Treating Journalism As Consumer Fraud, Trump Claims Coverage of a Presidential Poll Was Not ‘News Reporting’
Shortly before last year’s presidential election, the Des Moines Register reported the results of a poll that gave Kamala Harris, the Democratic candidate, a three-point lead in Iowa. That surprising result, generated by a survey that pollster Ann Selzer conducted for the Register, proved to be off by more than a little: Donald Trump ultimately won Iowa by 13 percentage points.
Trump is still mad about that survey, and he is trying to punish the Register and Selzer for it by persuading a federal judge in Iowa that it amounted to consumer fraud under state law. The obvious problem for Trump is that his fraud claim hinges on showing that he suffered damages because he reasonably relied on misrepresentations by the defendants in connection with the sale of “consumer merchandise.” Since Trump did not buy anything from the Register or Selzer, the Foundation for Individual Rights and Expression (FIRE) argued in a motion to dismiss his lawsuit, he is trying to invent a tort that consists of reporting “fraudulent news,” which would be plainly inconsistent with the First Amendment.
Not so, Trump lawyers Edward Andrew Paltzik and Alan R. Ostergren say in their opposition to dismissal. The plaintiffs, who include two Iowa politicians as well as Trump, “have not brought a claim for ‘fraudulent news’ or for that matter, any claim involving news,” Paltzik and Ostergren write, because “defendants were not engaged in any news reporting. Rather, Defendants intentionally (or at minimum, negligently) disseminated false polling data for increased profit and readership.”
When the Register reported that “Kamala Harris now leads Donald Trump in Iowa,” in other words, the story might have looked like coverage of the presidential race. But it was actually not “news reporting” at all, because it was 1) inaccurate and 2) motivated by a desire for “increased profit and readership.” If a news organization gets a story wrong while trying to make money or attract readers, according to Paltzik and Ostergren, it is not practicing journalism, even poorly. It is engaged in “commercial speech,” which enjoys less protection under the First Amendment.
That is not what “commercial speech” means, FIRE notes in a reply brief it filed last week. “‘Commercial speech’ is not speech someone was paid to produce, as Plaintiffs evidently think,” write FIRE Chief Counsel Robert Corn-Revere and his colleagues, who represent Selzer. The commercial speech doctrine, as articulated by the Supreme Court in the 1980 case Central Hudson & Electric Corp. v. Public Services Commission, “applies to advertising—speech proposing commercial transactions.”
Trump’s lawyers claim “Selzer’s polls and the Register are ‘consumer products’ and ‘commercial speech’ because they operate for-profit businesses,” Corn-Revere et al. note. That argument “would (or should) embarrass a first-year law student,” FIRE says, noting that it contradicts “the very basic concept that speakers do not ‘shed their First Amendment protections by employing the corporate form to disseminate their speech,'” as th
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