Over the past week, the American Bar Association has been a punching bag and the object of ridicule in the media, following a report in The New York Times that it rejected an article submitted by former journalist and media lawyer Susan Seager, titled “Donald J. Trump Is A Libel Bully But Also a Libel Loser.”
“Take a second to absorb this,” said Trevor Noah, host of The Daily Show, in an episode last week that’s since been viewed over 1 million times on YouTube. “A group of lawyers won’t publish a report on how Trump often sues, because they are afraid he might sue them.”
“You do realize I cannot make a joke about that, because that would be the joke that I would make,” he said.
But would the joke be true? Carol Stevens, a spokeswoman for the ABA, said that the bar group never actually rejected Seager’s article and that the author voluntarily decided not to publish the article in the ABA after a series of “suggested” edits were proposed by an ABA executive.
“We have had people who have criticized us — unfairly, we feel — because it was reported incorrectly,” said Stevens.
Stevens said that the ABA has requested a correction from The New York Times, but, at least as of Tuesday, that request has not been fulfilled.
That’s probably because there is evidence of what looks like a rejection.
One of the ABA editors sent an email on Oct. 13 to Seager’s editors who submitted the article, saying that “we cannot publish the Trump article because it is deemed to be too political and the ABA has to be strictly non-partisan.”
“It was also pointed out that publishing the article may have the appearance of electioneering which is forbidden as a 501(c) organization,” wrote Jill Peña, director of administration and operations in Chicago who helps edit the publication where the article was set to appear, Communications Lawyer.
But Stevens, the ABA spokeswoman, said editing discussions continued for six days after Peña sent the Oct. 13 email and the author withdrew her story from consideration after a series of “suggested” edits from ABA deputy executive director James Dimos sent on Oct. 19.
Today, despite Dimos’s prior resistance, the ABA has approved publication — set to appear in the ABA newsletter Communications Lawyer later today — after backlash in the national press. The article — which details Trump’s losing track record in previous speech related lawsuits — has already appeared in Media Law Resource Center, Vox, and written about in Vanity Fair among other publications.
“I am pleased that the online newsletter of the Forum on Communications Law will be publishing an article this week that discusses the pressing need for Anti-SLAAP laws to discourage nuisance lawsuits aimed at intimidating critics, wrote Linda Klein, president of the ABA, in a statement. “I look forward to working with the dedicated members of the Forum to support their work to advance anti-SLAPP laws and other critical issue.”
Despite the publication, tensions remain between the parties responsible for publishing it. On the one side, there is the author of the article, Susan Seager, and the lawyers who volunteer their time to run the newsletter, Communications Lawyer, who approved of the article. On the other is the ABA staff and management who sent them edits, expressed concerns about the article’s language and was responsible for holding up its publication.
That the ABA is now claiming it never rejected the article in the first place seems ridiculous to lawyers who volunteered their time to the editing process on behalf of the Communications Lawyer. They have viewed the ordeal as “censorship.”
“Everyone was quite clear these were demands made by the ABA and if it was not accepted, the ABA would not be approving it,” said Steven Zansberg, who was involved in the editing process on behalf of the Communications Lawyer. Zansberg is also the recent past chair of the ABA’s Forum on Communications Law, the ABA group that meets and exchanges information about communications and media law and oversees the newsletter.
“I’m disappointed that the ABA would engage in such spinning of the truth,” said David Bodney, another lawyer who was involved in the publication process on behalf of the Communications Lawyer. “It was shamed into doing the right thing.”
Those who represented the Communications Lawyer — as well as the New York Times reporter responsible for the initial story, Adam Liptak — pointed to Peña’s email that put the kibosh on the article.
“I would say that it’s sad that a national trade association for the legal profession would be so unwilling to accept responsibility for a decision it clearly made and that it would point fingers at anyone and everyone including Ms. Peña,” said Zansberg. “Her message was never contradicted in any way by any of her supervisors.”
Asked about Peña’s email, Stevens said “the employee,” meaning Peña, mis-characterized ABA policy in the email. The true policy, she said, is that the ABA can’t insist on edits to publications such as Communications Lawyer, a newsletter that publishes four times a year and is run by communications lawyers who set its editorial policy.
“The entire policy places the editorial process in the hands of the publishing entity (the Communications Lawyer),” said Stevens, in an email. “They have the ability to set editorial standards and to accept or reject a publication. An entity can reject a piece submitted to it, but the rest of the association does not have a veto power.”
That means that six days later, on Oct. 19, when James Dimos sent a 700-word email to editors at Communications Lawyer outlining a series of redline edits and expressing “concern” about the article’s tone and “speculation regarding Mr. Trump’s state of mind,” there was no teeth behind it, because Dimos lacked the authority to enforce the edits, according to ABA policy.
In Dimos’s email, he detailed a number of concerns and proposed re-writing the headline and lede.
“Name calling and questioning Mr. Trump’s mental capacity is neither civil nor the type of rhetorical device that meets the Forum’s professed standards of publishing scholarly articles. In addition, such language transforms a legitimate scholarly article into a partisan attack.”
He also cited the risk of being sued.
“The gratuitous use of the ad hominem attacks will increase the risk of the ABA being sued by Mr. Trump. The article itself proves this point. 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. Honestly, it is the same advice members of the Forum would provide to their own clients.”
Multiple requests to speak with Dimos were declined. Stevens said he was unavailable and that she is the only ABA staffer designated to speak with press about the Trump article.
After Dimos sent the edits, Seager withdrew her article from consideration and published it in Media Law Resource Center, a similar publication for a non-profit association for media companies and their defense lawyers. She and others at Communications Lawyer were under the impression that the edits were mandatory, not suggested.
Seager said: “I was getting messages back from Lee [Brenner, co-editor of Communications Lawyer with Kelley Drye]. First they wanted me to change the story, and then they were going to kill the story, and then they were going to change the story. I felt there is two ways to kill a story. One is to outright kill it and another is to delay it. I felt this was going on for too long and they were not suggested edits — that they wouldn’t run the piece without the edits at all. I think the reason I got that message is the letter from Jim Dimos went on and on about why cuts had to be made. The tone of the letter was not at all conciliatory or ‘let’s have a discussion.’ It’s that these changes had to be made, it was too partisan and inflammatory, so I don’t think there was any room for me to negotiate at all.”
Trump Article Chronology
The Trump article was first pitched to the ABA’s Communications Lawyer on Aug. 30 by Susan Seager, a former journalist and media lawyer who teaches classes at University of Southern California, Annenberg School for Communications and Journalism. By Seager’s account, the pitch was accepted the next day by Lee Brenner, a practicing lawyer who helps run the Communications Lawyer.
The concept was simple: study Trump’s history of litigation around speech related claims and write an article about the findings.
By September 29, a final version of the article was ready for publication, by the standards of Brenner and other editors at Communications Lawyer. Editor Dave Giles sent an email with the article attached, to Jill Peña, director of administration and operations in Chicago, and Carol Simmons, a manager of the Communications Law forum at the American Bar Association.
Initially, it was all systems go.
On Oct. 3, Peña thanked Susan for the submission to be included in the next issue of the Communications Lawyer, Vo. 35, No. 3.
“I have attached my edits to the article, which are mainly formatting, in redline,” Peña wrote to Giles and Seager.
After that, Seager updated the article and sent a copy back of the new version on Oct. 11.
“Done,” wrote Peña. “No changes needed. Thanks.”
What happened next isn’t entirely clear. On Oct. 12, Seager checked in on the article’s publication date, and Peña wrote back that she was “waiting on a few things before I can go to press. If time gets too short, I will see about getting your article on the web. I think it is an important one to have before the election.”
The next day, Peña sent the email explaining why the ABA could not publish the Trump article, citing electioneering.
Publishing the Article
Seager, the author of the article, said she is happy the ABA has agreed to publish the article, but that in her opinion, “The only reason the ABA decided to run the piece is that they looked bad in the press.”
Stevens, for her part, said that the media backlash had nothing to do with it. “The reason we didn’t run it initially is because she withdrew it from consideration. And then, she re-submitted it for consideration on the 27th and we immediately accepted it.”
Asked of what she thought about the whole episode, Stevens said:
“Speaking for myself, I think it’s baffling that a journalism professor would use the word ‘censorship’ as a synonym for editing,” said Stevens. “I mean, most reporters are edited at some point. I doubt that many claim that they are censored. Most reporters don’t have the luxury of getting suggested edits from their editors. I was surprised to see the escalation of this.”
Seager stood by her claim that she was censored: “Censorship is when you take out important words and water something down. That’s censorship. That’s what happened.”
The ABA has Seager to thank for the bad press. Seager openly admitted leaking the story to The New York Times.
“I called The New York Times just a couple days after I pulled my story,” said Seager. “I guess I had two thoughts. One, I just wanted my article to be read by a lot of people. But I also thought it was outrageous that a lot of lawyers were scared about being sued by Trump. If anyone is scared, it shouldn’t be a bunch of lawyers, as The Daily Show pointed out. I have never experienced anything like that, and thought it was outrageous.”
All the emails referred to in this article were provided to Big Law Business by Seager.