Iowa Pollster Sued by Trump Over Bad Results Files Scathing Motion to Dismiss: ‘Fatally Flawed on Every Level’

Photo of J. Ann Selzer by Jenny Condon Photography

The legal team representing Iowa pollster Ann Selzer filed a motion to dismiss the lawsuit filed against her by President Donald Trump, eviscerating Trump’s claims one by one and arguing that the complaint was nothing more than “artful pleading seeking to evade the First Amendment.”

A few days before the November election, the Des Moines 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, and 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, Trump’s attorneys attempted to frame the case as a consumer fraud issue, arguing that Selzer’s poll constituted “fake news” and was an act of “brazen election interference,” that was an “unfair act or practice” under Iowa’s consumer fraud law “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.’”

The complaint was later amended to add a member of Congress who won her re-election, Rep. Mariannette Miller-Meeks (R-IA), and a state senator who lost, Bradley Zaun.

The Foundation for Individual Rights and Expression (“FIRE”), a nonpartisan free speech advocacy nonprofit, announced last month that it would represent Selzer pro bono, and issued a statement blasting Trump’s lawsuit for being “about as unconstitutional as it gets.” Selzer’s legal team includes FIRE attorneys Robert Corn-Revere as lead counsel along with Conor Fitzpatrick, Greg Greubel, and Adam Steinbaugh, plus Matthew McGuire of the Des Moines law firm Nyemaster Goode as additional local counsel.

The motion to dismiss filed on Selzer’s behalf Friday (posted on the organization’s website) cites extensive case precedent on why the lawsuit overall is an attempt to undermine both the letter and intent of the First Amendment and delivers a scathing point-by-point takedown of how each element of the legal claims the plaintiffs are attempting to bring are “fatally flawed on every level” and nothing more than “a transparent attempt to punish news coverage and analysis of a political campaign.”

Core to Selzer’s First Amendment defense, the attorneys wrote, is the longstanding commitment our legal system has to allow “uninhibited, robust, and wide-open” speech on political issues, and to treat such speech as “presumptively protected unless it falls within one of a few limited and narrowly defined categories,” and “[t]hose categories do not include a general exception for ‘false speech,'” or the “fake news” attack Trump so frequently deploys against his political foes.

Trump’s effort to “illegitimately expand” these very specific and narrow exceptions to free speech protections to include “fake news” was “a tag line that may play well for some on the campaign trail but has no place in America’s constitutional jurisprudence,” the motion continued, and should be wholly rejected. There is no recognized “forecaster’s duty” under the law, the attorneys argued, and just as a television meteorologist cannot be sued for forecasting sun instead of rain, pollsters “are not seers” and cannot be liable for predictions that turn out to be faulty.

The complaint also fails “to allege any recoverable damages” or “state any plausible claims, either on the law or on the facts as alleged,” the attorneys wrote. “No court has ever accepted claims like these, and this Court should not be the first.”

The motion is especially scathing about the complaint’s efforts to frame the cause of action under Iowa’s consumer fraud law — a tactic that has been frequently favored by both Trump and Elon Musk in their litigious battles against their critics, often as an attempt to circumvent anti-SLAPP defenses. “Undaunted by the poor fit between commercial transactions and speech on public affairs, Plaintiffs try to pound their square peg into a round hole without any attempt to reconcile the constitutional mismatch,” the attorneys wrote. “Plaintiffs are hardly the first to use artful pleading seeking to evade the First Amendment, and courts are adept at seeing through such artifice.”

In one particularly memorable section, the attorneys reference Inigo Montoya, the virtuous Spanish swordsman seeking to avenge his father’s murder in the beloved 1973 book and 1987 film, The Princess Bride, to knock down the plaintiffs’ attempts to disguise their claims as “fraud”:

Plaintiffs try to shoehorn their claims into an existing category by calling the Iowa Poll “fake” and asserting actionable “fraud” occurred. But in the famous words of Inigo Montoya from the movie The Princess Bride, “You keep using that word. I do not think it means what you think it means.” As a matter of basic law, Plaintiffs’ allegations about polls and news stories they dislike have nothing to do with fraud. They also sprinkle the complaint with loose talk of “election interference,” although they stop short of including a separate claim on that basis, perhaps out of awareness that “no court has held that a scheme to rig an election itself constitutes money or property fraud.”

…Plaintiffs wield the terms “election interference” and “fraud” like an alchemist’s incantation, hoping to transform their political dross into legal gold. But no amount of vacuous repetition can convert their expansive concept of “fake news” to the very limited and specific legal concept of fraud. The Supreme Court has made clear that slapping the “fraud” label on a claim cannot satisfy the specific showing required or extinguish the First Amendment. (Citations and internal quotation marks omitted.)

Trump and his fellow plaintiffs “seek to create a new First Amendment exception for speech that has always received the highest level of constitutional protection—political speech and commentary,” the attorneys argued, but two centuries of case law have established that “[e]fforts to regulate ‘truth’ in political commentary are thus presumptively unconstitutional and subject to strict scrutiny.” Even more extreme, they continued, was the complaint’s demand for an injunction to prohibit publishing “any further deceptive polls.” This sort of restriction would be a “classic prior restraint” on speech, “the most serious and the least tolerable infringement on First Amendment rights.”

The motion is very pointed in challenging Trump and his fellow plaintiffs’ claims of damages, describing the “obvious” points that Trump and Miller-Meeks won their elections, and Selzer never conducted a poll in Zaun’s state senate race or even mentioned him at all in the poll, rendering accusations she damaged him in some way even more tenuous. Selzer’s legal team brought forth case law rejecting lawsuits for lost elections, damage to undefined groups of bystanders (the claim that the poll hurt Iowa voters or the public in some way), and trying to bring consumer fraud claims when no product was offered for sale or lease by the defendant.

The Trump complaint even conceded the issue of reliance within its text, Selzer’s attorneys pointed out, by arguing that other contemporaneous reports called the poll an “outlier.” Mediaite’s coverage described it as a “shock poll” repeatedly in both the headline and the text; every other article this reporter can recall framed it as an outlier, unusual, or other language casting doubt or expressing skepticism.

Even the Des Moines Register framed the poll that way when it first published the results, said Corn-Revere, Selzer’s lead counsel, when reached by phone by Mediaite for comment. (The first sentence of the article calls the poll “a startling reversal for Democrats and Republicans who have all but written off the state’s presidential contest as a certain Trump victory.”)

The main point of the motion they filed on Selzer’s behalf, said Corn-Revere, “starts with the idea that a claim for fraudulent news isn’t a thing” — laughing as he added, “It’s not just that they didn’t make their case, there was no case to be made.”

Corn-Revere, a First Amendment litigator for more than four decades who joined FIRE as chief counsel two years ago, told Mediaite that the organization got involved in Selzer’s case because “this is larger than any one pollster or any one publisher; this is part of the leading edge of cases trying to intimidate the media in general and water down First Amendment protections.”

This lawsuit, he continued, was an “especially egregious example of government overreach,” and it was important for even non-lawyers to understand that under the U.S. Constitution, “you can’t have a government action or lawsuit designed to attack ‘fake news’ or ‘false news'” and to do otherwise would undermine “the very basic idea of free speech.”

Nothing Trump and his co-plaintiffs argued in the complaint, Corn-Revere said, “fell within any exception to the First Amendment,” noting that they “didn’t even try” to claim defamation and the fraud claims failed because none of the plaintiffs entered into a commercial transaction with Selzer.

As far as quoting Inigo Montoya, Corn-Revere chuckled and commented that “lots of courts have quoted that” when a litigant is trying to twist the meaning of a word beyond all reasonable definitions.

The full Motion to Dismiss, as filed with the U.S. District Court for the Southern District of Iowa, can be read on FIRE’s website here. Selzer’s attorneys have requested oral argument.