Constitutional Law Litigation

In Fear of Trump Libel Suit, ABA Stops Article Labeling Him “Libel Bully”

The Media Law Committee of the American Bar Association commissioned a study to analyze GOP Presidential candidate Donald J. Trump’s history of using lawsuits to stifle criticism. The study was commissioned after Trump issued a series of declarations that he was going to sue several news outlets critical of him. The study was done by Susan Seagar, a First Amendment lawyer and a professor of media law at the University of Southern California. She reported that Trump had filed over 4,000 lawsuits over a 30 year period. She found and discussed seven cases claiming libel filed by Trump and/or his organization against folks critical of Trump: one was filed against an architecture critic and the newspaper he writes for; one filed against labor unions; one against an author and his publisher; one against a network TV executive; one against a political commentator; one against a beauty contest contestant; and one against a former student of Trump University. Ms. Seager reported that the only one he won was that against the beauty contest contestant who decided not to fight the lawsuit allowing Trump to win by default. Trump withdrew two others and lost the remaining four. Ms. Seager obtained all the details for her report strictly from court records and provided 81 footnotes referencing each material item of fact. She also offered a detailed explanation of each lawsuit and its result. Her conclusion was harsh: She called Trump a “libel bully” and she further concluded, “Like most bullies, he’s also a loser, to borrow from Trump’s vocabulary.”

Note to ABA: You may need to change that slogan
Note to ABA: You may need to change that slogan
The ABA advised its own Media Law Committee that it refused to publish the report “due to the risk of the ABA being sued by Mr. Trump.” In the same email, written by James Dimos, the ABA’s deputy executive director, Dimos acknowledged that any such lawsuit would lack merit but added that it was certainly reasonable to try to reduce such a likelihood by removing inflammatory language that is unnecessary to further the article’s thesis.” So they would only agree to publish it if the committee and Ms Seager withdrew the conclusion and changed the title from “Donald J. Trump is a Libel Bully, But Also a Libel Loser” to “Presidential Election Shows Need for SLAPP Laws.” SLAPP stands for Strategic Lawsuits Against Public Participation referring to the age-old process of bringing frivolous lawsuits to stifle criticism. Victims of SLAPP lawsuits can get their legal fees paid and collect monetary penalties if they win. Ms. Seager said one of the prime purposes of her study was to let her media law compatriots know that Trump’s threats of litigation rang hollow and to encourage State legislatures to pass more Anti-SLAPP laws so that wrongly -sued defendants could collect legal fees and penalties. In one of her footnotes, she highlighted one of Trump’s statements at a Presidential rally in Texas in February of this year:

“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Totally protected by the First Amendment, that is, which already does not protect false, defamatory or libelous articles. It is of course ironic that an article about Trump’s use of SLAPP-like litigation to stop Free Speech would be subjected to censorship due to fear of a SLAPP lawsuit being filed against the publisher. It is even more ironic when you think of the battery of accomplished First Amendment lawyers the ABA could assemble on a pro bono basis to defend itself against such a lawsuit. The article was instead published by The Media Law Resource Center and it remains on its website here.

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