Chickenshit American Bar Association Scared Out Of Publishing Report Calling Trump A Libel Bully

from the chilling-effects dept

Tue, Oct 25th 2016 6:24am — Mike Masnick

We've talked a lot about Donald Trump and his ridiculous views on defamation and the First Amendment -- including his penchant for threatening defamation lawsuits against basically everyone who says something he dislikes. He rarely follows through, though he certainly does sue sometimes.

In fact, someone has set up Trump-clock.com which lists out every known legal threat against the press or critics since his Presidential campaign began (ignoring the long list that predates the campaign). It also has a clock showing how long it's been since Trump's last threat.

So it shouldn't be much of a surprise that a group of media lawyers at the American Bar Association commissioned a report on Trump's litigation history, and the report (correctly) concluded that Donald Trump is a "libel bully" making a bunch of bogus threats and with a history of filing bogus defamation lawsuits in court (something he's outright bragged about). This shouldn't be controversial. Trump is, clearly, a libel bully, and even he has more or less admitted that with his comments on why he sued author Tim O'Brien.

But, apparently, the American Bar Association was too chickenshit and refused to publish the report, out of a fear that (wait for it...) Trump would sue them.

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.”

With the ABA chilled into suppressing a report about Donald Trump chilling free speech, the Media Law Resource Center picked up the fumbled ball and released the report on its own. The opening executive summary is pretty clear:

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.

But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court.

The full article then goes on to examine in more detail seven speech-related cases, and uses the paper to argue in favor of stronger anti-SLAPP laws to prevent such speech chilling.

... 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.

The ABA's refusal to publish the report is really ridiculous, but only serves to highlight the issue here. When an organization that absolutely must know better is still too afraid to publish a report like this, it highlights just how successful Trump can be in stifling speech with just his threats. And, yes, this report eventually was released, thanks to some First Amendment lawyers who knew how ridiculous this was, but we don't know how many others have been scared away into silence.

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Filed Under: chilling effects, defamation, donald trump, free speech, libel, libel bully
Companies: aba

37 Comments

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Anonymous Coward, 25 Oct 2016 @ 6:34am

I'll sue!
I'll sue!
I'll sue!
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Anonymous Coward, 25 Oct 2016 @ 6:41am

4,000 lawsuits
I suspect that if *I* had filed that many lawsuits I would be declared a vexatious litigant. But I'm not rich, either.
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That Anonymous Coward (profile), 25 Oct 2016 @ 6:45am

Something something image is more important that truth.
It is a pity when lawyers won't stand up against their brethren.

Filing a frivolous case is supposed to be punishable, lawyers are supposed to know better.

The ABA seem to lack the fortitude & faith in the law preferring to hide from bogus possible lawsuits.

The membership of the ABA should be raising hell about why a group who allegedly represents them would pick the safe option of not saying what was true.
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Anonymous Coward, 25 Oct 2016 @ 6:45am

Wait... The American Bar Association was afraid that Donald Trump would sue them?

Even 1 out of every 5 dentists has the balls to not recommend Trident gum.
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Anonymous Coward, 25 Oct 2016 @ 6:49am

If only they knew a good lawyer to give them advice on their chances of winning the suit...
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Ninja (profile), 25 Oct 2016 @ 6:50am

As woody would do:

One justice for you, one justice for me. Two justices for you, one, two justices for me. Three justices for you, one, two, three justices for me.
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Anonymous Coward, 25 Oct 2016 @ 6:51am

The ABA should welcome a lawsuit
Because one of the first things that would happen is that they'd depose Trump. And his family. And his associates. And his advisors. And his business contacts. And his neighbors. And his tenants. And his contractors. And his vendors. And anyone, everyone who has any relationship of any kind to all 4,000 of those lawsuits.

Trump knows this, of course, and doesn't want of those people compelled to give testimony under oath. This is also why he won't sue any of the women that he sexually harassed or assaulted: the last thing in the world he wants is pre-trial discovery.
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Anonymous Coward, 25 Oct 2016 @ 6:52am

The ABA should be huge fans of Trump. Law suits are good for business!
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Anonymous Coward, 25 Oct 2016 @ 7:09am

Re: Something something image is more important that truth.
The problem is that the lawyers know full well how much winning the case will cost them, and that he only people who would profit from the case would be Trumps lawyers.That bit of paper that says they were in the right would come at a high financial cost to them..
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Anonymous Coward, 25 Oct 2016 @ 7:09am

Mike, you poor baby... got your jimmies rustled 'cause Trump aspires to replicate default jew behaviors.
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Baron von Robber, 25 Oct 2016 @ 7:14am

Re:
Ah Mr Drumpf has come by for a visit.
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That Anonymous Coward (profile), 25 Oct 2016 @ 7:20am

Re: Re: Something something image is more important that truth.
So they don't actually believe in the law they practice & have no faith that they would be rewarded by a system that is supposed to punish those who bring frivolous suits & make their victims whole...
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techflaws (profile), 25 Oct 2016 @ 7:25am

Re: Re:
And failed to impress as usually.
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techflaws (profile), 25 Oct 2016 @ 7:25am

Re: Re: Re:
Sad.
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Anonymous Coward, 25 Oct 2016 @ 7:28am

Re: Re: Re: Something something image is more important that truth.
Until awards of costs become the norm, the US legal system is great for enriching lawyers, while giving their clients a Pyrrhic victory.
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Anonymous Hero, 25 Oct 2016 @ 7:31am

Re:
Well yeah, it's pretty libellous to assign a default moniker of "Anonymous Coward" instead of something more balanced like "Whatever".
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David, 25 Oct 2016 @ 7:42am

Re: Something something image is more important that truth.

It is a pity when lawyers won't stand up against their brethren.

Uh, they stand up and fight "against their brethren" just like football players do "against their brethren": when they are getting paid for it. Nothing personal in it. That's what they were trained to do.

Players quit a team because of the numbers on the paycheck, not because of the signature.
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David, 25 Oct 2016 @ 7:55am

Re:
What's with the antisemitism? I thought we had immigrants to substitute for that?

Of course, there is a bit of irony with keeping the indigenous "illegal immigrants" from beyond the Mexican border out of the U.S. with its basically European population.

But is there any point to bringing up "jew behaviors" these days apart from dealing in fascist nostalgia?
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Anonymous Coward, 25 Oct 2016 @ 8:03am

TD commits libel bitching by about libel.
A "group of media lawyers at the American Bar Association" is not the A.B.A.

By declaring they are, you have declared that an defamatory act committed by one party was in fact attributed to another.

The A.B.A's duty is to the integrity and stewardship of the law. If they have individual views on the standards by which the law is executed, they are welcomed to individually run for office like anybody else. But they are by and large, an organization that defines protocols.

Being partisan as an organization, diffuses their own authority as much as it supports any given position. The A.B.A. was doing their DUTY by not getting involved. The fact that a couple of people went off a a tangent doesn't change that.

The ABA is like the IETF. TechDirt is like Microsoft. Yes you would like to fuck things up for your own purposes. We get it, and we understand you. We still disagree with you, and though we may think your being a dick, we generally will not let it get in the way of making sure that the system works.
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themonkeyking145 (profile), 25 Oct 2016 @ 8:26am

It Just Occurred to Me
...Is it possible the A.B.A. chose to withhold the report, not out of fear, but to Streisand themselves? Think about it for just a second: if they'd just released the report as is, it would have gotten traction in places like Techdirt, and possibly some minor traction in the larger media outlets. This way, the report is going to be shouted from the rooftops, because the A.B.A. allowed the exact thing the report warns about to keep them from publishing it. I realize this theory requires a large and powerful group to be willing to accept a pretty public black eye...But it also guarantees far, far more coverage than the report otherwise might have gotten.
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Groaker (profile), 25 Oct 2016 @ 8:41am

Re: Re: Re: Re: Something something image is more important that truth.
I am sympathetic to what you say. But the problem is that legal bullying will become even more widespread.

I might be willing to pay a local lawyer to take a reasonable case where the opposition has roughly the same legal resources I have.

But faced with the possibility of additionally paying for the $1K/hour attorneys for politically connected individuals, I would probably have no choice but to back down no matter how good my case was.

That would leave the legal bullies with a clear field to behave any way they wished.

And no, I have no solution. But I do wonder just how wide spread this problem really is, and how much of it is propaganda.
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Mike Masnick (profile), 25 Oct 2016 @ 9:28am

Re: TD commits libel bitching by about libel.
TD commits libel

Well, that proves you're not a lawyer, so I don't think you actually represent the ABA.

By declaring they are, you have declared that an defamatory act committed by one party was in fact attributed to another.

That doesn't even make any sense.

The A.B.A's duty is to the integrity and stewardship of the law.

Huh? No, that's not the ABA's "duty." They don't have "stewardship of the law." It's an organization of lawyers. Not the law.

If they have individual views on the standards by which the law is executed, they are welcomed to individually run for office like anybody else.

You seem to be confusing legislative activities with the ABA... which is just... weird.

Being partisan as an organization, diffuses their own authority as much as it supports any given position.

Yes. If they were being partisan. They were not.

The ABA is like the IETF. TechDirt is like Microsoft.

I keep reading that over and over and over again and I still have no idea what this means.

Yes you would like to fuck things up for your own purposes.

Wha...?

We get it, and we understand you. We still disagree with you, and though we may think your being a dick, we generally will not let it get in the way of making sure that the system works.

The word you're looking for is "you're" not "your"

Also, don't say "we." Your comment proves you're not at all a lawyer.
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radix (profile), 25 Oct 2016 @ 9:39am

Re:
You joke, but I half-suspect that this was intentional; a way to draw even more attention to the subject than if they had merely published a report with information that anybody who cares/is paying attention already knows.
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Anonymous Coward, 25 Oct 2016 @ 9:42am

Re: It Just Occurred to Me
This actually makes a lot of sense. The Streisand Effect SHOULD be well understood, but I really doubt that a lot of people actually sit down and think about what their actions will do to the media coverage. I have a feeling that media lawyers would be more aware of the effects of the SE than other groups of people.

So... why not use such a thing to your advantage where possible?
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Anonymous Coward, 25 Oct 2016 @ 9:51am

Re: Re: Re: Re: Re: Something something image is more important that truth.
You can have a system where you have to decide whether you can afford to go to court, win or lose. or you can have a system where, within the bounds of reasonable costs, you are not out of pocket if you win, but only if you lose. (Courts evaluate costs claims to see that they are reasonable in systems where costs are awarded).
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Anonymous Coward, 25 Oct 2016 @ 9:56am

Shots fired
> Donald J. Trump is a libel bully. Like most bullies, he's also a loser, to borrow from Trump's vocabulary.

Lawyers can be so savage.
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JoeCool (profile), 25 Oct 2016 @ 10:17am

Re: The ABA should welcome a lawsuit
Well, Trump has said that he WILL sue all those women... after he wins the election. That goes hand-in-hand with his promise to change defamation/libel/slander laws so that truth is no longer a defense. Then he'll feel perfectly safe suing women he has assaulted.
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JoeCool (profile), 25 Oct 2016 @ 10:20am

Re: Re: TD commits libel bitching by about libel.
Hmm - either he's TRUMP'S lawyer, or we ran into a fine case of Poe's Law. :)
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That Anonymous Coward (profile), 25 Oct 2016 @ 11:21am

Re: Re: Re: Re: Something something image is more important that truth.
Gee if only there was some sort of association of lawyers who could highlight this growing inequality in the system, where rich bullies always get their way because it is no longer the rule of law but the golden rule (he who has the gold makes the rules)...
They could work to try and reform a very broken portion in the system thats supposed to be blind but is easily weighted with gold coins.
Imagine if a case was found to be frivolous and the lawyer actually got personally dinged... perhaps some of them might not be willing to represent someone like Trump bringing a case just to annoy.

But then they were to scared to call a bully a bully, I doubt they have the balls to change anything. Hell Steele still has a bar card & Hans can get his back in 4 yrs... certainly sounds like an upstanding system... extort people for "crimes" you created & facilitated, pocket millions, then use all the tricks of the trade to evade any punishment making sure the public finds new depths of hatred for lawyers.
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Thad, 25 Oct 2016 @ 11:34am

Re:
I'll sue ya
I'll take all your money
I'll sue ya
If you even look at me funny
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themonkeyking145 (profile), 25 Oct 2016 @ 1:00pm

Re: Re: It Just Occurred to Me
That's pretty much what I was thinking. I mean, this story is tailor made for Streisanding: A bunch of people (lawyers) who should be well aware of how the First Amendment and defamation laws work choose to fold in the face of a clearly meritless, currently potential threat? If the plan from the outset wasn't to get Streisanded up one side of the street and down the other, I'd certainly claim it was if I was in the A.B.A.'s position.
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Derek Kerton (profile), 25 Oct 2016 @ 1:31pm

ABA Self-Interest?
Don't forget that the ABA has moral suasion at play here. They are a group that profits from additional lawsuits, and even fangless letters such as C&Ds.

Anti-SLAPP laws may instill more faith in the law, but they also would mean less work for lawyers, even if only slightly.

Maybe the ABA likes pointless legal machinations. They increase billable hours.
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Anonymous Coward, 25 Oct 2016 @ 3:57pm

Re: Re:
Weird Al is great
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G Thompson (profile), 26 Oct 2016 @ 2:08am

Re: TD commits libel bitching by about libel.
I give this comment 10 LOL's and a "WTF? The idiots are loose again"
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Anonymous Coward, 26 Oct 2016 @ 6:56am

Re: TD commits libel bitching by about libel.

We get it, and we understand you. We ... blah blah blah ...

Who is this "we" you speak of? Do you often refer to yourself in the plural sense?
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Anonymous Coward, 26 Oct 2016 @ 6:59am

Re: It Just Occurred to Me

...Is it possible the A.B.A. chose to withhold the report, not out of fear, but to Streisand themselves?

I don't think so. It has been shown over and over that lawyers have little to no understanding of the Streisand effect.
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Anonymous Coward, 27 Oct 2016 @ 6:00am

Mark Randazza over at Popehat has a different take on this story.

His point is: The ABA offered edits to her story, and she rejected it. But also that by playing the censorship angle, she made the issue a much bigger story than it would be otherwise. And that? That brings the point to a wider audience that we need federal anti-SLAPP legislation.

... or it would if people read her story, rather than just the "ABA wouldn't publish, OMG!" bit of it.
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