The threat of a libel suit can chill free speech.
As a lawyer, I’m embarrassed that the commissioned a report about Donald Trump’s use of libel threats, then refused to publish it out of fear that Trump, the Republican presidential nominee, would sue the organization for libel. The episode, however, dramatizes how effective libel threats are in chilling speech — and how they work in real life, driven by the professional caution that lawyers cultivate on behalf of their clients.
The report, ordered by the ABA’s media-law committee, didn’t pull any punches. Its author, Susan E. Seager, titled it “Donald J. Trump Is A Libel Bully But Also A Libel Loser.” Seager is a journalist and First Amendment lawyer whose bio says she volunteered as a poll watcher for Barack Obama’s campaign in 2008 and 2012.
Writing with considerable brio and no pretense of neutrality, Seager examined seven cases Trump brought, none of which he won. She editorialized freely: “Trump’s lawsuits are worthy of a comedy routine,” she wrote — but also justified the need for more laws barring strategic lawsuits against public participation, known as SLAPPs.
According to the New York Times, the ABA refused to publish the report at least in part because it was afraid Trump would sue. An ABA spokeswoman denied this to the paper. But the telling line, included in an e-mail obtained by the paper, said that not publishing the report was “the same advice members of the forum would provide to their own clients.”
Observers were quick to criticize the ABA, and rightly. A national civic society organization like the bar association shouldn’t find itself in the position of self-censorship. Almost as damaging for a group of lawyers was the ABA leadership’s apparent naivete: Once the report was written, someone was going to publish it or leak it, and the resulting publicity would make the organization look weak and hypocritical.
But knocking the ABA misses the most important aspect of the story: the effectiveness of the kind of libel threats that were the topic of the report. Trump couldn’t possibly win a libel suit against the ABA for calling him a libel bully. He’s a public figure, and the charge is either a matter of interpretation or else objectively true. All of these would protect the ABA — and the internal e-mails acknowledge that a suit by Trump would have no legal merit.
Yet a libel suit by Trump would still make bad headlines for the ABA, put Trump on the offensive, and cost time and money to defend. The odds of Trump winning would be tiny, but the potential verdict could be large.
Defense lawyers are taught to multiply the odds of a successful defense against the potential cost of defeat to obtain the expected value of a suit. (Plaintiffs’ lawyers make the same calculus from the other side.) Once the client knows that information, it can decide whether it’s worth publishing in the first place.
That’s good common sense to guide clients — but it means that lawyers typically push in the direction of caution when it comes to defending libel suits. That’s why the ABA lawyer was right to say that a skilled First Amendment lawyer might have advised a client not to publish the report: The lawyer would be saying the value of publishing might not outweigh the risk-adjusted cost.
The trouble with this analysis is that it’s almost never the case that an organization would have a lot to gain by publishing any single criticism of a litigious person. The ABA could live without going after Trump. A newspaper could publish a different or tamer article.
And that’s why libel bullying is a free-speech problem: It systematically chills free speech by changing publishers’ incentives. The First Amendment regulates state action, not private action. But it’s the threat of government action — the successful libel suit — that scares the publishers into silence. The libel bully co-opts the system into his efforts to silence speech he doesn’t like. And lawyers, looking out for the interests of their clients, do his dirty work for him.
Anti-SLAPP laws can help streamline the defense process and reduce the costs of defending against a libel suit. Broadly, they serve free-speech interests. On their own, however, they are not enough. We need a deeper public commitment to protecting free speech, and a greater willingness by civic society to bear the risks of abusive suits as a price of free discourse.
In the end, it’s almost better that the ABA balked at publication. If it had published the report, few would have noticed. But by giving in to fear of Trump, the ABA unintentionally demonstrated the point of the report, drawing headline attention into the bargain.
~Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University.