FIRE’s Robert Corn-Revere on Trump’s ‘Election Interference’ Suit Against Pollster

Published: June 2.

Headshot of Robert Corn-Revere. Photo courtesy of the Foundation for Individual Rights and Expression

In December 2024, shortly after the presidential election, then-President-elect Donald Trump filed a federal lawsuit against The Des Moines Register and Iowa pollster J. Ann Selzer, claiming the veteran pollster and the newspaper published a “deceptive poll” and violated a state consumer fraud law.

The poll, published before the November 2024 election, showed then-Vice President Kamala Harris leading Trump in the state 47% to 44%. Trump then won Iowa with 56% of the vote to Harris’ 42.7%. Selzer later described it as “the biggest miss of my career.”

The lawsuit, also filed against The Register’s parent company, Gannett, claimed the poll’s publication violated Iowa’s consumer fraud statute and argued Selzer engaged in “brazen election interference.”

“Selzer — who had prided herself on a mainstream reputation for accuracy despite several far less publicized egregious polling misses in favor of Democrats … would have the public believe it was merely a coincidence that one of the worst polling misses of her career came just days before the most consequential election in memory, was leaked, and happened to go against the Republican candidate,” the lawsuit states. “The Harris Poll was no ‘miss’ but rather an attempt to influence the outcome of the 2024 Presidential Election.”

This lawsuit against The Register is added to a long list of disputes between the press and the second Trump administration. The Foundation for Individual Rights and Expression (FIRE), which is representing Selzer pro bono, has described this case as a Strategic Lawsuit Against Public Participation, or a SLAPP, which are often used in attempts to silence critics through lengthy and expensive litigation.

In an interview with First Amendment Watch, FIRE’s Chief Counsel Robert Corn-Revere, Selzer’s attorney, discusses the First Amendment issues in this case, outlines why filing this lawsuit under the “consumer fraud” statute is meritless, and explains why courts have never upheld “false news” as an unprotected category of speech under the First Amendment.

Editor’s note: This interview has been edited and condensed for length and clarity.

FAW: Can you outline the First Amendment issues that are baked into this lawsuit citing “consumer fraud”?

Corn-Revere: The basic idea is that there is no such claim in American law as fake news or fraudulent news, that you can’t simply convert something into a fraud case by slapping the label “fraud” onto it. And that what the plaintiffs are essentially asking the court to do, is to recognize a new exception to First Amendment protection, but this isn’t fraud which involves a commercial transaction and a fraudulent statement designed to induce someone into a fraudulent transaction. This is a public opinion poll during election coverage and reporting, and so they’re trying to create this new cause of action that has no basis in American law. The Supreme Court recognized in the Alvarez case there is no general First Amendment exception for “falsity,” that that opens the doorway too wide, and it undermines, I think, understandings of what the First Amendment is about that go back to the beginnings of the country. That was one of the important lessons of the Alien and Sedition Acts, where the [John] Adams administration thought it would be a good idea to be able to prosecute newspaper editors for “false news” and attacks on the President and Congress, and that law was one of the primary points of contention in the presidential election that saw Thomas Jefferson being elected, and the law expired under its own terms, and has long been seen as one of the defining features of what we understand the First Amendment to mean. And so this lawsuit is, I think, more of a political stunt than anything else, and it is being done to punish both the newspapers, as well as the pollster, for getting the wrong result from a political perspective, and it is plainly barred by our First Amendment traditions.The data, the cross tabs, all the information, was out there for everybody to see. That’s how polling works, and this was no exception. And everyone understands, or anyone who’s been involved in political polling understands, there are outliers, and they’re explained by a wide variety of factors, including the idea that, as our politics have become more polarized, you may have a segment of the population simply unwilling to participate in polling, which obviously may affect the results. And so again, this is just an artifact of our politicized political world that we live in now, but with the plaintiffs in this case simply trying to use the law for a political purpose.

FAW: What is the Iowa “consumer fraud” statute and how is it being applied here in alleged retaliation against Selzer for her poll published in the Des Moines Register? Is there a way to make its language more digestible?

Corn-Revere: Do I have to avoid the words complete bullsh*t? There is no such case in American law as “fake news,” it simply doesn’t exist. Consumer fraud is something else, that’s false advertising and inducing someone to engage in some commercial transaction based on false pretenses. That’s not what this is. This is coverage of a presidential election, including polling of what the voter sentiment is. There’s nothing about that that resembles fraud … And so whether from a statutory point, common law standpoint, or from a constitutional standpoint, there’s really nothing here that provides a legal basis for this claim.

FAW: Is this the first time, in Iowa or elsewhere, that a lawsuit is being filed against the work of a news organization under the guise of consumer fraud?

Corn-Revere: It’s not the first time it’s been attempted. In our motion, we identify right in the introduction, a number of cases where similar kinds of allegations were being quickly dismissed. We also note that there’s the lawsuit against “60 Minutes” in Texas, Trump suing over the Kamala Harris interview, that’s also alleging a consumer fraud basis, which again suffers from the same flaws as I’ve identified for this lawsuit. Now one difference is that Trump may be able to coerce a settlement in that case because CBS is a FCC licensee. Pressure is being exerted by the FCC both through its own news distortion complaint, which is a whole other set of laws, or through the approval process for the Paramount Global/Skydance Media merger, so that there are a lot of ways in which the administration can bring pressure that may force a settlement, there are rumors of a settlement, the idea that it’s gone into mediation. There has been no settlement yet. I don’t know whether it will settle. What I can tell you is that the case against Ann Selzer will not be settled.

Former U.S. President Trump attends a press conference, in New York

Republican presidential candidate and former U.S. President Donald Trump attends a press conference, the day after a guilty verdict in his criminal trial over charges that he falsified business records to conceal money paid to silence porn star Stormy Daniels in 2016, at Trump Tower in New York City, May 31, 2024. (Reuters/Brendan McDermid)

FAW: Is election polling considered political speech? Why is it an important facet to this case?

Corn-Revere: Well, certainly, election polling, for decades, if not a century, has been a standard part of news coverage of elections and of commentary during elections, and it is protected speech on a number of dimensions. First of all, because the polling process itself is protected speech. You are interviewing voters about their sentiment and then analyzing that. All of those steps are protected, but also news reporting is, as I say, a standard feature of election coverage to try and report what voter settlement is, where voter sentiment might be going, and all of those things are part of the back and forth political discussion that occurs during elections.

FAW: In the reply brief you note that the Trump administration argues that because The Des Moines Register and its parent corporation, Gannett, are for-profit media organizations and Selzer is creating these polls for compensation, she doesn’t receive the same First Amendment protections. Would any arguments in the case change if Selzer were to have produced this poll for a nonprofit organization?

Corn-Revere: No, and there are a couple of ways in which that argument appears in the opposition to the motion to dismiss. One is simply to say that this is a product because Ann Selzer does polling for a living, but that makes absolutely zero difference under the First Amendment, the fact that speech is produced for profit, and there are scores of decisions by the Supreme Court and lower courts that confirm that point, that whether or not speech is done without compensation or with compensation, has no effect on whether or not it receives constitutional protection. And the courts repeatedly make the point that if you didn’t recognize the right to make a living from your speech, then there would be no speech. Very few people would do that for free… but the difference in these arguments is that the plaintiffs try to characterize this as commercial speech. Now obviously there’s a distinction between compensated speech and commercial speech. Compensated speech is simply speech in which you receive something of value for the fact that you are engaging in speech, or the press, or whatever the form it takes. Commercial speech is a term of art, and it refers to advertising, where speech is done for the purpose of engaging in a commercial transaction. This is not commercial speech, as I mentioned when I was describing what happens in election coverage. This is classic news, and as a consequence, you can’t confuse it with commercial speech, which is what the plaintiffs repeatedly do in their opposition.

FAW: The administration claims that “false statements—whether on the pages of a newspaper or elsewhere—are a species of fraud and do not enjoy immunity from tort liability when the speaker makes the statements with knowledge of falsity or reckless disregard for truth or falsity.” Is this an effort to misapply defamation law to political speech?

Corn-Revere: You hit it on the head. That is exactly the attempt, to pull out snippets of language from various kinds of speech, various kinds of doctrines involving exceptions to protected speech, and then mix them and match them to create some new exception to First Amendment protection. One of the themes in our motion to dismiss, and picked up in the reply brief as well, is the idea that the court has been very clear that whether speech is presumptively protected, that the exceptions are limited, narrowly defined, and that the court is not going to expand those categories. There are a couple of categories of the unprotected speech categories that do touch on falsity. Fraud is one of them, and then involves commercial transactions, not this, and the other is defamation. And defamation is a specific kind of tort where you’re injuring someone’s reputation through an intentionally false statement. Again, not this, and that’s why the court’s decision in United States vs. Alvarez was so important, because it looked at whether or not you could simply allege falsity, unconnected to those specific categories, and say that that is something that can be punished under the First Amendment as well. And the court said no. What is interesting about this is that in making the argument trying to uphold the Stolen Valor Act in the Alvarez case, the government plucked out the same snippets, the same one liners from various cases involving fraud or defamation, and tried to stitch them together to create a new unprotected category, and the court rejected that effort in Alvarez saying, “No, you can’t fashion this new kind of speech that we’re not going to protect by simply pulling those threads from other lines of judicial authority,” that this is something else, and that’s really all they’re doing here. They’re trying to take out of context quotes, mash them together and create a new category that no court has ever upheld. It’s also important to understand the broader context in that one of the artifacts of having the strong First Amendment jurisprudence that we have is the fact that those who want to restrict speech will always look for end runs. They’ll look for ways to get around those protections. And that’s true regardless of whether you have a Democratic administration or a Republican administration, and you see that in the various efforts to regulate social media, as an example, where you will see people saying, “Well, this is not a speech regulation. This is a business regulation,” or “We’re regulating a product,” or you name it, so that you’re not acknowledging the idea that you’re regulating speech. And in fact, most of what you have to do to defend against that is to call it by its real name. It is censorship. It’s an attempt to silence speech you dislike, or to regulate speech that you think really shouldn’t be left out there free. And so this is another flavor of the same phenomenon. This one comes from the Trump administration and from Donald Trump personally. But we see this regardless of who happens to be in power. We’re just seeing a lot more of it in this first 100 days.