No, the ABA Did Not "Censor" a Story About Donald Trump Being a Censorious Asshat

Why would I need to "censor" anything? I can destroy the world by accrediting another branch of Cooley Law!

Why would I need to "censor" anything? I can destroy the world by accrediting another branch of Cooley Law!

The story about the ABA “censoring” Susan Seager is not what it seems. One Newspaper reported “US lawyers 'too scared' to publish report on Donald Trump baselessly suing people – in case he baselessly sues them.” (source) With everyone falling over themselves to complain about Donald Trump and censorship, the real victim seems to be the facts – not free expression.

First, let me introduce you to the characters:

Susan Seager: She is a kick ass writer and a kick ass First Amendment lawyer. I admire her. She’s on a mission to inform us that we need more Anti-SLAPP laws.

Donald Trump: A censorious ass-hat. ‘Nuff said.

The ABA: I have previously called them "the most worthless bunch of do-nothing abject imbeciles in the history of any trade association.” I think that was not harsh enough.

If you listen to every commentator on the story, Seager submitted an article that criticized Donald Trump. The ABA then refused to publish it, because they were afraid that Trump would sue them.

What really happened?

Seager submitted an 15-page law review article to The Communications Lawyer, an ABA law journal. In the 6,500 word, 81 footnote article, the vast majority of the content was untouched from her original draft. But, the publisher of the Journal wanted some changes. Seager wasn’t happy about it, and documented a lot of the requested edits.

For example, Seager writes:

My catchy and accurate headline, “Donald J. Trump Is a Libel Bully but Also a Libel Loser” would be changed to the bland “Presidential Election Demonstrates Need for anti-SLAPP laws.”(source)

She also complains that they wanted other changes:

My first sentence, “Donald J. Trump is a libel bully” would be replaced by the dull wording, “One of the many interesting facets of this year’s Presidential campaign has been the multiple attacks on the media, the First Amendment, and the judicial system itself by one of the candidates, Donald J. Trump.”(source)

You can see all of the edits in (this Washington Post breakdown). One notable one is here:

Original: Trump has zero sense of humor. But, boy, can he file a hilarious lawsuit! He proved that much when he sued HBO Real Time cable television show host Maher for not making good on Maher’s joke that Maher would donate $5 million to charity if the orange-haired and orange-tinged Trump could provide a birth certificate showing that Trump was not the “spawn of his mother having sex with an orangutan.”

Edit: Trump proved he can file a hilarious lawsuit when he sued HBO Real Time cable television show host Maher for not making good on Maher’s joke that Maher would donate $5 million to charity if Trump could provide a birth certificate showing that Trump was not the “spawn of his mother having sex with an orangutan.” (source)

I do a lot of writing too. Popehat doesn’t edit my work, but CNN sure does. I can assure you that most of my CNN articles didn’t look exactly the way they do when CNN hits “publish.” In fact, my first drafts are full of ad-hominem attacks, colorful language, and tangential arguments that attack pet peeves of mine. Fortunately, I have editors there that help me tighten it up, suggest changes, and remove distractions from the main point. If you look at the ABA’s edits, that’s what the vast majority, if not all of them, do.

Look up above, where Seager complains that the ABA suggested changing her first sentence. As a lead sentence, her version, well… sucked. The ABA’s suggestion is what a lead sentence should be – a short, tight, best-you-can summary of what you’re really talking about. The headline? I think the ABA’s is better than hers too. The real mission that Seager is on here is to show that we need better Anti-SLAPP laws, right? Or is her real mission to just jump up and down and mock Trump? The “orange” discussion suggests that it is the latter. Sure, it’s was more fun to write, and maybe even more fun to read, but does it do the job at hand?

And while I too prefer to write something more fun and colorfully, and to advocate my position, that is not what an article in a journal like The Communications Lawyer is supposed to be all about. An editorial? Sure. A PopeHat article? Fuckin-a. Law journal? Not so much.

So, did the ABA “Censor” her?

That is the current narrative. But, in reality, there was no “censorship.” It is called editing. In fact, the article outlining the editorial process shows that the ABA was willing to work with her on a lot of their proposed edits. (source)

But, Seager makes clear that she simply rejected their edits. She apparently didn't even want to discuss the proposed edits. (source – “We did not refuse to publish it,” says Stevens, adding that the ABA never had a chance to discuss changes with Seager.")

I told the ABA I would not change my article and withdrew it. (source)

Later, she even admitted that part of her decision was based on the fact that the ABA could not guarantee that the article would not be out before the election.

She withdrew it. In light of some really light, and frankly good edits, she decided to take her ball and go home. Dramatic effect, over 9,000.

George Freeman, another former chairman of the forum, argued that the ABA's rejection of the article betrayed its mission. "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." (Source)

Freeman missed the detail that the ABA did not “stop” the publication; they offered edits. And, for the ABA to have “betrayed” a mission? In my opinion the ABA does that all the time. In fact, I think one of the ABA’s mission statements is – to completely fuck over the legal profession. I hate the ABA. I think I made that clear. But, in this case, I find myself defending it.

ABA Deputy Executive Director James Dimos said that he was concerned with the “the ad hominem arguments made in the article.” He also said, “The publishing of a partisan attack piece in the midst of a highly charged election season will certainly create the perception that the ABA is aligning with one political party against the other and will hurt our credibility with members.” (source)

He also acknowledged that by including the ad hominem, it increased the risk of litigation. This is true. No media lawyer has ever been asked for a pre-publication review, and not warned his client to tone something down to minimize the risks.

And as someone who has published my my fair share of law review articles I can assure you that editor after editor has said the same thing to me. When I submit an article, it comes back slathered in red ink. I even made changes to this very article, including removing the phrase “sucked ass,” at the suggestion of my partner and ad-hoc editor.

Seager? She makes some great points, but disproves her “censorship” claims by defending her use of “colorful” language.

I too think most lawyer articles are boring. I am a journalist at heart and try to keep the law from deadening my writing. I used lively language in my article to attract an audience beyond lawyers. .”(source)

You know what? I agree with her. I have this argument with every law review editor, every magazine editor, and my CNN editors. Every. Single. Time. Sometimes I win the debate – telling them that I think that some funny shit I put in there really makes the point. Other times, the editor insists. I’ve pulled my articles before, when I had editors I couldn’t agree with. That wasn’t censorship, that was me making an author’s choice.

And this was Seager making an author’s choice.

But, don’t get me wrong. I don’t want to reprobate Seager. I still admire her. And, I’m grateful to her. You see, she made this point at the end of her (sorry, Susan) bullshit piece claiming she was “censored.”

I am fortunate to live in California, where a special law would allow me to bring a quick motion to dismiss Trump’s speech-related claims and force him to reimburse me for my attorneys’ fees if I win. The California law is known by the confusing name, the anti-SLAPP law, meant to curb speech-chilling lawsuits known as Strategic Lawsuits Against Public Participation (SLAPP). We need more of these law in other states. .”(source)

To use one of Trump’s favorite phrases, it’s “sad” that the ABA censored my article. The ABA proved my point: that Trump chilled speech by using baseless lawsuits and empty threats.

You see what she did there? She lied. She bullshat. She played the drama card.

But you know what else she did? She got a lot of people talking about passing a national Anti-SLAPP law. In fact, I’ve yelled about this for years. I wrote a fucking law review article on it that maybe 50 odd people bothered to read. I post about it obsessively. And for all my work, for all these years, Seager accomplished more by throwing this one ball of crap into the press’ shit-slathered cage of lazy fucks who would have been kicked in the face before they graduated from my J-school than I accomplished in all that time.

So this is not a piece bashing her. This is a piece praising and thanking her. Shit, I'm even jealous of her. I couldn't have pulled this shit off.

I hope that this piece doesn’t change your mind about the ultimate moral of the story – that we need a nationwide Anti-SLAPP law.

But, we also need less bullshit. We also need fewer people to be more stupid after they read the news.

But the bullshit spread isn’t Susan’s fault. She played the game, played it well, and did her (our) cause some real good. That’s what a public relations move is about. And this Valkyrie of the First Amendment kicked some ass for the cause. Ironically, this is the same technique that Trump used to troll the media.

But, that press that we fight so much to protect? Dammit, they did a shitty job of vetting the story. About as shitty as the ABA does everything else – except editing this one article.

And Susan’s article? Far from being “censored,” you can read it right here.

I personally think the ABA's edits would have made it better. But, had she accepted the edits, we wouldn't have had a bunch of shrieking stupid journalists repeating the story and spreading the word that we really, really, need Anti-SLAPP laws.

Last 5 posts by Randazza

Comments

  1. Sam says

    A lot of the links in this story just link back to this story's url with a quotation mark added to the end. Please fix?

  2. Jim Tyre says

    Far from being “censored,” you can read it right here.

    I see what you did there. "Not found, error 404."

    Two quick points: The Communications Lawyer is a newsletter, not a law review or law journal. More important, editing is done by the members of the relevant ABA section. I won't debate whether it's censorship, but it's unusual for the higher ups to step in as happened here. This was not the normal writer – editor relationship.

  3. Brian Z says

    You quoted a paragraph and then wrote: "You see what she did there? She lied. She bullshat. She played the drama card."

    Did you mean to quote the paragraph above it?

    To use one of Trump’s favorite phrases, it’s “sad” that the ABA censored my article. The ABA proved my point: that Trump chilled speech by using baseless lawsuits and empty threats.

    Isn't that the paragraph with the lies, drama, bullshit?

  4. says

    actually, yes… the coding on this one was shit. when i write it directly in the editor, it works well. when i do it in a separate word doc first, it turns to crap.

  5. OrderoftheQuaff says

    Mr. Randazza, I disagree with you on the relative merits of Ms. Seager's title and first sentence versus the edits. The older I get, the more I want an article that hits me in the first second with what it's about and where the writer is coming from. You're defending editing for blandness and inoffensiveness on the part of an irrelevant journal published by a trade association that not I or any other lawyer I know has ever joined in a sort of "teach the controversy" spirit, against a lawyer/writer you acknowledged as valuable, so, whose side are you on? I'm on the side of writing that presents a clear thesis in the first sentence and goes on to defend it.

  6. says

    But you know what else she did? She got a lot of people talking about passing a national Anti-SLAPP law.

    Politely but firmly disagree that she deserves praise for this. Using exaggerations or lies (and you yourself describe what she said as lies) as the centerpiece anecdote of a discussion undermines credibility. Even if the discussion moves on to other illustrations of necessity, this story can now be used by your opponents for the foreseeable future to argue that supporters of anti-SLAPP laws are lacking in honesty and that the issue is lacking in true urgency.

    By analogy: This same line of 'the story being untrue but still being valid by way of illustrating a deeper and important truth about society', was used by some following the Rolling Stones sexual assault on campus reporting fiasco. Despite the fact that more people have strong feelings about sexual assault than they do about copyright law, my (admittedly fairly superficial) scanning of the resulting discussion leads me to think the article and its subsequently discovered falsehood harmed activist efforts. Given that, again, copyright law is less concerning to the average member of the public, you should not be celebrating that the issue's newfound salience with the public is built on this foundation of sand.

  7. Michael Heaney says

    If the ABA insisted on changing the message of the article or refusing to publish it, that is censorship, Marc. Editing and censorship are not mutually exclusive. You clearly think that the edits were good ones, that's fine, perhaps they were. That doesn't magically make it not censorship. If you refuse to publish unless you're allowed to change the message then that is literally the definition of censorship.

    cen·sor·ship
    ˈsensərˌSHip/Submit
    noun
    the practice of officially examining books, movies, etc., and suppressing unacceptable parts.

    Exactly what you just described.

  8. Brian Z says

    I've been thinking a lot about the difference between editorial discretion and censorship. Not surprisingly, there many voices on the interwebs who have written about the difference before. Some, like this guy, believe that only the government can censor someone and if anyone other than the government does it, it's not truly censorship:

    So, if the producers or owners of SNL refuse to allow some skit to get on the air, claiming that it is too vulgar or offensive, this too amounts to nothing more than what editors and publishers have the full authority to do.

    I think I understand his point of view, but I don't think I agree. This other guy describes the dichotomy between editor and censor:

    A censor is someone who supervises conduct and morals – an official who examines material prior to publication and removes information that is objectionable, usually based on what the government considers objectionable.

    An editor assembles information for publication by cutting, rearranging, altering or refining, especially to bring about conformity to a standard or to suit a particular purpose.

    That's more in line with what I believe. If the latter model is true (if it's not, the discussion is basically over), then we'd have to examine the proposed changes to determine if it was censorship or just editing. My first glance at the facts seem to point in the direction of censorship: the edits seem motivated by a desire to soften and remove objectionable characterizations of Trump–not from a desire to improve the piece of writing.

    But even if it could be called censorship, I wouldn't necessarily be particularly chilled or worried by it. It could be censored from that nonpartisan venue due to its partisan character but freely published elsewhere, just as an HBO comedy special might be censored for obscenity for a network broadcast but available in full elsewhere.

    TLDR: I'm not sure if it's fair to say she's lying.

  9. Brian Z says

    Nevermind. Conspiratorial handwringing over. I feel more clearheaded now.

    If an editor tells you, "We try to maintain a nonpartisan tone, we'd be happy to print your article if you remove some of the partisan rhetoric and personal attacks, please see our suggested edits for further discussion," {hands you a list of good faith edits, some of which may not be necessary} and you withdraw entirely–that's not censorship.

  10. Michael Heaney says

    Alright, Marc, so what you're saying is that Seager had the option of rejecting their editorial suggestions and they would have published the piece as is, but she refused to take that option? Because that's the only other interpretation of the scenario, but it sounds very unlikely.

  11. says

    I'm not saying that … the source I linked to is saying that, quoting the emails that the ABA sent to her directly. That's sorta why I provided that information for you.

    If you look at the excerpts from the emails that she provided to the Washington Post, it seems that all of them were negotiable. But, she didn't want to negotiate.

    That's not "censorship."

    I mean, it is if you want to re-define censorship. But, if you think words remain tethered to their definitions, it sure is not.

  12. says

    Here. If you missed the link.

    Addressing the co-editor of “Communications Lawyer,” Dimos wrote, “I would ask that you please give consideration to our suggested changes. I think that they do no harm to the article while addressing the legitimately held views of ABA staff who are charged with managing the reputational and financial risk to the Association.” Such language notwithstanding, Seager termed them “required edits” and decided to “pull” the analysis from the ABA. (source)

  13. says

    @Michael Morley: That's a good point, but I would argue that most people have a general understanding that we have a problem with frivolous lawsuits in this country, but have no idea what "SLAPP" or "anti-SLAPP" mean. I think it's possible that even a questionable example of a potential SLAPP chilling speech can still raise understanding of a well-known but not well-understood issue.

  14. Tim says

    And here I am wondering why George Foreman is commenting on this ordeal. I need to slow down and read names.

  15. IForgetMyName says

    Just to play devil's advocate, if anything the ABA's decision not to publish the original work is really anti-Trump in effect.

    As Marc pointed out, the original work wasn't great in terms of advocating anti-SLAPP legislation. In terms of anti-Trump advocacy, it would play well with people who already had an axe to grind with the guy, but it wouldn't necessarily be the best for swaying reasonable people to an anti-Trump position (or for that matter, convincing reasonable people that Trump's critics are reasonable people.) Manipulating public opinion isn't so simple as censoring some stories and publishing opinion pieces supporting others. You can also be ostensibly inclusive of all points of view, while cherry picking who you implicitly endorse as representative of each viewpoint, and with all respect to Ms. Seager, I can see her original piece potentially undermining the perceived neutrality of the ABA as well as possibly moving the needle in the other direction in terms of undecided potential voters.

  16. Encinal says

    Later, she even admitted that part of her decision was based on the fact that the ABA could not guarantee that the article would not be out before the election.

    Should that be "would be out before the election"?

  17. Aaron says

    @Marc

    actually, yes… the coding on this one was shit. when i write it directly in the editor, it works well. when i do it in a separate word doc first, it turns to crap.

    Yes, well, that's what you get when you copy from a shitty WYSIWG HTML editor. Which is effectively what Word is, with extra fancy bells and whistles tacked on for other purposes.

    Better would be to write it up in a plain text editor, copy & paste into WordPress editor and do whatever formatting you want. Or just write straight HTML.

  18. Aaron says

    Sure Thad, but I was more complaining about Word, and advising Marc to never, ever use it for actually trying to do plain text or especially anything to do with HTML/CSS/etc.

  19. Nop says

    @Marc:

    I don’t want to reprobate Seager.

    I'm guessing that you meant "reprove" there. /amateur-editor

  20. Nop says

    @Marc: I see that my old friend @Andrew Pam beat me to the punch with "reprove" vs "reprobate", sorry for beating a dead horse by commenting before reading all the previous comments.
    Protip: What @Aaron said: Never use Word to edit stuff you intend to paste into a blog; it'll add a buttload of broken markup to your text & confuse the crap out of your blogging program. If you're writing your draft on Windows, use something simple & plain-text like Notepad.

  21. Mike Schilling says

    Never use Word to edit stuff you intend to paste into a blog;

    Suggested edit: remove all italicized words.

  22. Jim Tyre says

    A paywalled article in today's National Law Journal says that ABA has changed its tune. Within the week (whatever that means) the article will run in an unspecified ABA publication. It will be the original article, without any of ABA's edits.

    That's all.

  23. Encinal says

    If instead of using ctrl-v, you right-click and choose "paste unformatted text", that will help somewhat with the Word issues. This applies to just cutting and pasting into comment boxes, too.

  24. Susan Seager says

    Thanks for calling attention to my battle with the ABA to publicize Trump's 30-year history of libel bullying. I wrote my article to inform the public about Trump's use of libel lawsuits to bully his critics. I hope defense attorneys will quote my article in their response letters to Trump, and cite my article in court to point out that Trump has a history of filing frivolous speech-chilling lawsuits. My SLAPP angle was a secondary point.

    Here are some facts to back up my contention that the ABA tried to censor my article. The ABA wrote me an email accepting my article as written, then on the eve of publication, sent an email saying it was killing my story outright. Then the ABA demanded in a phone call with my editors to remove the term "libel bully" and "libel loser" from the headline and my lede of the article. By the time the ABA sent it's "suggested edits" via email, I and my editors at the ABA's Communications Lawyer had already said we would not strip away "libel bully" or "libel loser."

    It was censorship when the ABA tried to strip away my short and sweet conclusion: "Trump is a libel bully but also a libel loser." If you wrote an article calling Vegas libel-lovers Sheldon Adelson or Steve Wynn "libel bullies" and someone told you not to use those labels, you would object and call that censorship. The ABA "edits" weakened the article by removing the punchline and other key information. (Funny enough, the ABA also wanted to delete the label "GOP" so there was no mention of Trump's political party, and delete that he had "zero sense of humor" and was "orange-haired.")

    All of these edits were an attempt to weaken my article. That is censorship.

    Here's an update on the ABA censorship angle: On Nov. 3, the ABA finally published my Trump as "libel bully" article in its Communications Lawyer newsletter without the censorship. But there's a big problem — for the first time, Communications Lawyer will be not available to the public online – it's for members only. Hmmm. I'm sure that is not another way of censoring the article.

    Given the ABA's decision not to publish my article on a public website, I'm glad I was able to publish the article and make it available to the public on medialaw.org and vox.com.

    (BTW, I think we should call stop using the word "anti" to describe SLAPP statutes. "Anti-SLAPP" combines a negative and an acronym – yuck. It does not roll off the tongue. Reporters' eyes glaze over when I try to explain it. We should just call them "SLAPP statutes." We don't say someone violated an "anti-wiretapping law." We say someone violated a "wiretapping law." Or better yet, let's call them "Speech Bully statutes.")

  25. says

    That still doesn't sound like "censorship" to me. And, no… when I work with editors, pretty much every week, and they say "Marc, you're gonna have to tone this down here, can you use something other than 'fucking asshat' to describe this person?" My response is not "YOU ARE CENSORING ME!" Instead it is, "yeah, that's part of the give and take in the editorial process."

    Hell, Ken has never asked me to change anything on any of my posts — but if he did, I'd call that "editorial discretion" — not "censorship."

    It isn't "censorship." That word has a meaning, and you're trying to untether the word from its definition. Using it this way cheapens the term, and makes the masses dumber.

    I still love what you've done – and I sign on to the idea that we should find a new name for "Anti-SLAPP" laws, but I hate the use of the "bully" term. In general, and as of late, it has become a trite term.

  26. Jim Tyre says

    Susan and Marc,

    I'm not so sure I agree with your comments about the SLAPP acronym. Perhaps Rock Pring and Penny Canan could have come up with a better one when they coined it in the early eighties. But it's so ingrained in the vernacular these days that changing it to anything else might do more harm than good.

    (They were truly ahead of their time. They came up with the acronym after studying a fairly small handful of cases from around the nation, spotting an emerging trend. One of those cases was a classic developer v. citizenry libel case that I was defending.)

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