Free Speech Organization Takes Up Legal Defense of Iowa Pollster Sued by Trump: ‘About As Unconstitutional As It Gets’
Photo of J. Ann Selzer by Jenny Condon Photography.
The Foundation for Individual Rights and Expression (“FIRE”), the nonpartisan free speech advocacy nonprofit, will provide pro bono legal defense services for J. Ann Selzer, the Iowa pollster who was sued by President-elect Donald Trump over a poll she conducted for The Des Moines Register.
A few days before the November election, the Register published a poll conducted by Selzer showing Vice President Kamala Harris leading Trump 47% to 44% among likely voters. Unsurprisingly, Trump was enraged at the poll, neither winning the election (including a double digit victory in Iowa) nor Selzer’s retirement did much to soothe his ruffled feathers. Later that month, Trump called for Selzer and the newspaper to be investigated and then followed that up with a lawsuit in December.
In the complaint, filed against Selzer and the Register, Trump’s attorneys attempted to frame the case as a consumer fraud issue by arguing that the defendants committed an act of “brazen election interference” when they “engaged in an ‘unfair act or practice’ because the publication and release of the Harris Poll ‘caused substantial, unavoidable injury to consumers that was not outweighed by any consumer or competitive benefits which the practice produced.’”
“I am mystified about what the motivation anybody thinks I had and would act on in such a public poll,” Selzer said in response to the lawsuit. “I don’t understand it. And the allegations I take very seriously. They’re saying that this was election interference, which is a crime. So, the idea that I intentionally set up to deliver this response, when I’ve never done that before, I’ve had plenty of opportunities to do it, it’s not my ethic.”
Selzer will now have an experienced team of attorneys defending her in court. FIRE posted a statement on social media and their website explaining the legal issues and vowing to defend Selzer from this lawsuit by the incoming president that was “meritless and violates long-standing constitutional principles” and “threatens Americans’ First Amendment right to speak on core political issues.”
Core to FIRE’s defense is an emphatic rejection of Trump’s attempts to characterize a poll that “got it wrong” as “consumer fraud.”
“Punishing someone for their political prediction is about as unconstitutional as it gets,” FIRE Chief Counsel Bob Corn-Revere said. “This is America. No one should be afraid to predict the outcome of an election. Whether it’s from a pollster, or you, or me, such political expression is fully and unequivocally protected by the First Amendment.”
Trump’s lawsuit was a distortion of Iowa’s Consumer Fraud Act, one of many similar laws across the country that prohibit sellers from using false statements to induce people to buy their merchandise. “Consumer fraud laws are about the scam artist who rolls back the odometer on a used car, not a newspaper pollster or TV meteorologist who misses a forecast,” said FIRE attorney Conor Fitzpatrick.
Contrary to Trump’s claims the defendants were publishing “deceptive polls” to “poison the electorate,” the statement from FIRE goes on to argue that Selzer and the Register “were completely transparent about how the poll was conducted. Selzer and the newspaper released the demographic breakdowns showing the results of the telephone survey and the weighting system. Selzer also released an analysis of how her methods might have contributed to missing the mark.”
Trump’s complaint was “just a new spin on the same theory long rejected under the First Amendment,” FIRE’s statement added, calling the litigation “the very definition of a ‘SLAPP’ suit — a Strategic Lawsuit Against Public Participation:
Such tactical claims are filed purely for the purpose of harassing and imposing punishing litigation costs on perceived opponents, not because they have any merit or stand any chance of success. In other words, the lawsuit is the punishment. As Trump once colorfully put it after losing a lawsuit: “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
FIRE’s goal in providing pro bono legal services was “to remove the punishment-by-process incentive of SLAPP suits,” as they had successfully done for other past clients. “Donald Trump is abusing the legal system to punish speech he dislikes,” said FIRE attorney Adam Steinbaugh. “If you have to pay lawyers and spend time in court to defend your free speech, then you don’t have free speech.”
