The American Bar Association has a lovely motto: “Defending Liberty, Pursuing Justice.” But does it have the courage to publish a report critical of Donald Trump?
As the New York Times’ Adam Liptak is reporting, perhaps not. The organization “refused” to publish a report on Donald Trump’s history of First Amendment litigation, according to Liptak. Having developed an interest in Trump’s pledges to “open up” U.S. libel law, First Amendment lawyer Susan Seager proposed an article to the co-editor of the ABA’s “Communications Lawyer” publication. A month or so of writing and researching later, Seager finished her draft.
On Oct. 19, ABA Deputy Executive Director James Dimos intervened via email. Though he recognized merit in the story, he was concerned with the “the ad hominem arguments made in the article.” More: “The publishing of a partisan attack piece in the midst of a highly charged election season will certainly create the perception that the ABA is aligning with one political party against the other and will hurt our credibility with members.” (Seager shared the email with the Erik Wemple Blog.)
Nor was Dimos unaware of Trump’s record in this area: “[T]he gratuitous use of the ad hominem attacks will increase the risk of the ABA being sued by Mr. Trump. The article itself proves this point. While we do not believe that such a lawsuit has merit, it is certainly reasonable to attempt to reduce such a likelihood by removing inflammatory language that is unnecessary to further the article’s thesis. Honestly, it is the same advice members of the Forum would provide to their own clients.” According to Carol Stevens, a spokeswoman for the ABA, not every story due to run in “Communications Lawyer” gets attention at this level of the ABA. “In this case, staff who works with that publication asked senior management to take a look at it,” says Stevens.
The Dimos email accompanied a set of “redline” edits to Seager’s report. Addressing the co-editor of “Communications Lawyer,” Dimos wrote, “I would ask that you please give consideration to our suggested changes. I think that they do no harm to the article while addressing the legitimately held views of ABA staff who are charged with managing the reputational and financial risk to the Association.” Such language notwithstanding, Seager termed them “required edits” and decided to “pull” the analysis from the ABA.
The New York Times piece was “totally inaccurate.” Days before the story was withdrawn, Stevens says that she told editorial board members that the report was “insightful” and wanted to see it published. “We did not refuse to publish it,” says Stevens, adding that the ABA never had a chance to discuss changes with Seager. The ABA has asked the New York Times for a correction, says Stevens.
Just how ad-hominemmy were these ad hominem attacks? The Erik Wemple Blog wanted to know, so we checked with Seager. She sent along a full copy of the ABA “redline” document showing the requested edits, which Seager rejected. Instead of running the piece in “Communications Lawyer,” she placed it in the Media Law Resource Center. “I had to laugh when I read [the requested edits],” Seager tells the Erik Wemple Blog. “No, your censorship proves my point because Donald Trump uses frivolous lawsuits to chill speech and punish speech and so I thought the ABA proved my point.”
Below we lay out Seager’s version alongside the ABA’s edits, along with some commentary. Where helpful, we’ve added bolding.
Original: Donald J. Trump Is A Libel Bully But Also A Libel Loser
Edit: Presidential Election Demonstrates Need for Anti-SLAPP Laws
Skinny: Which story would you rather read?
Original: Donald J. Trump is a libel bully. Like most bullies, he’s also a loser, to borrow from Trump’s vocabulary. Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics
Edit: One of the many interesting facets of this year’s Presidential campaign has been the multiple attacks on the media, the First Amendment, and the judicial system itself by one of the candidates, Donald J. Trump. While many of these attacks have proved to be meritless, Trump certainly has experience with the courts, as he and his companies have been involved in a mind-boggling 4,000 lawsuits, and the First Amendment by sending countless threatening cease-and-desist letters to journalists and critics. Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics.
Skinny: From short and punchy to long and boring — that’s called editing.
No GOP, please
Original: But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court.
Edit: But the presidential nominee and his companies have never won a single speech-related case filed in a public court.
Skinny: Hard to see how the deletion of party affiliation advances any cause. Asked about that edit, Stevens acknowledge the point, but said, “We are an aggressively nonpartisan organization and that probably played into that suggested edit but then again, it’s a suggestion, open to discussion.”
Original: Media defense lawyers would do well to remind Trump of his sorry record in speech-related cases filed in public courts when responding to bullying libel cease-and-desist letters.
Edit: Media defense lawyers would do well to remind Trump of his losing record in speech-related cases filed in public courts when responding to threatening libel cease-and-desist letters.
Skinny: Legal editors know well that “losing” always beats “sorry,” and “threatening” always beats “bullying.”
Who are we talking about?
Original: Orangutans and joking aside, this examination of Trump’s libel losses also provides a powerful illustration of why more states need to enact anti-SLAPP laws to discourage libel bullies like Trump from filing frivolous lawsuits to chill speech about matters of public concern and run up legal tabs for journalists and critics.
Edit: Orangutans and joking aside, this examination of Trump’s libel losses also provides a powerful illustration of why more states need to enact anti-SLAPP laws to discourage libel bullies from filing frivolous lawsuits to chill speech about matters of public concern and run up legal tabs for journalists and critics.
Skinny: As if readers don’t know the identity of the central “libel bully” here.
Don’t judge the suit
Original: Trump filed his first and crankiest libel lawsuit in 1984 against the Chicago Tribune and the newspaper’s Pulitzer Prize-winning architecture critic, Paul Gapp
Edit: Trump filed his first libel lawsuit in 1984 against the Chicago Tribune and the newspaper’s Pulitzer Prize-winning architecture critic, Paul Gapp.
Skinny: The superlative form of the adjective “cranky” is to be avoided in all legal scholarship.
Original: The court also called out Trump’s doublespeak to which the American public is now quite familiar.
Edit: The court also called out Trump’s doublespeak, where Trump argued that…
Skinny: If the American public were really so familiar with Trump’s doublespeak, perhaps he wouldn’t have reached the finals of the U.S. presidential race.
No place for logic
Original: No wonder Trump wants to change libel law; he doesn’t understand it.
Skinny: The ABA will not abide writers using solid evidence to reach supportable conclusions. This is a point that Trump has proven over and over, most critically when he proposes to fix the system so that “when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
Original: For Trump to boast about winning this arbitration claim is misleading.
Edit: Trump’s boasts about winning this arbitration claim ring hallow [sic].
Skinny: Apparently the ABA doesn’t want to become the 6,000th organization — in addition to Ted Cruz — to correctly characterize Trump as a liar.
Original: Trump has zero sense of humor. But, boy, can he file a hilarious lawsuit! He proved that much when he sued HBO Real Time cable television show host Maher for not making good on Maher’s joke that Maher would donate $5 million to charity if the orange-haired and orange-tinged Trump could provide a birth certificate showing that Trump was not the “spawn of his mother having sex with an orangutan.”
Edit: Trump proved he can file a hilarious lawsuit when he sued HBO Real Time cable television show host Maher for not making good on Maher’s joke that Maher would donate $5 million to charity if Trump could provide a birth certificate showing that Trump was not the “spawn of his mother having sex with an orangutan.”
Skinny: No Trump-orange commentary in “Communications Lawyer.”
No punditry allowed
Original: As it turns out, Trump’s birther campaign likely helped catapult Trump to the GOP presidential nomination three years later.
Skinny: Never make an incontrovertible observation about politics in a legal article!
Never go there
Original: By 2015, Trump was an actual GOP candidate for the presidential nomination and more aggressive in using lawsuits to chill negative speech about him. He was probably fed up with losing libel claims and being blocked by the First Amendment and became more creative trying to avoid the defamation label and his old foe, the First Amendment.
Edit: By 2015, Trump was an actual GOP candidate for the presidential nomination and more aggressive in using lawsuits to chill negative speech about him. He also became more creative by trying to avoid the defamation label and his old foe, the First Amendment.
Skinny: No complaints here — edit removes a conjecture about Trump’s state of mind. A dangerous place to go.
Original: Not only does Trump lack a sense of humor, he doesn’t know from rhetorical hyperbole. We got the message loud and clear from Trump’s $2.5 billion lawsuit against television network Univision Networks & Studios, Inc. and its programming chief Albert Ciurana.
Skinny: Is the country’s legal establishment really worried about slighting Trump’s sense of humor and grasp of rhetorical hyperbole?
Talk about libel!
Original: Without an ounce of irony, Trump wanted to make it clear in his lawsuit that he is not a racist mass murderer…
Edit: Apparently, Trump wanted to make it clear in his lawsuit that he is not a racist mass murderer…
Skinny: The Erik Wemple Blog also wants to make clear that Donald Trump is not a racist mass murderer.
Acronym reduction plan
Original: Instead of labeling frivolous, speech-targeting lawsuits “SLAPP suits,” perhaps we should call them “Trump Suits.”
Skinny: Any proposal that eliminates a clunky acronym merits consideration.