Imagine if Harry Truman sued the Chicago Tribune for publishing the famously inaccurate headline, “Dewey Beats Truman,” after the 1948 election. That would be the closest analogy to president-elect Donald Trump’s bizarre lawsuit filed this week against Iowa pollster Ann Selzer, The Des Moines Register, and Gannett, which owns the Register.
Trump won the election. But the incoming president can’t just satisfy himself in the knowledge that he defeated an incumbent administration and that in the process, he gave the legacy press that despises him a good, swift kick as well. The wildly inaccurate Iowa poll published on the eve of Election Day is, in Trump’s mind, evidence of an elaborate fraud on the American people.
“Before this astonishing sixteen-point polling miss Selzer brazenly claimed: ‘It’s hard for anybody to say they saw this coming,’ ” read Trump’s complaint, which was filed in Polk County, Iowa. “However, as Selzer well knew, there was a perfectly good reason nobody ‘saw this coming’: because a three-point lead for Harris in deep-red Iowa was not reality, it was election-interfering fiction.”
Normally, this would be—and, indeed, should be—the stuff of Truth Social posts and op-eds. But this time it’s the opening salvo in a lawsuit against Iowa’s leading newspaper and a woman long known as the state’s most respected pollster. And it appears that it is part of a broader strategy of Trump’s, to sue the pants off media companies. Trump already has active suits pending against Washington Post reporter Bob Woodward, the Pulitzer Prize Board, and CBS News.
So far, one media company has capitulated. Last Friday, Disney, the parent company of ABC News, agreed to pay $15 million to Trump’s future presidential museum and foundation to settle a defamation lawsuit the incoming president filed against the network and one of its biggest stars, George Stephanopoulos. In March, the This Week host repeatedly claimed while interviewing South Carolina Republican representative Nancy Mace that a New York jury had found in a civil case that Trump raped advice columnist E. Jean Carroll. In fact, the jury explicitly ruled that Trump was liable for sexual abuse, not rape.
Many of my fellow journalists have chastised ABC News for settling the case, fearing it sets a bad precedent. But in this instance, even under the very high bar set for proving defamation of a public figure in the 1964 New York Times Company v. Sullivan case, ABC was in a tough spot. In July, the presiding judge ruled against dismissing the case, stating that Stephanopoulos had said not once, but repeatedly, that Trump had been found liable for rape. “A reasonable jury could interpret Stephanopoulos’s statements as defamatory,” Judge Cecilia Altonaga ruled.
Compare that legitimate case to Trump’s lawsuit against The Des Moines Register, Ann Selzer, and Gannett. Trump is filing his suit through Iowa’s Consumer Fraud Act, a statute that is designed to protect consumers from dishonest marketing, scams, false advertising, and the like. If this statute can now be applied to polls a newspaper publishes before an election (even if the polls are shoddy), then it would potentially create a backdoor way to regulate political speech.
Randy Barnett, a constitutional law professor at Georgetown University’s Law Center, told The Free Press that he was open to the argument that Selzer’s poll may have been deliberately rigged to hurt Trump on the eve of the election.
The problem, he said, was that the lawsuit failed to meet a key requirement of the Iowa statute the newspaper and pollster is supposed to have violated. “Whatever the unfair practice, it has to be done with the intent that others buy something,” Barnett said. “The alleged falsehoods of the poll—let’s assume it is falsely made—well, nobody has been induced to buy anything as a result of the deception. It’s missing an element of the offense.”
Barnett is a conservative libertarian legal scholar. He is not a Trump hater and does not oppose Trump bringing legal action against media outlets. He noted in the interview, for example, that Trump himself has been the subject of untested and novel legal theories in prosecutions against him. “As weak and preposterous as this lawsuit may seem on the surface, there is a turnabout-is-fair-play element that is going on,” he said. That said, he believes that lawsuits must be legally valid, no matter who brings them. And in his view, this one does not meet that standard.
Beyond the legal weaknesses of Trump’s lawsuit, there is a deeper issue. Trump is waging the same kind of lawfare against media outlets and a pollster that he has rightly decried in the last four years. If weaponizing the law—whether through prosecutions or civil suits—is wrong for his adversaries, it’s also wrong for Trump. Instead of deepening a cycle of norm violations, Trump has an opportunity to end them.
Besides, his victory last month should satisfy his need for vindication. Settling scores with newspapers and pollsters is not the reason why his voters elected him. Trump has said he will not seek retribution, but his lawsuit in Iowa sure looks like he is.
Add to this that Selzer herself has already digested quite a bit of crow for her Iowa poll. On November 17, she penned a mea culpa for The Des Moines Register, announcing that she would no longer conduct polls for the newspaper. “Polling is a science of estimation, and science has a way of periodically humbling the scientist,” she wrote. “So, I’m humbled, yet always willing to learn from unexpected findings.”
That ought to be enough to soothe the ego of Trump and his millions of supporters. Perhaps he could learn from one of his predecessors. When the Chicago Tribune muffed the headline after the 1948 election, President Harry Truman held up a copy of the erroneous newspaper and reportedly told the press, “That ain’t the way I heard it.”
In other words, Trump should take the win and move on.
