Legal experts representing different ends of the political spectrum say newly elected President Donald Trump’s recent lawsuit against the Des Moines Register is based on a strained interpretation of Iowa law and is unlikely to succeed in court to have.
Trump filed suit on Dec. 16 against the Register, its parent company Gannett and longtime Iowa pollster Ann Selzer, alleging violations of the Iowa Consumer Fraud Act. The complaint focuses on a poll published by the Register in early November that underestimated Trump’s support, showing Vice President Kamala Harris with a three-point lead over Trump in Iowa just days before Trump carried the state with Won 13 points.
Trump’s lawsuit claims the poll was fraudulent and an attempt at election interference. The Register has said it stands by its work.
Several experts who reviewed Trump’s petition say his legal theory goes too far. Samantha Barbas, a professor and First Amendment expert at the University of Iowa College of Law, said Iowa’s consumer fraud law fits poorly with Trump’s complaint.
The Iowa Consumer Fraud Act “is intended to protect people who purchase goods or services, not people who consume news and other types of information,” Barbas said. “So this is completely far-fetched in my opinion, and other than Trump’s lawsuit here, and he has a similar case going on in Texas, I’m not aware of any parties that have used a consumer fraud statute to punish or charge newspapers to complain. for information they don’t like.”
The Texas case in question is one Trump filed against CBS News in November, alleging the network violated Texas’ consumer fraud statute by deceptively editing a “60 Minutes” interview with Harris. That lawsuit is still pending before a federal judge in Texas, and CBS has moved to have the case dismissed.
Iowa consumer law expert says lawsuit without precedent
Bill Brauch, a retired attorney who served as director of the Iowa attorney general’s consumer protection division from 1995 to 2015, said he is also not aware of any cases where Iowa law has been applied in this way.
“I’ve practiced law in this area for 30 years. I’ve never heard of anyone in the media being sued for publishing a story,” said Brauch, who is now chairman of the Polk County Democrats.
Brauch further questioned how a news article could fall within the definition of “merchandise” under Iowa law, which prohibits deception regarding the sale of “objects, commodities, goods, commodities, intangibles, securities, bonds, debentures , shares, real estate’. or services,” especially since the complaint does not allege that Trump actually purchased a copy of the newspaper.
“It’s challenging to argue that a story you don’t like in a newspaper somehow gives you cause for action for consumer fraud.” he said. “Who is the consumer who has been scammed? How could Donald Trump have been defrauded?”
The Washington court has rejected similar claims against Fox News
Eugene Volokh, a UCLA professor and fellow at the free-market Hoover Institution, wrote Dec. 18 for the libertarian-leaning publication Reason that “the First Amendment generally prohibits states from imposing liability for misleading or even outright false political statements, including in commercially distributed newspapers – and especially for predictive and evaluative judgments of the kind inherent in assessing public sentiment about a candidate.”
Volokh cited a 2020 case in Washington state courts in which a group sued Fox News, saying statements by its hosts, including Sean Hannity, dismissing or minimizing the COVID-19 pandemic violated that state’s consumer protection laws . Both the district and appellate courts in Washington rejected that claim, ruling that speech on a subject of public interest is core speech protected by the First Amendment.
“There are some historically recognized exceptions to First Amendment protections for knowing falsehoods, such as defamation, fraud and perjury. But those are intentional exceptions,” Volokh wrote. “Defamation is limited to knowing (or sometimes negligently making) falsehoods that damage the reputation of a particular person. Fraud is limited to statements that in themselves demand money or other tangible items of value. Perjury is limited to lies under oath in government proceedings .There is no general government power to punish political falsehoods beyond these limited exceptions.”
Lawsuit part of pattern of threats against the media, says professor
Barbas noted that Trump has a history of filing lawsuits against the media, usually filing defamation claims. That includes a lawsuit against ABC News, accusing anchor George Stephanopoulos of falsely claiming Trump was found liable for rape. ABC previously settled that lawsuit for $15 million in December.
“The law of defamation would not apply in this situation because before legal action for defamation can be taken, someone’s reputation must be damaged. And Trump couldn’t claim that his reputation was damaged by a poll that said he was behind the times. she said. “So his lawyers kind of reached for this unique theory of consumer fraud.”
Whether the new lawsuit, currently pending before a federal judge in Iowa, has merit or not, Barbas says subjecting media organizations to the threat of lawsuits could have a chilling effect.
“Trump and his allies have made a number of threats against news publications and book publishers in recent months, most notably threatening to sue for defamation over critical comments, and the ABC settlement has shown that Trump can get news organizations to essentially bowing down to him,” she says. said. “I think this has given him courage, as this lawsuit in Iowa seems to suggest, and I am confident there will be more similar lawsuits in the weeks and months to come.”
Nicholas A. Klinefeldt, an attorney representing the Des Moines Register in the case, said the First Amendment’s guarantee of freedom of the press, not a state law on consumer fraud, is the central principle. “In Iowa, elections are not consumer goods for sale. . “President Trump’s attempt to assert his ludicrous election interference theories through a claim under the Iowa Consumer Fraud Act will not stand,” Klinefeldt said. “The Iowa Consumer Fraud Act was intended to protect Iowa consumers and not to become a tool to intimidate the press. . We are confident that President Trump will fail in this effort.”
Trump’s presidential transition team did not respond to a request for comment.
William Morris covers courts for the Des Moines Register. He can be reached at wrmorris2@registermedia.com or 715-573-8166.
This article originally appeared in the Des Moines Register: Trump fraud case against Register unlikely to succeed, experts say
