Republican presidential candidate Donald Trump’s reaction to criticism—or even just statements incongruent with his own view of himself— is Exhibit A for why a federal anti-SLAPP law is needed. But so is the reluctance of the nation’s premier professional guild of lawyers to say less than flattering things about him.
In The Nation magazine of October 24, five books by or about him are reviewed by Chris Lehman, editor in chief of The Baffler. Lehman recalls that 10 years ago Trump sued New York Times reporter Timothy L. O’Brien for statements in his book TrumpNation: The Art of being The Donald suggesting that he was not, as claimed, a billionaire.
“For Trump, O’Brien’s trespass was far more than a matter of misguided accounting,” Lehman notes. “The Times reporter had struck at the very heart of the mogul’s innermost sense of self-worth . . .
To no one’s surprise, Trump’s suit against O’Brien was dismissed, as was a subsequent appeal by his legal team. But in true positive-thinking fashion, Trump spun the whole proceeding as a victory, since it tied O’Brien up in a procedural limbo for years on end. “I liked it because it cost him a lot of time and a lot of energy and a lot of money,” he told Washington Post reporters Michael Kanish and Marc Fisher in Trump Revealed. He even claimed that “I didn’t read (O’Brien’s book), to be honest with you . . . I never read it. I saw some of the things they said. I said, ‘Go sue him, it will cost him a lot of money.’”
These comments may be the most candid adoption on record of the SLAPP suit’s primary objective: to force defamation defendants to spend years in time and energy and all their personal resources to avoid liability and defend their rights to speak and publish. The strategy’s secondary objective is to intimidate others who might be tempted to speak or write in ways offensive to the wealthy and hair-trigger litigant.
The success of that objective—to cow other potential critics into silence—could have no more striking example than the behavior of the American Bar Association in its nervous attempts to purge opinionated language from an article to be published in the impending quarterly newsletter of its Forum on Communications Law. The article, ironically, examines Trump’s hyperactive but legally ineffective litigation record in the light of the First Amendment.
The article is by Susan Seager, a highly respected media lawyer and lecturer at USC’s Annenberg School for Communications and Journalism and former member of the Californians Aware board of directors. Here is her draft as submitted, showing the redlined changes suggested by ABA staff.
Since reports of this interaction began appearing in the Times and elsewhere, the ABA has denied any intent to censor the article, and today announced it would be published after all—with the changes presumably reduced if not entirely withdrawn. They were obviously understood to be a deal-breaker when communicated to Seager, who promptly withdrew her permission to publish the piece and has now reconsidered
Among several other things, the ABA editors wanted to change Seager’s title, “Donald J. Trump is a Libel Bully but also a Libel Loser,” to the bland and actually misleading observation that “Presidential Election Demonstrates Need for anti-SLAPP laws.”
What really demonstrates the need for anti-SLAPP laws is both Trump’s courthouse record and the ABA’s timid hesitancy to call it what it is—the legacy of a libel bully.