It says something, I don’t know what, that Reason, the libertarian magazine and website would choose a non-lawyer to rail against Donald Trump’s lawsuits against news organizations. Jacob Sullum exposes his ignorance when he says, repeatedly, that the suits are “plainly” and “patently” frivolous. Whatever they are, frivolous they are not. A suit is not frivolous under the legal ethics rules (3.1) unless it cannot possibly prevail if the court accepts new theories of how the law should be interpreted. Many said that Trump’s lawsuit against ABC was frivolous. As Nelson Muntz would say, “Ha ha!”
Trump filed a suit against CBS in the U.S. District Court for the Northern District of Texas on October 31 in response to “60 Minutes'” deceptive editing of its Kamala Harris interview, claiming it violated that state’s Deceptive Trade Practices Act and cost him “at least” $10 billion in damages. Trump filed another suit against The Des Moines Register this week claiming that the newspaper publicizing of an inaccurate—let’s say wildly inaccurate presidential poll violated Iowa’s Consumer Fraud Act.
I think the Iowa suit is a stretch, and I don’t see how CBS’s “60 Minutes” cheat cost Trump $10 billion. But the Des Moines Register poll was incompetent and irresponsible (the veteran pollster responsible retired after the election) and the “60 Minutes” stunt was as blatant an example of a news organization slamming its fist on the metaphorical scale to get an election result it wanted as we have ever seen.
In addition to his ignorance, Sullum exposes his bias by describing what happened like this: “A month before the presidential election, 60 Minutes aired an interview with the Democratic nominee, Vice President Kamala Harris, that was edited to make her response to a question about Israel “more succinct,” as the show’s producers put it.” Uh, no, the program took one of Harris’s trademark word salads that made her sound like what she is, a hopeless phony, and replaced it with another statement in the interview making it look like it was her response to the question that had actually prompted gibberish. The flagship CBS news magazine has to this day refused to release the unedited transcript of the show, and I, as well as lots of other people, would love to see it uncovered in discovery. As for the late Iowa poll that showed Harris winning a reliably conservative state, one might wonder if there are smoking gun emails in which the editors of the Des Moines Register discuss how the shocking results might give Harris a boost and, you know, save democracy. I might wonder. Let’s find out!
Sullum says, playing Chicken Little, “In both cases, Trump implausibly describes news reporting as “election interference” that constitutes consumer fraud because it misleads viewers or readers. It is hard to overstate the threat that such reasoning, which seeks to transform journalism that irks Trump into a tort justifying massive damage awards, poses to freedom of the press. Although neither lawsuit is likely to make much headway, the cost of defending against such litigation is apt to have a chilling effect on journalism, which is what Trump wants.”
No, what Trump wants, and what any objective American should want, is for journalists to stop lying to readers and viewers to advance their own ideological agendas. That’s not journalism; indeed, “election interference” describes what was going on in the news media’s campaign coverage much more accurately than “journalism.”
Surveys of the news coverage on NBC, ABC and CBS during the last campaign show that it was probably their most unbalanced and biased in modern history:
Anyone who paid attention to these campaigns can’t be surprised. This kind of bias is, or should be, intolerable, and one reason it keeps getting worse by the year is that news organizations think the First Amendment relieves them of accountability. It doesn’t, and it shouldn’t. If lawsuits like Trump’s help expose the corruption in these propaganda mills and make them realize that flagrant abuse of their special status will not be accepted without pushback, protest and resistance, that is not a “chilling effect,” that’s called incentive to do better. Be professional, report the facts, don’t cheat, don’t spread fake news while ignoring events and conduct that support the positions of the “other side,” and there will be nothing to sue over. The First Amendment was never intended to be a license to mislead the public.
Ethics Alarms 
Jack Sorbo?
Yeah, that’s what his friends call him.
OK, I actually have an excuse for that one. I wrote that post while punchy after three days of intense deposition prepping by a lawyer named Jack DiSorbo—yesterday it went from 11 to 4:30. While I was typing, I actually thought, “Huh? What a coincidence…this guy’s name is almost exactly the same!” Fixed. Thanks.
I don’t think they are frivolous either. I just don’t think they will have the affect we want them to have. Rather than report the news fairly, they will be incentivized to further demonize Trump as an enemy of Freedom of the Press. They may throw a few sacrificial lambs on the altar, but it will not change.
After all, insurance companies aren’t going to stop denying claims because some ideologue decided to murder the CEO of an insurance company. The companies are just restricting information about their CEOs and providing extra security.
What is the purpose of releasing polling data if not to influence voters? I can think of no reason for someone other than the candidate to do any polling except to convey to potential voters that a specific candidate is leading and creating the impression you do not want to be on the losing side.
This becomes even more obvious when the poll provides the info on the slicing and dicing that it does. What the papers are doing is juicing the animal spirits in various population segments to behave in a preferred manner. If the paper shows that Blacks and Latinos favor candidate x voters with limited knowledge of the candidates then rely on the wisdom of the majority and follow suit. The same occurs with senior citizens who are no more likely to understand the issues than a younger demographic. If a newspaper is conducting a poll is it doing so to gauge the effectiveness of its journalistic slant? Polling data does not educate voters one iota on the issues each candidate favors.
Personally, I would like to have all polls banned except those conducted internally by candidates. I was called a dozen times by Rasmussen this past election season.
The best I can tell, there is no tort for “election interference,” which I presume is conceived to fall under illegal electioneering (perhaps in the form of an in-kind contribution). Regarding the two lawsuits you discussed:
The pollster in question is known for not using much “weighting” in her polls, trusting her sampling technique. Sampling techniques in public polling have long been becoming more challenging for several reasons, the most famous of which is the “shy Trump voter” but also for other less well-covered causes.
It is possible that Ann Selzer knowingly biased her sample, but her reputation is very good, or was. My best guess is that there is one of two causes for her outlying poll — 1) an unusually biased sample or 2) she was actually more lucky than good on her much-touted prior polls.
I’m glad he filed these suits for no other reason than to keep the events that inspired them in the news. Even if he loses, in my opinion, he wins by exposing the media’s obvious bias to people who may not otherwise pay enough attention, and the suits may attract whistle-blowers. In fact, he should continue as many of these suits as he can afford to keep the issue front and center especially early in his term.
Finally, I find Sullum a poor writer for Reason on most subjects. He is very much like a blue-dog Democrat in that he appears to be reflexively contrarian rather than thoughtful, and a careful review of his writing shows he is afflicted with a milder version of TDS. I mostly visit reason for the Volokh Conspiracy, which I consider indispensable to our republic.
The Selzer poll used a rather small sample. If you can show that the sample was wildly different than the electorate, or you have emails from her discussing how to undermine Trump’s campaign, you have a case. Don’t rule out that such discussion took place and there are probably evidence of them. The previous polls used had increasingly large percentages of registered Democrats, fewer registered Republicans, and a shockingly small number of independents. This should have resulted in a large uncertainty for the poll, which this one purported not to have. This poll was supposed to be the gold standard of political polls, she was supposed to be competent. Such a ‘mistake’ is hard to pawn off on incompetence or inexperience.
Harris demanded editorial control of her interviews with other media outlets. Joe Rogan publicly stated that Harris’ staff demanded to be able to edit the interview before it aired. This was supposed to be a journalistic interview. If the edits were done because the Harris campaign had ‘creative control’ of the interview, then this really was a Harris campaign ad promoted as a piece of journalism by an FCC regulated entity. The FCC has policies against slanting or intentional distortion of the news. This was obviously both. I don’t see how this counts as frivolous. On the face of it, they violated their FCC license by doing it.
As for the ‘damages’, I wonder if the Trump team is using the formula the State of New York uses for ‘damages’?
Showing the sample is “wildly different” in a legal context is, for all intents and purposes, impossible. Judges will not substitute their expertise for that of a professional pollster. It’s a very high mountain, in my view, and unlikely to be scaled. I am highly skeptical of a conspiracy also. But to be fair, both eventualities are a non-zero possibility, if very unlikely.
Michael R. wrote: The FCC has policies against slanting or intentional distortion of the news. This was obviously both.
From fcc.gov:
News distortion “must involve a significant event and not merely a minor or incidental aspect of the news report.” In weighing the constitutionality of the policy, courts have recognized that the policy “makes a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion.” As a result, broadcasters are only subject to enforcement if it can be proven that they have deliberately distorted a factual news report.
I don’t think having a finger on the scales of debate fact-checking is sufficient to meet this standard. Your mileage may vary.
If CBS edited the interview to make it look like a response to question B was actually the response to question A, then I think that’s pretty deliberate and passes the test.
–Dwayne
Regarding the Iowa poll:
I’m an Iowan, and when that poll came out the weekend before the election, most of us – including a couple of non-Republican friends – smelled a rat. On these pages, I opined that it was a “Hail Mary” by the Des Moines Register to discourage Trump supporters and push Democrats who were borderline on Harris to the voting booth.
If anything, it had the opposite effect: it got Republicans out in droves and created the most lopsided result – a thirteen-point Republican win – in our state since Nixon’s second win.
Still, I would love to see the background around that poll. Selzer does (did?) have a pretty good reputation for accuracy, but this was an absolute moozer. Curiously, go back and watch video of the liberal news coverage around that poll. In typical “lemming” fashion, nearly all of them referred to Selzer’s work as “the gold standard” in polling. Those three words – “the gold standard” – were used in the overwhelming majority of the reports – CNN, MSNBC, Brian Tyler Cohen, Meidas Touch – all of them. You can almost create the email chain in your mind:
Selzer: I’ve got this poll showing Harris leading in Iowa.
DSM Register: Send it over!
Selzer: Here you go…
DSM Register: OMG!!
DSM Register (to the DNC): Look at this poll we just got from Selzer. It’s nuts! This one is a wild outlier from everyone else’s, but it’s front-page top-fold tomorrow. Selzer is a bell-weather in polling.
DNC (to the media outlets): Get a story together on the Selzer Iowa poll. She’s the gold standard, so be sure to emphasize that…”the gold standard”.
They are getting settled to avoid discovery and the inevitable unnamed.sources leaks.