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,...
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