By ADAM LIPTAKOCT. 24, 2016
WASHINGTON — Alarmed by Donald J. Trump’s record of filing lawsuits to punish and silence his critics, a committee of media lawyers at the American Bar Association commissioned a report on Mr. Trump’s litigation history. The report concluded that Mr. Trump was a “libel bully” who had filed many meritless suits attacking his opponents and had never won in court.
But the bar association refused to publish the report, citing “the risk of the A.B.A. being sued by Mr. Trump.”
David J. Bodney, a former chairman of the media-law committee, said he was baffled by the bar association’s interference in the committee’s journal.
“It is more than a little ironic,” he said, “that a publication dedicated to the exploration of First Amendment issues is subjected to censorship when it seeks to publish an article about threats to free speech.”
In internal communications, the bar association’s leadership, including its general counsel’s office and public relations staff, did not appear to dispute the report’s conclusions.
But James Dimos, the association’s deputy executive director, objected to the term “libel bully” and other sharp language in the report, saying in an Oct. 19 email that the changes were needed to address “the legitimately held views of A.B.A. staff who are charged with managing the reputational and financial risk to the association.”
“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,” Mr. Dimos wrote. “Honestly, it is the same advice members of the forum would provide to their own clients.”
Mr. Trump has made frequent threats in recent weeks to file more lawsuits, including ones against The New York Times for publishing parts of his tax returns and accounts of women accusing him of sexual misconduct. On Saturday, he threatened to sue the women themselves.
Members of the committee expressed dismay with the bar association’s actions.
“It’s colossally inappropriate for the A.B.A. to sponsor a group of lawyers to study free speech issues and at the same time censor their free speech,” said Charles D. Tobin, another former chairman of the committee.
Mr. Dimos did not respond to a request for comment. Carol Stevens, an A.B.A. spokeswoman and a former managing editor of USA Today, said the association had only minor and routine objections to the article’s tone.
“We thought it was an insightful article, and we asked them to consider minor edits,” she said.
George Freeman, a third former chairman of the forum, disputed that characterization.
“I don’t think it’s fair to say ‘minor edits,’ ” he said. “Among the edits they wanted to make were the title and the lede,” he said, using newspaper jargon for the article’s opening passage.
The article was titled “Donald J. Trump Is a Libel Bully but Also a Libel Loser.” The bar association’s proposed title was “Presidential Election Demonstrates Need for Anti-Slapp Laws.” The acronym stands for Strategic Lawsuits Against Public Participation. In states with such laws, defendants can sometimes seek early dismissal of libel and similar suits and recover their legal fees.
Mr. Freeman, a former lawyer at The New York Times Company, is executive director of the Media Law Resource Center, a trade association of law firms and media companies. On Friday, the center posted the report on its site [see note below to read the entire 12 page document]
Ms. Stevens, the bar association spokeswoman, emphatically denied that the fear of a libel suit had played any role in the association’s objections. Ms. Stevens declined to comment when she was read passages from Mr. Dimos’s email. “I’m not a lawyer,” she said, “and that wasn’t my fear.”
Presented with the email, which indicated that she had received it at the time, she pointed to a passage in it that raised another criticism of the study. “Mr. Dimos’s primary concern was the use of partisan language,” Ms. Stevens said. “By policy, the A.B.A. is strictly nonpartisan.”
The study was prepared by Susan E. Seager, a former journalist, a Yale Law School graduate and a longtime First Amendment lawyer. She found seven free speech-related lawsuits filed by Mr. Trump and his companies. They included ones against an architecture critic and his newspaper; a book author and his publisher; a political commentator; a former student at Trump University; two labor unions; a network executive; and a beauty contest contestant.
“It’s based on court records, all of it,” Ms. Seager said in an interview. The report includes 81 footnotes.
The report concluded that Mr. Trump had lost four suits, withdrawn two and obtained one default judgment in a private arbitration when a former Miss Pennsylvania failed to appear to contest the matter.
“Donald J. Trump is a libel bully,” the report concluded. “Like most bullies, he’s also a loser, to borrow from Trump’s vocabulary.”
The bar association sought to eliminate that conclusion, which Ms. Seager said was the point of her report.
“I wanted to alert media lawyers that a lot of these threats are very hollow,” she said.
Ms. Seager said the bar association’s action showed that Mr. Trump’s threats work. “The A.B.A. took out every word that was slightly critical of Donald Trump,” she said. “It proved my point.”
Mr. Tobin said the media law committee, the Forum on Communications Law, had been prepared to publish the report without changes.
“Everyone who looked at it on the forum side felt her conclusions were well founded, were backed up by her scholarship and that the A.B.A. should not be censoring a First Amendment lawyer’s point of view about a current presidential candidate’s litigation tactics,” he said.
Mr. Freeman said the bar association’s actions were also at odds with its larger role. “As the guardian of the values of our legal system,” he said, “the A.B.A. should not stop the publication of an article that criticizes people for bringing lawsuits not to win them but to economically squeeze their opponents.”
Mr. Bodney said the country’s finest media lawyers had been ready to defend the bar association without charge had Mr. Trump chosen to sue.
“If push came to shove, as I recently told an A.B.A. representative, one could surely imagine top-notch libel lawyers standing in line to defend this article against a defamation lawsuit on a pro bono basis,” he said. “Evidently, that wasn’t assurance enough.”
Ms. Seager’s 12 page research paper is available at: http://www.medialaw.org/images/stories/MediaLawLetter/2016/October/Trump_Libel.pdf