Two interrelated concepts Donald Trump and his allies often expressed during the 2024 presidential race created serious worries about potential threats to freedom of expression during a second Trump administration. The first was an eagerness to pursue a judicial redefinition of constitutional constraints on defamation lawsuits in order to punish or intimidate media critics of the once and soon-to-be future president. And the second was a tendency to treat any development that might negatively affect the Trump campaign (e.g., prosecution of the former president for crimes and other misconduct or the substitution of Kamala Harris for Joe Biden as the Democratic nominee) as illegal “election interference.”
At the time, these ideas were sometimes dismissed as revenge porn aimed at “owning the libs” and entertaining MAGA activists, but they are becoming very real as Trump’s second inauguration draws nigh. The former president has just scored a legal win by reaching a settlement with ABC News over George Stephanopoulos saying on-air that Trump was found “liable for rape” in the E. Jean Carroll civil case, though he was actually found liable for “sexual abuse.” This settlement did not require any change in defamation law, but it will certainly encourage Team Trump to explore the legal limits.
And now Trump himself has threatened to sue pollster Ann Selzer over the poll she released days before the election that showed Harris winning Iowa by 4 percentage points (Trump won the state by 16 points). Apparently, this falls under Trump’s definition of “election interference,” as Raw Story reports:
During a Monday press conference, Trump was asked if he would continue to sue media outlets after settling a lawsuit with ABC News …
“I think you have to do it because they’re very dishonest,” Trump said of future lawsuits. “I’m going to be bringing one against the people in Iowa, their newspaper, which had a very, very good pollster who got me right all the time.”
“And then, just before the election, she said I was going to lose by three or four points, and it became the biggest story all over the world because I was going to win Iowa by 20 points,” he continued. “And in my opinion, it was fraud, and it was election interference. You know, she’s gotten me right always. She’s a very good pollster. She knows what she was doing.”
The premise seems to be that because Selzer is a “very good pollster” who knew what she was doing, either she or her media sponsors (the Des Moines Register and Mediacom) were trying to “rig” the election with a deliberately false (and widely doubted) finding that Harris was ahead in Iowa. The poll did get a lot of attention in a sort of man-bites-dog manner, but there’s no evidence it affected voting in Iowa or anywhere else (Selzer suggested the poll might have actually helped Trump win his big Iowa victory by leading his supporters in the state to believe that they needed to make a supreme effort). Beyond that, Selzer and her sponsors have been very transparent in publishing details about the offending poll and its methodology; if they’re hiding nefarious intentions, they’re doing an incredibly good job of it. It’s probably confused matters that after the election, she announced she was retiring from the polling business, as though she is afflicted by shame, but she credibly claims this retirement was in the works for a long time.
What should be clear, however, is that the standard Trump is proposing for stipulating criminal intent in any adverse poll he doesn’t like would shut down the entire polling industry. Who is going to publish a poll with unusual results if the candidate who didn’t get favorable numbers will immediately threaten a civil lawsuit or a prosecution by their government allies? There’s already a lot of pressure on pollsters and their media underwriters to nail every result or confess membership in various partisan cabals. Why take the risk of gathering or publishing any public opinion research at all? A plenary polling shutdown would please the many know-nothings who dream of an election cycle where the only publicly available information is harvested from reporters’ anecdotes, candidate spin, and selective leaks from the private polling that will undoubtedly continue. But it would be a terrible plunge into darkness for those who understand questionable data is better than no data at all.
Perhaps Trump is just bluffing about going after the Des Moines Register through the courts; long before he entered politics, he was notorious for using the threat of litigation to make adversaries and critics weigh the ruinous costs of battling his lawyers versus just doing as he wished. But when it’s the president of the United States firing these brushback pitches, a lot of people are going to retire from the game.
