Trump Tries To Carve Out a First Amendment Exception for ‘Fake News’
“Fake News is an UNPARDONABLE SIN!” President Donald Trump declares in a Truth Social rant inspired by the cancellation of Joy Reid’s MSNBC show. “This whole corrupt operation is nothing more than an illegal arm of the Democrat Party. They should be forced to pay vast sums of money for the damage they’ve done to our Country.”
Trump’s claim that journalism he does not like is “illegal” and constitutes a tort justifying massive civil damages should be familiar by now. He has made such claims not only in social media posts but also in actual lawsuits against news organizations. As the Foundation for Individual Rights and Expression (FIRE) explains in a motion filed last Friday, these chilling attempts to convert Trump’s complaints about press coverage into causes of action are legally baseless and blatantly unconstitutional.
Last October, Trump sued CBS in Texas, claiming that its editing of a 60 Minutes interview with Kamala Harris constituted consumer fraud that had caused him “at least” $10 billion in damages. In December, he filed a similar lawsuit against The Des Moines Register and pollster Ann Selzer in Iowa, claiming a voter survey that erroneously predicted a Harris victory in that state likewise amounted to consumer fraud.
FIRE, which represents Selzer in the latter case, notes that the Supreme Court has recognized several narrowly defined exceptions to the First Amendment, including “obscenity, child pornography, defamation, fraud, incitement, fighting words, and speech integral to criminal activity.” Trump is trying to carve out an additional exception for “fake news,” which would have a paralyzing impact on journalists, since they would be exposed to daunting legal expenses and potentially ruinous civil liability whenever their reporting was arguably misleading or inaccurate.
“In the United States,” FIRE Chief Counsel Robert Corn-Revere notes in a motion to dismiss Trump’s claims against Selzer, “there is no such thing as a claim for ‘fraudulent news.’ No court in any jurisdiction has ever held such a cause of action might be valid, and few plaintiffs have ever attempted to bring such outlandish claims.” While the “fake news” label “may play well for some on the campaign trail,” Corn-Revere writes, it “has no place in America’s constitutional jurisprudence.” Trump’s lawsuit, he says, is “a transparent attempt to punish news coverage and analysis of a political campaign, speech that not only is presumptively protected but ‘occupies the highest rung of the hierarchy of First Amendment values.'”
The object of Trump’s ire is a poll that Selzer conducted for the Register shortly before the 2024 presidential election. Unlike other polls and Selzer’s previous surveys, all of which found that Trump was ahead in Iowa, this one gave Harris a three-point lead. That poll, which the Register published on the Saturday before the election, turned out to be off by more than a little: Trump won Iowa by a 13-point margin.
“It’s called suppression,” Trump said at a rally in Pennsylvania the day after the Register reported Selzer’s results. “And it actually should be illegal.”
In fact, according to Trump, it was illegal. In a complaint he filed in the Iowa District Court for Polk County on December 16, Trump averred that Selzer’s poll violated that state’s Consumer Fraud Act, which prohibits deceptive practices “in connection with the advertisement, sale, or lease of consumer merchandise.” At the defendants’ request, the case was transferred to the U.S. District Court for the Southern District of Iowa. In an amended complaint on January 31, Trump added common law claims of fraudulent and negligent misrepresentation.
That complaint was joined by two additional plaintiffs: Rep. Mariannette Miller-Meeks (R–Iowa
Article from Reason.com
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