AAPOR 2026 Amicus Brief Overview

The DENNIS DONNELLY, Plaintiff-Appellant, v.  DES MOINES REGISTER AND TRIBUNE CO., INC., et al. lawsuit centers on claims that a pre-election poll published by the Des Moines Register was professional negligence and consumer fraud.

The plaintiff argues that the poll’s results—which was an outlier compared to other surveys—caused harm and should give rise to legal liability. In response, the defendants maintain that polling is a form of protected speech grounded in statistical estimation, not a guarantee of outcomes.

The case raises broader questions about whether pollsters can be held liable for results that diverge from election outcomes. Its implications extend beyond this dispute, potentially affecting First Amendment protections and the future of public opinion research.

AAPOR Amicus Brief

On April 21, 2026, AAPOR submitted a Brief of Amicus Curae to the U.S. 8th Circuit Court of Appeals, in response to the lawsuit.

AAPOR’s amicus brief emphasizes that scientifically conducted polling is a form of protected First Amendment speech and should not be subject to liability simply because results differ from eventual election outcomes. The brief explains that polls are estimates grounded in probability, where uncertainty, variation, and occasional outliers are inherent—not evidence of misconduct—and warns that allowing lawsuits based on hindsight would chill independent research, discourage publication of results, and ultimately reduce the availability of credible public opinion data.

By urging the court to affirm dismissal, AAPOR is working to protect the integrity, transparency, and independence of public opinion research.

Why This Brief Matters

• This case is about more than one poll; it’s about protecting the future of public opinion research. The outcome could fundamentally change whether polling and other survey professionals can operate without fear of legal liability.
• AAPOR is defending First Amendment protections for free speech. Public opinion polling sits at the heart of democratic discourse and must remain protected—even when imperfect.
• The brief reinforces that democracy depends on access to independent, evidence-based measures of public opinion. Without polling, public discourse around elections risks being driven by speculation rather than data.
• This is about safeguarding the integrity of the information ecosystem. Limiting polling would reduce transparency and weaken informed decision-making by voters and policymakers.

Core Scientific Principles AAPOR Is Defending

• Polls are estimates—not predictions or guarantees. They provide a snapshot of opinion at a moment in time, not a promise of future outcomes.
• Uncertainty is inherent and unavoidable in survey research. Even the most rigorous methodologies cannot eliminate all sources of error.
• Polls conducted according to accepted methods are expected to yield varied results. Understanding that error is inherent in surveys, pollsters and survey scientists work to mitigate those errors.
• Outliers are a normal and expected feature of statistical systems. In any set of polls, some results will naturally fall outside the consensus—even when methodologically sound.
• A single poll cannot be judged solely against election outcomes. Voter preferences shift, turnout varies, and real-world behavior evolves after polling is conducted.
• Polling involves informed professional judgment at every stage. From sampling to weighting, decisions are made under uncertainty—not with perfect foresight.

Risks if the Court Rules Against the Defendants

• Liability tied to outcomes would chill not only election polling activity but broader survey and public opinion activities. Researchers would avoid publishing results that could expose them to legal risk.
• The likely result is not better polling but less polling, especially among academic, nonprofit, and smaller organizations without legal resources to fight challenges.
• Self-censorship would reduce methodological diversity. Remaining polls would cluster around “safe” consensus estimates, increasing systemic blind spots.
• The public would receive a narrower, less accurate picture of opinion. Suppressing outliers in any area of focus artificially distorts the range of possible outcomes.
• This would set a dangerous precedent beyond polling and surveys. It could open the door to liability for other forms of predictive or probabilistic analyses (e.g., economic forecasts, weather models, etc.).

AAPOR’s Bottom Line

• Polling and public opinion surveys must remain protected as independent, transparent, and scientifically grounded speech.
• Holding polling professionals liable for statistical variation misunderstands both science and the Constitution.
• A healthy democracy depends on a wide range of credible, methodologically sound voices—even when they disagree.

In summary: Protecting polling protects democracy

AAPOR extends its sincere appreciation to members Mary Losch, Jordon Peugh, Josh Pasek, and Andrew Mercer, as well as AAPOR Counsel Stuart Pardau (Law Offices of Stuart L. Pardau), for their leadership in developing and reviewing the brief. Special thanks to Caesar Kalinowski IV, Shontee Pant, and Nicole Saad Bembridge of Davis Wright Tremaine LLP for generously donating their time and expertise to draft and submit the brief.