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.
Marc Randazza is the national president of the First Amendment Lawyers Association
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