Two Trump suits against mainstream media outlets

One for the good; the other not

In this post, I want to discuss two lawsuits Donald Trump has brought against mainstream media outlets. Together, they are the centerpiece of claims by the MSM that, in the words of the Washington Post’s Eugene Robinson, Trump “poses a serious threat to independent journalism.”

The two lawsuits in question are: (1) Trump’s suit against ABC over George Stephanopoulos’ false claim that Trump was found liable for rape and (2) his suit against the Des Moines Register for publishing the results of a poll that, quite mistakenly, found him to be trailing Kamala Harris in Iowa.

The first suit was completely justified and represents no undue threat to the media. The second suit is absurd and lends credibility to claims that Trump does indeed pose a threat to independent journalism.

During his interview of Rep. Nancy Mace, Stephanopoulos repeatedly said that Trump was found by a jury to have raped a women (E. Jean Carroll). This claim was false.

The jury in question found that Trump sexually abused and defamed Carroll, not that he raped her. In fact, the jury concluded that Carroll failed to prove that Trump raped her. To make things worse for ABC, according to this report, Stephanopoulos was warned by his executive producer not to use the word rape, but did it anyway.

ABC News settled the case for $15 million. This price tag has led to much hand wringing by the media, but I think ABC got off cheaply.

A New York jury awarded Carroll $83 million for damages in connection with Trump’s denial of her account of his alleged rape. More than $18 million of that amount was for “compensatory damages.” The remainder was punitive.

Put aside the fact that a jury had found that Trump didn’t rape Carroll. If Carroll suffered $18 million in damages due to reputational harm when Trump denied her account of the incident, Trump, who was running for president, must have suffered considerably more when Stephanopoulos claimed that a jury found him liable for rape. And that’s without factoring in punitive damages.

The settlement of Trump’s suit against ABC News puts the media on notice that its partisan talking heads can’t lie with impunity about public figures they despise. If Trump’s successful suit has a chilling effect on such behavior, we should applaud.

Trump’s suit against the Des Moines Register is another story. The suit arises from that paper’s publication of a poll shortly before the November election that had Trump trailing Harris in Iowa. Trump is also suing Gannett, which owns the Register, and the pollster, Ann Selzer.

Selzer is (or was) highly respected for her ability to poll Iowans. However, the poll in question had Harris ahead in Iowa by three points. In the end, Trump carried the state by 13.

Trump isn’t suing for defamation. He couldn’t sustain such a claim. It’s not just the fact that he’s a “public figure,” and so would have to prove actual malice on the defendants’ part. It’s also that (1) there was no false statement by the Register — Selzer’s poll did have Harris in the lead and (2) he suffered no damages.

Trump’s attorneys claim that incorrect polls force Republicans to “divert campaign time and money to areas in which they are ahead” and “deceives the public into believing that Democrat candidates are performing better than they really are.” If the Trump campaign viewed Selzer’s poll as anything but an outlier, it’s the campaign’s fault. In any case, whatever might be true of incorrect polls generally, Trump won every state he could reasonably have been expected to carry. Thus, he wasn’t harmed by any diversion of time and money.

Trump is suing under the Iowa Consumer Fraud Act, rather than for defamation. That law provides:

A person shall not engage in a practice or act the person knows or reasonably should know is an unfair practice, deception, fraud, false pretense, or false promise, or the misrepresentation, concealment, suppression, or omission of a material fact, with the intent that others rely upon the unfair practice, deception, fraud, false pretense, false promise, misrepresentation, concealment, suppression, or omission in connection with the advertisement, sale, or lease of consumer merchandise, or the solicitation of contributions for charitable purposes

As I read the law, it doesn’t ban the sale of products that turn out to be flawed. There has to be deception in connection with the sale. Such deception by the newspaper appears to be lacking here.

It’s not fraudulent to publish a poll that turns out not to predict the outcome of an election correctly unless the poll itself is fraudulent. Outlier polls aren’t fraudulent, they are a fact of polling life. We see them all the time on Real Clear Politics. From all that appears, Selzer’s poll was just an outlier.

In addition, the Iowa Consumer Fraud Act provides a cause of action only for consumers “who suffer an ascertainable loss of money or property as the result of a prohibited practice. . .” As discussed above, Trump did not suffer an ascertainable loss of money or property due to the publication of the Selzer poll.

Moreover, and I think more significantly, Trump’s suit runs afoul of the First Amendment. As Eugene Volokh says:

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.

Professor Volokh supports this statement by citing and discussing the Washington Court of Appeals decision in WASHLITE v. Fox News, where the plaintiff unsuccessfully sued Fox News for allegedly false statements about COVID, and the U.S. Supreme Court’s decision in U.S. v. Alvarez.

I doubt that Trump’s team believes it can win a lawsuit this lacking in merit. However, the suit may prove expensive to defend.

Thus, the suspicion arises that Trump’s purposes are to punish the newspaper by causing it to incur legal fees and/or to signal to other media outlets that they will face similarly expensive lawsuits if they displease Trump. More narrowly, the signal may be that media outlets will be sued if their polls underestimate support for Republican candidates to a significant extent.

I consider these purposes illegitimate. And I believe Trump should be sanctioned if it turns out either that (1) his legal theories in the case, either statutory or constitutional, are frivolous or (2) he fails to produce evidence of fraud in connection with the poll.

Media bias against conservatives and Republicans is real and problematic. I have spent more than 20 years demonstrating and denouncing it on blogs. So have many others.

Until Donald Trump came along, we made limited headway. Trump has done a great service through his denunciations of "fake news.” At last, a great many Americans are coming to believe that the mainstream media is plagued by bias — and bias in one political/ideological direction only.

But Trump does Americans a disservice when he files frivolous, constitutionally problematic lawsuits against media outlets. Unhappiness with the MSM shouldn’t lead to affronts to the First Amendment.

Trump also does himself a disservice because he fuels claims by his opponents that he’s a threat to independent journalism. In effect, he allows the MSM to play the victim. He thereby risks turning the tide of public opinion back in its favor.

Trump should stick to meritorious suits like the one against ABC News and eschew silly and purely vindictive cases like the one against the Des Moines Register.