Nassif v. United States

Last scheduled FAN

FAN 452: “Stephen Rohde: Federal court rejects lawsuit by Jewish parents and teachers that labelled an ethnic studies curriculum ‘anti-Semitic’ and ‘anti-Zionist’”

This article is part of First Amendment News, an editorially independent publication edited by Ronald KL Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.