From today’s extensive ruling handed down by Iowa state trial court judge Scott Beattie in Trump v. Selzer [UPDATE: link fixed]:
J. Ann Selzer has long served as a central figure in Iowa polling, producing political surveys for nearly four decades. Just three days before the 2024 general election, the Des Moines Register … released a Selzer-authored poll indicating Kamala Harris leading Donald Trump in Iowa and Christina Bohannan ahead of Mariannette Miller-Meeks in Iowa’s First Congressional District. The poll’s projection did not come to pass.
This dispute grows out of that misfire. Donald J. Trump, Mariannette Miller-Meeks, and Bradley Zaun … sue in their private capacities. The Petition asserts violations of the Iowa Consumer Fraud Act, fraudulent misrepresentation, and negligent misrepresentation, and seeks a court order prohibiting the publication of further deceptive polls.6 Both Defendants have moved to dismiss….
At bottom, the Plaintiffs’ Petition aims to push Iowa’s statutory and common law beyond their current boundaries, converting speech that enjoys the highest level of First Amendment protection into a basis for liability. After weighing the arguments presented by the parties, the Court must conclude that the protection is too expansive and the reach too far….
[F]alsity alone does not establish a category of unprotected speech. The Supreme Court has never ruled that false statements by themselves fall outside First Amendment protection, and it declined to adopt such a position when it confronted the issue. The Eighth Circuit has held that even knowingly false campaign speech remains within the Amendment’s protection….
With only a handful of exceptions to First Amendment protection, the Plaintiff must proceed under the fraud exception. The speech, however, must satisfy what that exception requires…. The fraud exception is narrow, and the evidentiary standards for a fraud claim exist precisely to safeguard protected speech. A mere false statement does not trigger liability. Instead, the constitutional exception concerns a false claim made to secure money or other valuable consideration….
1. The Iowa Poll Was Not a Provably False Statement of Fact.
A poll is simply an estimate…. It rests on a defined methodology, concerns an event that has not yet occurred, and is inherently uncertain. Such matters are not the sort of claims that can be adjudged true or false in the sense required by the fraud exception. Opinion polls drawn from random voter samples are snapshots with margins of error, and campaigns are in flux. A forecast about a future state of affairs is not provably false, even if the speaker is alleged to have known better….
2. No Representation Was Made to Plaintiffs, and No Plaintiff Conferred Any Value in Reliance …
No Plaintiff contends that J. Ann Selzer or Selzer & Company contacted him or her, sought anything from him or her, or maintained any contractual or other relationship with any Plaintiff. No Plaintiff asserts that he or she purchased the Iowa Poll, subscribed to the Register because of the Poll, or gave anything of value to any Defendant due to the Poll. Plaintiffs merely claim that false statements were disseminated to the public and that harm followed. Whatever the causation, that is not fraud….
The plaintiffs contend they actually incurred damages, including campaign expenditures to counter the Iowa Poll, and argue that this distinguishes their case from U.S. v. Alvarez (2012), where the false statements yielded nothing for the speaker. The response conflates two distinct requirements. Being harmed does not establish that the speech was used to extract money or property from the plaintiff. Alvarez itself clarifies that permitting liability for false speech absent any evidence that the speech was used to gain a material advantage would confer a censorial power unseen in the Court’s jurisprudence and in our constitutional tradition. Plaintiffs allege consequences; they do not allege a transaction….
[T]he Iowa Poll and its coverage constitute fully protected political speech, and the Petition fails to plead the elements that would place that speech within the fraud exception. The First Amendment bars all of the claims.
Second, and independently, the Petition advances no claim under Iowa law. Count I [violation of the Iowa Consumer Fraud Act] asserts no prohibited act related to the advertisement, sale, or lease of consumer merchandise, no ascertainable loss of money or property, and no reliance. Count II [fraudulent misrepresentation] asserts no misrepresentation intended to induce any Plaintiff to act and no act taken in reliance on the truth of the polls. Count III [negligent misrepresentation] asserts no duty owed by a pollster or a newspaper to a candidate. Either basis would alone yield the same result.
Selzer is represented by Robert Corn-Revere and Conor Fitzpatrick (FIRE).
