So … here’s a post, mainly about Trump’s lawsuit against the Des Moines Register et al., because they published a poll that turned out to be wrong, and his allegedly forthcoming lawsuit against CBS because he didn’t like the way they edited a Sixty Minutes interview.
In my view, Tim Miller makes some good points in the video, but let me cut to the chase, as the high flyers like to say.
“Commercial Speech” or “Political Speech”?
Commercial speech is now (and has been for some years) deemed to enjoy limited First Amendment protection, but is subject to regulation, in order to prevent fraud in the sale of goods and services. One such law is the Iowa Consumer Frauds Act—the only law that Trump’s lawyer claims was violated by the newspaper and the pollster.
The legal regime that governs political speech is very different from that governing commercial speech. Political lies are generally protected from judicial scrutiny by freedom of speech and freedom of the press. A moment’s reflection will let you see the reasons for this principle: in essence, to protect the political process and to protect the courts from being politicized.
In the Iowa case, it’s unlikely in the extreme that the poll’s error was intentional, on the part of the pollster, or the newspaper, or the newspaper’s parent company. But let’s pretend we’re in law school, and let’s assume, for the sake of the discussion, that the pollster and the newspaper did lie intentionally.
Trump’s lawsuit should be summarily dismissed. First, the words of the Iowa Consumer Frauds Act don’t apply to the alleged intentional political lie. Second, it’s highly unlikely that the Iowa Legislature intended its Consumer Frauds Act to apply to political speech. Third, even if the Legislature did have such an intent, its intent to regulate political speech would violate multiple legal precedents on freedom of the press and freedom of speech.
And, By the Way, People Who Live in Glass Houses Shouldn’t Throw Stones
If Trump wins his Iowa lawsuit—which he will not—then he will have created a precedent under which he can be prosecuted for multiple violations each day, if not each hour.
Defamation, the N.Y. Times v. Sullivan Rule, and the Finer Points of Rape
“Creative” as he was—in the pejorative sense of the word—the legal genius who crafted Trump’s Iowa lawsuit did not claim defamation, because predicting that you’re going to lose an election does not reflect badly on your character.
By contrast, in the recently settled Trump case against ABC News, Trump worked himself into a high dudgeon because the jury only found he had forcefully inserted his middle finger into the victim’s vagina—not his actual dick—where has New York law on “rape” would have required penetration by the presidential pecker. Sexual assault? Yes. “Rape”? No. How dare you accuse My Excellency of rape when I only victimized her vagina with my finger!
Many have criticized ABC and its parent, Disney, for “caving” to Trump. Personally, I think it was a tough call—and I think it’s generally a good idea to apply some nuanced analysis to a generally difficult situation, not just to hurl bumper sticker insults. If you’re interested, I recommend this article from the New York Times: Inside Disney’s Decision to Settle a Trump Defamation Suit: Talks started and finished on the same day, after Disney decided that fighting the lawsuit could potentially hurt the company and protections for the press.
Facing MAGA 