The attorney for President Donald Trump argued in court Friday that while he has no evidence to support a claim that a 2024 pre-election poll constituted fraud, the president’s lawsuit against The Des Moines Register and its pollster should be allowed to proceed.
The president has claimed in court that the opinion poll, published just three days before the November 2024 election and showing him trailing his Democratic opponent, Kamala Harris, by 3 points in Iowa, was fraudulent. He is suing the newspaper and pollster J. Ann Selzer, alleging consumer fraud and citing the fact that he ultimately beat Harris in Iowa by more than 13 points.
The Register and Selzer recently filed motions to dismiss the lawsuit, arguing that an election poll, regardless of its results, does not fit the Iowa Consumer Fraud Act’s definition of a commercial transaction, and that the lawsuit is also barred by the First Amendment’s protection of free speech.
In written briefs filed with the court this week, Selzer’s attorney, Robert Corn-Revere, called the legal claims made by the president and his attorneys “not just wrong — they are ridiculous.” He asked the court to dismiss the case, arguing that even if all of the president’s factual assertions were deemed true, there’d still be no legal basis for the lawsuit.
On Friday, a Polk County District Court judge heard oral arguments on the motions to dismiss.
Quotation
Your honor, there’s an old saying that everything looks like a conspiracy to those who don’t know how anything works. And that sums up this case in a nutshell.
– Robert Corn-Revere, attorney for pollster J. Ann Selzer
At the hearing, Corn-Revere attacked the underlying premise of the lawsuit — that the polling results themselves were a “lie” or were fabricated, perhaps without any polling ever actually being conducted — and the legal foundation for the claims asserted by the president.
“Your honor, there’s an old saying that everything looks like a conspiracy to those who don’t know how anything works,” Corn-Revere, told the court. “And that sums up this case in a nutshell. The plaintiffs here do not understand how election polling works, so they have tried to concoct a case made from the tissue of campaign slogans and conspiracy theories. The issue here, for this motion to dismiss, is whether any of that adds up to a cognizable legal claim. It doesn’t. This is a frivolous case that doesn’t belong in this, or any, court. It’s based on a label — ‘fake news’ — and not on any recognized claim.”
The president’s lawsuit hinges in part on an assertion by his attorneys that the polling results fall under the category of “commercial speech,” which is afforded less protection by the First Amendment. Corn-Revere argued otherwise on Friday, citing the lack of any legal precedent for treating news stories produced for revenue-generating media organizations as commercial speech.
Polk County District Court Judge Scott J. Beattie directed most of his questions during the hearing to the Iowa attorney representing the president, Alan R. Ostergren, and twice expressed the concern that there could a “chilling effect” on the exercise of free-speech rights should the lawsuit be allowed to proceed at this stage.
Ostergren acknowledged the president’s case is based on a “novel” legal theory that has not been tested by the courts, but argued that’s only because the defendants’ alleged conduct — concocting a phony election poll — has no precedent.
Judge cites potential ‘massive chilling effect’
The attorney for The Des Moines Register, Nicholas Klinefeldt, argued that the courts are required to dismiss lawsuits when there’s a finding that the claims are legally deficient and there is no right, as a matter of law, to recover damages.
He told the court the lawsuit was filed immediately after the 2024 election and that now, a year and half later, there still is no valid legal claim being asserted by the president.
Klinefeldt noted that the election poll that’s at issue is not a statement of fact, but “is a poll, it’s a scientific opinion,” and said that in order for the president to show a violation of the Consumer Fraud Act, he must show that he relied on the polling results and that he did so in the context of purchasing consumer merchandise.
“There can be no set of conceivable facts that would result in damages” in the case, Klinefeldt told the court.
In arguing against dismissal, Ostergren said he had no obligation at this point in the proceedings to show evidence supporting the president’s claim that the poll was fabricated or rigged in some fashion. “The law is that all we have to do is put the defendants on notice as to why they are being sued,” Ostergren said.
In response, Judge Beattie asked Ostergren whether he still has some obligation to articulate the specific elements of the legal claims being made.
Ostergren rejected that position and said that after discovery takes place and evidence is gathered, the defendants can argue for summary judgment in their favor but until then, the case should be allowed to proceed.
“Do you believe that is even the case when there is an issue with First Amendment import?” Beattie asked Ostergren. “It seems like there’d be a massive chilling effect if any case is allowed get past the motion-to-dismiss phase for a defendant of this nature.”
Ostergren argued the First Amendment does not protect against fraud and said it will be impossible to determine to what extent that exception to the First Amendment applies in the case at hand until the discovery process produces documents and evidence.
“We need to know how the poll was conducted and whether a poll was conducted,” Ostergren said. “We take it just on a simple assertion from the defendants that this was actually calling people and asking their views. What was the process when these flawed numbers were being considered and vetted? … What decisions were made about going ahead in the face of information that were so utterly implausible that it defies belief, that it could be anything other than deliberate misconduct? … These are all things we have to know.”
President’s lawyer questions poll’s existence
Beattie reiterated that Ostergren’s position “gives me pause,” particularly because of the potential impact the case could have on First Amendment rights of free speech.
“Because of the massive – I’ll say it – because of the massive First Amendment implications that are here, there is an element of chilling that would come with that,” Beattie said.
Judge Beattie also noted that with regard to the president’s argument that the polling results should be treated as commercial speech, “there’s not a lot of support” for such a position and characterized it as “fairly unprecedented.”
Quotation
I will readily admit that there is a certain novelty to the claim that we are pursuing,
– Alan R. Ostergren, attorney President Donald Trump
Ostergren acknowledged that there is no case law to cite to support that critical point.
“I will readily admit that there is a certain novelty to the claim that we are pursuing,” he admitted, but added that “this is a historic manipulation by a news organization, in our view, of abusing its position and putting a product out into the market on the eve of a highly contested election, which all indications show was fabricated — or to the point of such colossal mistake upon mistake upon mistake and then pushed out the door that it becomes misconduct. And I don’t know of anything like that that has ever happened in the history of our political and media system in that exact way.”
Ostergren argued that while the defendants have First Amendment rights, individuals have the right to run for office without a “manipulation” of the electoral process. He called the polling results a “lie dropped in the middle of our political process.”
Beattie asked Ostergren how he could show the president relied on the polling results and was then damaged by that reliance.
“You, in your own pleadings, spend a fairly significant amount of time talking about how the polls previous to this one were not reliable and you guys knew about it and President Trump, immediately after it being released, talked about how it was garbage,” Beattie said. “So how can you say you relied upon (the poll results) in any way, shape or form?”
In response, Ostergren said that at this point in the case, reliance need not be proven and he reiterated his belief that the poll represented “a news organization creating a lie, and people were damaged terribly trying to deal with the consequences of that three days before Election Day.”
On rebuttal, Corn-Revere argued that “even if you accept the conspiracy theories and even if you accept the wildest claims these people are willing to make,” there still is no legal basis for the lawsuit that Trump is pursuing, which means dismissal of the case is required of the court.
“No matter how false Mr. Ostergren has convinced himself the poll is, or how nefarious the motives behind it, it simply is not a claim that would be recognized under the First Amendment,” he said.
Beattie said he will review the arguments and briefs related to the motion to dismiss and said he doesn’t expect to have a decision for “several weeks,” given the other cases he’s currently handling.