You may recall that after he had won the 2024 Presidential election, the sorest winner in the history of sore winners, Donald Trump sued retiring pollster Ann Selzer and the Des Moines Register for… having reported the — admittedly surprising and, in retrospect, wildly off — poll results suggesting that Kamala Harris actually had a chance to win over Donald Trump in Iowa. As we pointed out at the time, this was utter nonsense for multiple fairly obvious reasons. Poll data isn’t defamatory. It’s just the result of a poll. Also, what fucking damages could he possibly argue, given that he won?
Anyway, an Iowa state judge has now dismissed the case, while calling out what kind of chilling effects allowing it to proceed would have had on speech. The ruling is pretty thorough and fairly obvious, even if it sucks that Selzer had to deal with it for the past two years.
This case sets a President, a member of Congress, and a former state senator against a pollster and a newspaper, and it arises out of an election. A case of that kind invites the reader to look for a political result. The Court’s role is narrower. It is to sit as an impartial arbiter, to apply the law without passion or prejudice, and to rule without regard to the politics of the day. As such, the only question before the Court is whether the Petition states a claim the law recognizes. 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. The case must therefore be dismissed.
We had previously covered some of the extremely shady procedural maneuvers that Trump’s lawyers had made in the course of the case, including dropping the federal case and refiling in state court in an attempt to dodge Iowa’s new anti-SLAPP law. But the state case was dead on arrival as well, even as Trump’s lawyers did a ridiculous “there’s no First Amendment implication here at all” shrug:
Plaintiffs’ initial argument is that the First Amendment has no relevance to this case. They say this litigation has nothing to do with a government attempt to chill private speech; no claim involves government suppression; and that Defendants’ argument over the absence of a general government power to punish political falsehoods is beside the point, because the parties on both sides are private. If Plaintiffs were right about this, the rest of this Part would be unnecessary. They are not right.
Under First Amendment principles, the identity of the party seeking the court to sanction speech is irrelevant. What matters is whether state law, applied by a state court’s judgment, will be used to do so. That principle was set in New York Times Co. v. Sullivan, which was itself a private tort action between private parties. In that case, the Supreme Court set the precedent that what a State may not constitutionally accomplish through a criminal statute is likewise prohibited in its civil law, and the prospect of damage awards may inhibit speech more effectively than the threat of prosecution. It makes no difference that a State is acting solely through its judicial branch, because the Constitution asks a court to scrutinize the application of state power.
This point has been applied to tort claims in the decades since, and it is clear that the Free Speech Clause may serve as a defense in state tort suits.
We occasionally hear this kind of nonsense from internet trolls, arguing that “defamation has nothing to do with the First Amendment, because it’s between two private parties, not the government.” But as the judge explains here, that’s not how any of it works. What matters is that the state, through its courts, is being asked to punish speech. That’s why NYT v. Sullivan (itself a lawsuit between private parties) made it clear that the First Amendment is quite relevant to any defamation claim.
In response to this case law, the Plaintiffs cite no authority for the contrary proposition, and the Court is aware of none. The rules are simple. Just because a private party rather than a prosecutor seeks the sanction does not remove the constitutional protection.
The First Amendment clearly applies in this case.
The fact that the polls turned out to be “false” also doesn’t change things, because the Supreme Court has made it clear that the vast majority of false speech is still protected by the First Amendment, with only a few narrow categories of false speech (like defamation and fraud) carved out. And, you should want it that way, because otherwise, any time anyone is aggrieved about someone’s speech, they could take them to court and spend years and millions of dollars fighting over truth vs. falsity. It would be a recipe for non-stop SLAPP suits.
In particular, this case turns on the principle that falsity 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.
Plaintiffs attempt to rebut this authority on falsity with a listing of statements from decisions in other contexts as support for the proposition that there is no constitutional value in false statements of fact, and that false speech is not protected for its sake.
This line of argument is unpersuasive because the Supreme Court has considered those very statements and explained that they do not support the conclusion that false statements are, generally, outside the Constitution’s protection. The passages Plaintiffs cite were written in the context of an area of speech that is unprotected for its own sake, and they do not stand for the general proposition that falsity is unprotected.
But, even more importantly, a poll isn’t the kind of thing that can be “true” or “false” in the first place. It’s an estimate, a snapshot of what a sample of people said at one moment, with a margin of error, about an event that hasn’t happened yet. It’s no more “false” when the result differs than a weather forecast is “false” when it doesn’t rain, which the judge notes:
A poll is simply an estimate. A poll reports responses from a sample of voters and includes a reported margin of error. 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. Ratings, forecasts, and predictions that reflect a subjective weighing of objective data points are not sufficiently factual to be susceptible to proof, and predicting uncertain future events is not an exact science for which a publisher may be held to account.
Honestly, this ruling by Judge Scott J. Beattie does a really excellent job cleanly and clearly explaining basic First Amendment principles. Too often in First Amendment cases, the judges get caught up in the details and legalese, which often makes it harder for lay people to understand the basic concepts. But Judge Beattie’s writing is very direct and on point regarding how the First Amendment actually works.
Is there actual malice? Of course not. Actual malice means they published it knowing it was false, or with reckless disregard for whether it was, meaning they actually had serious doubts about its truth. Trump, as per usual, presented zero evidence of actual malice:
Plaintiffs are public figures, and the Iowa Poll dealt with a matter of public concern. The privilege which bars defamation actions thus applies to Plaintiffs’ claims, and Plaintiffs must allege that Defendants published the poll knowing it to be false, or with reckless disregard as to the truth of the poll.91 Reckless disregard is not whether a reasonably prudent publisher would investigate further; it must be supported by facts that a publisher actually had serious doubts as to the truth of the publication.
The Petition does not contain such facts of actual malice. Although Plaintiffs have asserted that manipulation and falsification occurred in their pleadings and at oral argument, the Petition alleges no facts that support the notion that samples were manipulated, responses falsified, or the questionnaire slanted. What it alleges is that the result proved badly wrong and that Defendants harbored political animosity toward the Plaintiffs. Neither suggests the required state of mind. A published estimate that proves to be inaccurate is evidence only of error; ill will directed at the subject of a publication is not evidence of doubt as to its truth.
Would granting the injunction Trump sought against future “false polls” be an unconstitutional prior restraint? Certainly:
Plaintiffs seek an injunction against Defendants’ further publication of any false polls. The threat of prior restraint on publication is the gravest and least attractive encroachment on the First Amendment and is subject to a strong presumption of unconstitutionality. The scope of the relief sought would require this Court to determine the accuracy of unmeasured polls and to prevent the publication of speech yet to be made. Other courts asked to provide such relief have refused, and this Court would refuse.
Would applying the Iowa Consumer Fraud Act to the publishing of this poll violate the First Amendment under “strict scrutiny” (the standard required for the suppression of speech in a context like this)? Abso-fucking-lutely:
The Press Defendants argue, as to Count I alone, that Plaintiffs’ construction of the Iowa Consumer Fraud Act could not survive strict scrutiny. The Court agrees. The Plaintiffs’ construction of the Act would have subjected a pollster to liability for publishing an estimate that turned out to be inaccurate. Such a construction would constitute content-based regulation of core political speech, and the State would have the nearly impossible burden of justifying it. Although protection of the integrity of elections is a compelling interest properly considered in the abstract, the State must demonstrate that the particular restriction it seeks to impose is narrowly tailored to advance that interest. The Eighth Circuit has held that punishing false political speech is not permissible because the remedy for false speech is true speech. Plaintiffs’ construction would not meet that narrowly tailored test.
Basically, no matter how you look at it, no matter which standard you use, this whole mess of a censorial lawsuit was clearly designed to chill speech. As the judge points out, there’s effectively zero limit to Trump’s argument here:
The Court put the consequence of the Plaintiffs’ theory to their counsel directly. Asked whether the theory would expose meteorologists and sports commentators to liability to anyone who acted on a forecast or a prediction, counsel answered that it would not, “as proven by the fact that you don’t see those cases being brought.” The absence of such suits is not a limiting principle. It is the reason a limiting principle has not yet been needed.
Basically, the reason we don’t see such cases is because they’re obviously bullshit. And yet Trump, then the president-elect, brought his anyway, and kept pushing it as the sitting president. Solely because he wanted vengeance and pain brought on someone who issued a poll (speech) he didn’t like.
Unfortunately, though, the court refused to issue sanctions on Trump and his lawyers for bringing such a bullshit lawsuit in the first place, saying that even though Trump asked the court to extend existing law into new realms, it will give him the benefit of the doubt that the request was done in good faith. The court did leave the door open, though: a separate motion arguing the case was brought “for an improper purpose” might fare better. That question just isn’t ripe yet.
We’ve covered dozens upon dozens upon dozens of examples of Donald Trump’s anti-free speech actions over the years. It’s nice to see a court clearly call bullshit on this one.