A federal judge dismissed a lawsuit that claimed Des Moines Register subscribers were harmed by the publication of a poll released in the lead up to the 2024 presidential election.
Dennis Donnelly of West Des Moines, who identified himself as a Register subscriber, alleged the Register, its parent company Gannett Co., Inc. and pollster J. Ann Selzer violated Iowa consumer fraud law when the paper released its final Iowa Poll of the 2024 cycle. The Iowa Poll showed Vice President Kamala Harris leading now-President Donald Trump by 3 percentage points just days before the election. Trump went on to win the state by 13 percentage points.
Donnelly’s lawsuit echoed similar claims made by Trump, later joined by Iowa U.S. Rep. Mariannette Miller-Meeks and former Iowa state Sen. Brad Zaun, in a separate lawsuit filed against the Register. Where Republicans Trump, Zaun and Miller-Meeks claimed the poll damaged their campaigns and electoral prospects, Donnelly argued the poll damaged the value of his Register subscription and sought to bring a class action on behalf of all Register subscribers.
The U.S. Federal Courthouse located at 111 Locust St. in downtown Des Moines.
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The lawsuit was pending before U.S. District Judge Rebecca Goodgame Ebinger. Ebinger also presided in Trump’s suit until a federal appellate court ruled in October that Trump should be able to dismiss his federal case and proceed in state court. The defendants in that case have made a motion to reargue the ruling requesting the appellate court reconsider its decision.
Donnelly’s suit was not part of the appeal, and in an order filed Thursday, Nov. 6, Ebinger granted motions from Selzer and the Register to dismiss it.
To avoid dismissal, a plaintiff must state sufficient facts to establish “a claim to relief that is plausible on its face,” Ebinger wrote, citing Supreme Court precedent. She ruled each of Donnelly’s claims was “insufficient to meet the plausibility standard.”
Ebinger wrote that in the context of media reporting on political events, only statements made with “actual malice,” knowing falsity or reckless disregard for the truth, can conceivably create liability in spite of the First Amendment’s protection of press freedom. The judge found Donnelly failed to allege any facts showing the Register intentionally falsified or tinkered with the design of its poll to produce an inaccurate result.
“Finding actual malice requires Donnelly to plausibly allege defendants sacrificed decades of work in cultivating (a) reputation for accuracy by ‘knowingly or recklessly’ manufacturing a poll they knew was incorrect in pursuit of an unclear goal,” Ebinger wrote. “With no factual allegations to support such an assertion and mere conclusory statements, Donnelly asserts only a bare legal conclusion accompanied by actual malice buzzwords that Defendants acted knowingly or recklessly.”
She also found that even without the First Amendment, Donnelly’s claims of fraudulent misrepresentation would fail “because no false representation was made.”
“Defendants conducted a poll using a particular methodology yielding results that later turned out to be different from the event the poll sought to measure,” she wrote. “The results of an opinion poll are not an actionable false representation merely because the anticipated results differ from what eventually occurred.”
She likewise rejected claims of negligent misrepresentation, professional malpractice, violating the Iowa Consumer Fraud Act and interfering with the right to vote, finding in each case Donnelly failed to state a recognizable legal case.
‘A good day for the First Amendment’
The defendants praised the ruling.
“Today is a good day for the First Amendment,” Gannett Co. Chief Legal Officer Polly Grunfeld Sack said in a statement. “We are encouraged by the court’s recognition of the vital role a free press plays in our democracy and the total lack of merit underlying this lawsuit. The decision affirms basic First Amendment principles that are the basis of community news reporting in this country.”
Selzer also celebrated the result.
“The First Amendment’s protection for free speech and a free press held strong,” she said in a statement through the Foundation for Individual Rights and Expression, which represented her in the case. “I know that I did nothing wrong and I am glad the court also concluded that there was never a valid legal claim.”
“This decision shows where petty politics ends and the rule of law begins,” FIRE chief counsel Bob Corn-Revere said. “The court’s strongly worded opinion confirms that a legal claim cannot be concocted with political slogans and partisan hyperbole, and that there is no hiding from the First Amendment.”
Attorney Daniel Suhr of Chicago, representing Donnelly, said his client will continue to pursue the case.
“We’re reviewing the opinion, we plan to appeal, and we remain confident in our legal arguments,” Suhr said.
William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.
This article originally appeared on Des Moines Register: Des Moines Register subscriber’s Trump v. Harris poll suit dismissed
