Pride in the Profession, 2: The “Libel Bully” report | Raucous Caucus | Tom Cushing | |

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By Tom Cushing

Pride in the Profession, 2: The “Libel Bully” report

Uploaded: Oct 31, 2016

In addition to feeling some pride for being among the many lawyers who are poll-watching during Nevada's early voting (prior blog), another lawyerly occurrence caught my eye last week. It demonstrated that individual attorneys may have the courage of their convictions, even if their trade group does not.

The American Bar Association is a non-profit membership organization of lawyers that represents interests of the profession in a formally non-partisan way. It includes many committees of interested practitioners who stay up-to-date on various topics of professional interest, via regular meetings and publications.

One such group is the Media Law Committee. Its members discuss weighty public/private issues like defamation, privacy, commercial speech (advertising), freedom of information, data collection and use, FCC regulation, and First Amendment law. It became concerned about the candidate Trump’s stated inclination toward “counter-punching” opponents “harder than they hit you,” as well as recent threats against individuals and publications during his Presidential campaign. So, the group commissioned a study of Mr. Trump’s litigation history in the field of defamation (roughly, lawsuits claiming damage to reputation from the false statements or writings of another person).

According to the New York Times, the study reported that candidate Trump does have a history of suing for defamation: he has targeted an architecture critic, an author, a political commentator, a former student at Trump University; two labor unions; a network executive; and a beauty contest contestant. For the record, he is 1-6: the sole ‘victory’ coming when the pageant contestant declined to defend herself in a private arbitration. The other cases were either court losses or voluntary withdrawals of the claims, ahead of trial.

The lawsuit tactic is not an unusual ploy by persons or companies with means – it can be an effective way to silence opposition, as even just the cost of defending oneself against a well-heeled adversary can break a defendant’s bank. Establishing a pattern of such conduct can deter and discourage even truthful critical commentary. There’s a cost to everyone in that, as the legal system’s processes are miss-used to place some folks above even legitimate reproach.

Accordingly, many states, including California, have enacted so-called “anti-SLAPP” statutes. These allow certain “strategic lawsuits against public participation” to be dismissed at an early date (before much expense has accrued), and call for recovery of damages and attorney’s fees back against the original plaintiff, again, under defined circumstances. The availability of these remedies tends to discourage filing of baseless ‘scorched earth’ lawsuits by putting some risk on plaintiffs. They thus neutralize the raw financial power of a wealthy, bad-faith litigant.

The ABA committee’s report was sharply critical of Mr. Trump’s practices, as seen most recently in his threats to sue the NYTimes over publication of the claims of his accusers, and each of the growing list of women who claim sexual abuse at his hands (and lips). Although it is extremely unlikely that he’ll follow-through on either tack, you can understand the impact of the threats.*

Apparently, the ABA, too, felt the cold chill of Mr. Trump’s litigious nature. The organization refused to publish the report under its given title: “Donald Trump is a Libel Bully, But Also a Libel Loser.” The powers-that-be sent it back with suggested edits, including a milquetoasty header: “Presidential Election Demonstrates Need for Anti-SLAPP Laws.” Indeed, that it does.

The Committee, and here’s what I’m proud-of, did what good lawyers often do: they found another way. They published their unedited version in an independent journal, and complained to The Times. Thus, a rather narrow, technical tome has received broad distribution, far beyond the marbled halls of major law firms. Further, they chastised the ABA for pulling its punches in fear of a blow from Mr. Trump.

Again, from the article: “… 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.”

Further, “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 ABA 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.”

In fairness, the language of the report was a little over-the-top for the hoary old legal profession. Moderating those expressions might’ve slightly reduced the risk of a ‘formal response’ from The Donald’s sharky minions. But when lawyers strike a blow for The Little Guy, in a factual manner that in no way compromises the odds of successfully defending any such lawsuit, well, I just have to tip my cap. Bullies must be answered, even/especially financial bullies.

So, good on ya, ladies and gents of the Media Law Committee – I’ll happily bask for a moment in your reflected glow.

* As an aside, somebody had fun writing the NYT’s letter in response to Trump’s attorneys, which read it-part:

“The women quoted in our story spoke out on an issue of national importance -- indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night's presidential debate. … It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern.

If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.” ( /mic drop) .