Experts: Trump’s use of consumer fraud law to sue Des Moines Register unlikely to succeed

Legal experts representing different ends of the political spectrum say the recent lawsuit by President-elect Donald Trump against the Des Moines Register is based on a strained interpretation of Iowa law and is unlikely to find success in court.

Trump filed suit Dec. 16 against the Register, its parent company Gannett and longtime Iowa pollster Ann Selzer, alleging violations of the Iowa Consumer Fraud Act. The complaint centers on a poll published by the Register in early November that understated Trump’s support, showing Vice President Kamala Harris with a 3-point lead over Trump in Iowa just days before Trump went on to win the state by 13 points.

Trump’s suit alleges the poll was fraudulent and an attempt at election interference. The Register has said it stands by its work.

Several experts who have reviewed Trump’s petition say his legal theory is a stretch. Samantha Barbas, a professor and First Amendment expert with the University of Iowa College of Law, said Iowa’s consumer fraud law is a poor fit for Trump’s complaint.

The Iowa Consumer Fraud Act “is meant to protect people who buy goods or services, not people who consume news and other sorts of information,” Barbas said. “So this is completely far-fetched, in my opinion, and other than Trump’s lawsuit here, and he has a similar case going on in Texas, I’m not aware of parties that have used a consumer fraud statute to punish or sue newspapers for information they don’t like.”

The Texas case in question is one Trump filed in November against CBS News, alleging the network violated Texas’ consumer fraud statute by deceptively editing a “60 Minutes” interview with Harris. That lawsuit remains pending before a Texas federal judge, and CBS has moved to have it dismissed.

Iowa consumer law expert says lawsuit without precedent

Bill Brauch, a retired attorney who served as director of the Iowa attorney general’s consumer protection division from 1995 to 2015, said he also is not familiar with any cases applying Iowa’s law in this manner.

“I practiced law in this area for 30 years, I have never heard of anyone being sued in the media for publishing a story,” said Brauch, who is now chair of the Polk County Democrats.

Brauch further questioned how a news article could fall under the definition of “merchandise” in Iowa’s law, which forbids deception in relation to the sale of “objects, wares, goods, commodities, intangibles, securities, bonds, debentures, stocks, real estate or services,” especially as the complaint does not allege that Trump actually bought a copy of the newspaper.

“It is a real stretch to argue that somehow a story that you don’t like in a newspaper gives you a cause of action for consumer fraud.” he said. “Who is the consumer who’s been defrauded? How would Donald Trump have been defrauded?”

Washington court rejected similar claims against Fox News

Eugene Volokh, a UCLA professor and fellow with the free market-oriented Hoover Institution, wrote Dec. 18 for the libertarian-leaning publication Reason that “the First Amendment generally bars states from imposing liability for misleading or even outright false political speech, including in commercially distributed newspapers — and especially for predictive and evaluative judgments of the sort inherent in estimating public sentiment about a candidate.”

Volokh cited a 2020 case from Washington state courts, where a group sued Fox News alleging that its statements by its show hosts, including Sean Hannity, dismissing or minimizing the COVID-19 pandemic violated that state’s consumer protection laws. Both the district judge and appellate courts in Washington rejected that claim, finding that statements of opinion on a topic of public concern are core First Amendment-protected speech.

“There are some historically recognized exceptions to First Amendment protection for knowing falsehoods, such as for defamation, fraud, and perjury. But those are deliberately exceptions,” Volokh wrote. “Defamation is limited to knowing (or sometimes negligent) falsehoods that damage a particular person’s reputation. Fraud is limited to statements that themselves request money or other tangibly valuable items. Perjury is limited to lies under oath in governmental proceedings. There is no general government power to punish political falsehoods outside these narrow exceptions.”

Lawsuit part of pattern of threats against media, professor says

Barbas noted that Trump has a history of filing lawsuits against the media, usually raising claims for defamation. That includes a lawsuit against ABC News, accusing anchor George Stephanopoulos of falsely stating Trump had been found liable for rape. ABC settled that suit earlier in December for $15 million.

“Defamation law wouldn’t apply in this situation, because in order for there to be the legal action for defamation, somebody’s reputation has to be harmed. And Trump couldn’t claim that his reputation was harmed by a poll saying that he was behind,” she said. “So his lawyers kind of reached for this unique theory of consumer fraud.”

Whether the new lawsuit, currently pending before an Iowa federal judge, has merit or not, Barbas said subjecting media organizations to the threat of litigation can have a chilling effect.

“Trump and his allies have made a number of threats in recent months against news publications and book publishers, mostly threatening to sue for defamation over critical comments, and the ABC settlement showed that Trump can get news organizations to essentially bow to him,” she said. “I think that has emboldened him, as this Iowa lawsuit seems to suggest, and I’m confident that there will be more, similar suits in the weeks and months to come.”

Nicholas A. Klinefeldt, an attorney representing the Des Moines Register in the case, said the First Amendment guarantee of press freedom, not a state law on consumer fraud, is the central principle involved.“In Iowa, elections are not consumer goods for sale. President Trump’s attempt to assert his ridiculous theories about election interference via a claim under the Iowa Consumer Fraud Act will not stand,” Klinefeldt said. “The Iowa Consumer Fraud Act was intended to protect Iowa consumers and not to become a vehicle to intimidate the press. We have full confidence that President Trump will fail in this attempt.”

The Trump presidential transition team did not respond to a request for comment.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.

This article originally appeared on Des Moines Register: Trump fraud lawsuit against Register unlikely to succeed, experts say

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