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Today, you can get 20% off your Delete Me plan by texting Peter, that's my name, to 64000. Just text Peter to 64000. That's Peter to 64000. Message and data rates may apply. See terms for details. From the Vox Media Podcast Network, this is Channels with Peter Kafka. That is me. I'm also the chief correspondent at Business Insider. And today we're talking about...
My ability to talk on this podcast and for the Wall Street Journal and the New York Times and every other publisher to publish hard-hitting stories about powerful people and institutions. about local newspapers or bloggers or really any American having the ability to speak and write without fear that a rich person or a powerful business can tie them up in court.
This is something most of us take for granted, and it's because of rights established under a 1964 Supreme Court case, and those rights in that case are very much under attack right now. Here to talk with me about that case, it's called New York Times v. Sullivan. is David Enrich, who both works for the Times. He runs their business investigations and has just written a book about the case and its after effects and what's happening now.
We also talk about threats to the press that aren't directly tied to Times vs. Sullivan, like, say, Donald Trump suing CBS over a 60 Minutes interview he doesn't like. This is a conversation I've been wanting to have for a very long time, so let's get to it.
I'm here with David Enrich, who is the business investigations editor of the New York Times, author of multiple books. His newest one is called Murder the Truth, Threats, Intimidation, and a Secret Campaign to Protect the Powerful. You can buy it in March. Welcome, David. Thanks for having me.
David, this book is about New York Times versus Sullivan in 1964. Did I get the date right? Yep. Case that sort of underlines sort of the First Amendment and free speech in the U.S. Why is it important and why did you spend years writing about it? Well, those are two separate questions, believe it or not. I first got interested in this topic a few years ago because I run this small investigative group at The Times.
And it seemed like virtually every time we were writing about a rich or powerful person or institution, we were getting inundated with letters, threatening letters.
from high-priced lawyers basically warning us that if we went ahead and published stories, we would be sued into oblivion. You know, the New York Times is well-equipped to handle threats like that. It got me wondering, though, what it would be like at a smaller news outlet or if you're an independent blogger for example or an independent podcaster like what those threats would feel like and what the impact would be so i started reaching out
to smaller news outlets and media lawyers all over the country to just hear their experiences. And one anecdote after another came pouring in about the fact that these threats were really detrimental. They were scaring people away from writing about things. They were sometimes racking up huge, overwhelming financial costs. And the more I started looking into this, I started seeing kind of a small group of lawyers that were responsible for this.
And I then started to realize that the same lawyers who are often bringing these cases and making these threats were the same group of lawyers who were trying to overturn this famous Supreme Court decision, New York Times versus Sullivan. And so I started looking into that. That's kind of the backstory of how I got into this topic.
The Sullivan case is a weird one, though, and this is it's not what you would think would be kind of one of the most important First Amendment cases of all time. It dates back to 1960 when a full page ad ran in The New York Times that was basically is a fundraising.
for supporters or by supporters of Martin Luther King that were trying to finance a voter registration drive and trying to pay for King's legal defense fund in the south and the ad It was a big ad that was filled with lots of small print text that kind of laid out how unnamed Southern officials were kind of violating the Constitution and acting in.
extremely racist, kind of Stalinist ways. You can imagine the Facebook or Instagram post version of this. Yeah. And this is right. Exactly. This is 65 years earlier and a totally different time when you've got a ton of text crammed into a small space. And some of the details in the ad were either wrong or exaggerated.
Even though very few people in southern states actually subscribe to The New York Times, this came to the attention of a guy named L.B. Sullivan, who is a city commissioner in Montgomery, Alabama. And he happened to be responsible for the city's police force, which was one of the... institutions that had come under criticism in this ad. And so he sent a letter to The New York Times demanding that this ad be retracted.
The Times said, no way. You're not even named in the ad. So Sullivan sued The Times for defamation, and it very quickly won his case. He received $500,000 in damages, which at the time was a lot of money for The New York Times. And his success immediately became this kind of a blueprint for other racist Southern officials that were trying to muzzle the national media. This is the way you deal with press you don't like. You can sue them. You can sue them. And it became really clear.
very quickly that these lawsuits were effective. And there were, in today's dollars, billions of dollars of these lawsuits filed by Southern officials against national news outlets, not just the Times, but others as well, in a very short period of time. Anyway, the Times lost a trial. and appealed to the Alabama Supreme Court, which turned them down, and then appealed to the US Supreme Court. And the US Supreme Court took a very kind of notable
kind of stance toward these types of lawsuits and the law as it was being applied in Alabama. And they ruled that to be consistent with the First Amendment. Public officials like L.B. Sullivan going forward needed to prove not only that they had been defamed and that facts were wrong, inaccurate facts have been published, but also that whoever published those facts had done so deliberately.
And so either knowing the facts were wrong or they didn't care. Yeah. Or with reckless disregard is the phrase that was used. And the goal was basically to ensure that if you made an innocent mistake in writing about someone or something, you were not risking.
being sued to death by powerful public officials. And basically the theory was that even in a democracy, you need to have some breathing room to be able to vigorously debate issues. And if that means innocently getting a fact or two wrong, even if it harms someone. That's OK. And so Sullivan and a couple of ensuing Supreme Court cases became this crucial series of precedents that allowed the mainstream media.
to really start investigating powerful public figures and institutions. And it establishes what we think of as sort of the American version of free speech for the last 60 years. It's not just for news media, right? It's for anyone. This allows you to say.
basically what you want as long as it's truthful or you've attempted to prove that it's truthful. One interesting thing in your book you point out is unlike Roe v. Wade, which is early 70s, immediately unpopular with the right-wing and conservatives, they spend 50 years trying to... return it. Times v. Sullivan is sort of like universally accepted. Conservatives like it. Liberals like it. There is not a campaign that takes decades to try to attack this case until recently. So what's changed?
Trump is the short answer, and Trump has changed. Trump, and as you mentioned, there's been decades of near unanimity that this is an important decision, right or left. It doesn't really matter. Everyone supports this. Trump comes onto the political scene in 2016. And Trump is someone who has filed more lawsuits than I can count over his career and almost always loses, but has really used litigation as a weapon. And so in early 2016, he's campaigning down in Texas.
And in one of his kind of rambling stump speeches at a big rally in Fort Worth announces that he hates the media. And one of his goals, if he's elected president, is to, quote, open up the libel laws. And this is a ridiculous.
argument on many levels. It's not up to the president or Congress to open up the libel laws. It's a matter of the Supreme Court's interpretation of the First Amendment. He also was making a big thing about, we want to open up the libel laws so that we can sue people who lie about us. As we discussed under Sullivan, if you deliberately get facts wrong, you can be sued decisively. It doesn't matter. You can be sued very easily.
Trump is kind of talking nonsense here. But I remember when this came up and it was the summer of 2016. And, you know, it still seemed like preposterous that Trump could actually be president, even though he was going to be there was the Republican nominee. And he was saying crazy things all. the time and this just seemed like another one and first amendment nerds like myself sort of noted it and then moved on but it seems like like many things there was there was some seriousness behind it
Yeah, it was very easy to write this off at the time. I mean, he didn't seem to know what he was talking about. His facts were wrong. But it was, and I don't think anyone at the time would have said, oh my goodness, this is going to be a turning point. But looking back over the past eight or nine years, it's clear that it was a turning point. And that was true for a couple of reasons. I think one is that
There were a couple of lawsuits that had great success right around the time that Trump started talking about this. And there's the infamous Gawker case. Of course, there was a case right just that was decided days before the 2016 election. involving Rolling Stone magazine and a dean at the University of Virginia who had been defamed. And so the frat rape case. Yeah, exactly. And so there was this kind of building momentum.
In the legal community that showed that big successful lawsuits had the potential to really kneecap news outlets. I mean Gawker was killed by litigation that was financed by Peter Thiel around this time. And we'll get more into this in a little bit. But that was not a defamation case in Gawker. That was a privacy case. But the point was...
If you have significant resources, like you're backed by billionaire Peter Thiel, you can take a stab at these things. Worst case scenario, you'll have forced the publishers to spend a lot of money, to think twice about the next story they publish, and maybe... you'll actually get them shut down. Right. It was a real roadmap for how to at least intimidate news outlets and make them think twice about going after you.
you know, at the maximum case, as Gawker showed, to really shut them down. And you're right. It was not a defamation case. It was an invasion of privacy case. But it was still a blueprint for how to weaponize litigation against news outlets, especially if you have a deep pocketed backer like. Peter Thiel in your corner. And so both the Gawker case and the UVA Rolling Stone case came within months of Trump starting to talk about opening up the libel laws.
And it gave the lawyers who had been working on both the Gawker case, guys like Charles Harder, and the UVA case, Libby Locke from the law firm Clear Locke, this real kind of... kind of pedestals to speak from and shout from. And they were both they both became very quickly aligned with Trump on this issue of overturning Sullivan and in fact harder than went on to work for the Trump family.
And Libby Locke became a very influential person in kind of conservative legal circles advancing this argument. And you point out again in the book, I guess it's Trump's going to visit the Washington Post editorial board. And he is keenly aware. of the Gawker case and how it worked and what it meant. And you can sort of see the gears going in his mind. 100%. And he was almost envious, it sounded like. And this is a man who up until that point had filed at least a dozen defamations.
cases over the course of his career. And the only one that he had prevailed in was when the defendant failed to show up in court. So he's looking at Gawker, where Hulk Hogan, who, again, is a Trump friend going back many years, and Peter Thiel, who is emerging as a Trump financial.
supporter in the campaign. They've just had this incredible success. And Trump is kind of awestruck as he talks about this with the Washington Post editorial board. So it's it becomes clear in that moment to me and I think anyone else who is paying attention that this is something. This had really struck a nerve with Trump. So on the one hand, you have Trump sort of now elected and amenable to changing libel law, amenable, interested in punishing press he doesn't like.
At the same time, you also have a Supreme Court that appears to be newly interested. Explain that. Well, the Supreme Court for a very long time, this has been an issue of real consensus, as I said, on both the right and the left, and including some of the court's most conservative justices. And Clarence Thomas, in his confirmation hearings in 1991, was asked really.
directly about his views on New York Times v. Sullivan. And during his confirmation hearings, he had been bucking and weaving and deflecting and dodging the way many nominees do. But he gave a really clear answer on Sullivan, which is that this is an important First Amendment precedent. We treasure free speech in this country and Sullivan is consistent with that.
In 2019, a case reaches or is appealed to the Supreme Court involving a woman named Kathy McKee, who had accused Bill Cosby of rape. And Cosby's lawyer responded by calling McKee a liar. McKee then sued Cosby and his lawyer for defamation. And the case gets thrown out of court by multiple federal courts on kind of technical grounds.
And Charles Harder signs on as McKee's lawyer at that point. And Charles Harder, again, the lawyer who had just defeated Gawker. And it makes a pitch to the Supreme Court that this is a good vehicle to reconsider. at least aspects of how Sullivan has been interpreted over the years. And the case kind of, this is right around the time that Brett Kavanaugh is being confirmed, and the case kind of lingers for many months at the Supreme Court before finally there's an answer in early 2019.
The Supreme Court declined to even hear the case. But Thomas wrote... basically a concurring opinion, agreeing that the case should not be heard, but using the opportunity to argue that when... It's a manifesto saying we should get rid of Times versus... That's exactly right. That's a much better, more succinct way of putting it than I did. There's...
Yeah, it's a manifesto saying Sullivan was wrongly decided. It was not grounded in the First Amendment. Bring me a case so I can rule against Ties v. Sullivan. Exactly. It's an invitation, almost a request, asking for an appropriate vehicle. to attack Sullivan. And this made
huge amounts of waves, in part because this is a sitting Supreme Court justice, but it's not just any justice, right? Thomas, at this point, had emerged as kind of the leading intellectual figure in the conservative legal movement, certainly among people on the judiciary. And this made huge waves and it set off a real movement in kind of this network of conservative think tanks and pressure groups.
to figure out not only cases that could be vehicles for killing Sullivan, but also a tremendous amount of academic and kind of policy research looking at ways to do this and the legal arguments behind. Basically doing sort of. of the thing that conservatives started doing right afterwards in 1972.
Early 70s, there's this movement. How can we defeat this? How can we do it legislatively? How can we do it through the courts? This basically sort of like speed running this starting in 2020. Yeah, exactly. And this is something that, you know, the decision at that point is nearly. So this is something really delayed.
The right wing really embraces this with a lot of enthusiasm. You have groups like the Federalist Society, Heritage Foundation, Claremont Institute jumping on the bandwagon. You have politicians like Ron DeSantis in Florida. who are embracing this. And you have these lawyers who all over the country who start taking up cases that are designed to provoke constitutional challenges. And again, this is different than bashing the media, which is...
more on the right than on the left, but it's not new. We've seen it for decades and decades, really since sort of Nixon is the modern version of it. This is rewriting the country's laws to give... the media and again anyone it's not there's media isn't a protected glass the ability to publish and say things they think are true yeah they're calling for a
drastic rewiring of the interpretation of the First Amendment to narrow it, to make it much harder for people, whether they're journalists or not, to speak their mind freely about people or institutions in positions of power. We'll be right back with David Enrich, but first, a word from his sponsor. Support for this show comes from Delete Me.
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Message and data rates may apply. See terms for details. And we're back. Let's do some devil's advocacy here. The UK has sort of the inverse of American libel law there. In America, you sue someone for liable defamation, you have to prove that what they said was wrong. It's the opposite in England. It's one of the reasons lots of people, oil rich nations, Russian oligarchs, sue people in England because it's much easier to get a judgment there. So we always use that as sort of the...
We don't want to become like the UK. UK is famous for having, you know, very aggressive press, very sharp elbows. Maybe you can have both the free press and more restrictive libel laws. Yeah. I mean, that's an argument that is sometimes made. And London or the UK. UK in general is notorious, as you said, as a place.
for oligarchs and others to bring lawsuits. And often those lawsuits are successful and often those cases lead to important news being buried. And there's one famous example that jumps to mind involving Lance Armstrong and some of the British press started writing. about allegations that he had been doping. Armstrong sued, won, and the result was not just that the offending news outlet had to pay him a bunch of damages. It was the rest of the British press corps.
was kind of cowed into submission and stopped writing about it. And I think there are so many more examples of that where there is an important issue that the public deserves to know about that just simply never comes to light. Either because there's a lawsuit or because the lawyers working for these news outlets understand how the law works and are like, you just cannot write that because we will almost certainly.
And by the way, one of the reasons – and I'm going to undermine my devil's advocacy. One of the reasons that the problem is it's not just about what happens in England, right? Like I used to work at Forbes magazine. We had to do a settlement with a Russian oligarch who sued us in London because I think we –
published online or whatever it was. And that affected what we published in the US. Yeah, it's an enormous chilling effect. It makes it much harder for anyone who, whether you're in the UK or not, to publish things that are... challenging the accepted wisdom about people who have a lot of money. Second straw man that I think is more interesting, this idea we have of freedom of speech, freedom of the press, dates back to the 60s and modern times and before that, you know.
Talking the revolution, right? When we thought of the press as someone who had access to a printing press and later radio airwaves, TV airwaves, a pretty limited set of people that we were really talking about doing this kind of work. Now we have the internet. And literally anyone can get up and say anything. Those words can travel all around the world, click a button. There is essentially no one regulating any of that. There's a debate about whether the Facebooks of the world should have.
responsibility for that and that should be covered by 230 etc but the truth is you can see outrageous stuff on these platforms all the time sometimes it's true sometimes it's not shouldn't that require a more nuanced thought about How we're going to allow or not allow people to say whatever they want. Well, I think the challenge here is that under the Sullivan regime, again, you can sue people. If you're a public figure, you can sue people.
if they are knowingly lying about you or if they're being reckless and exhibiting reckless disregard for the truth of what they're saying. And I think the reality is just from a practical standpoint. If there is a conspiracy theory circulating online, like Pizzagate, for example,
It's very hard to go and start threatening or filing lawsuits against the thousands of social media trolls who are spreading this nonsense. So it's not that's that. And that's sort of my point, right? It's the volume like you can't. whack-a-mole this into submission if someone really is defaming you or if there is a coordinated campaign to defame you.
Yeah. And that's true. Although there's loosening the libel laws, making reversing Sullivan and lowering the threshold for successful lawsuits isn't an antidote to that. Right. It's still practically impossible to go after anonymous. Yeah. isn't there isn't isn't let's get rid of times v sell them it lets
think about how to properly apply that in a world where anyone can pull up their phone and publish anything. Yeah, and I agree. I think that is worth considering. But I also think that the current kind of legal system we have works pretty well in this regard. To kind of dwell on the Pizzagate example for a second.
And Alex Jones, who is one of the leading purveyors of that, was he was threatened with legal action for spreading that by the guy who owned the pizza shop in Washington, D.C. And the threats were sufficiently scary for Jones, who is not someone. who is well known for exercising restraint or being
you know, legally cautious, I would say, the threats were sufficiently serious and scary for him that he pulled back and retracted what he was saying and apologized for. So in the meantime, a dude with a machine gun showed up at Comet Pizza looking for the pedophiles. 100%. And so the damage was done. But again, to me, that's not a question of needing a stricter application of libel laws or making it easier to sue. That's a broader—and you just mentioned very briefly Section 230. To me—
And this is a really complicated issue, and I'm frankly not sure quite where I come down on it. But to me, it's a broader question of that and whether you are the granting of kind of blanket immunity to technology companies or social media platforms. or any publisher, really, to be immune from liability for what their users post. That, to me, is a bigger issue. And again, I'm not saying the solution is to...
kill 230. I think it's really complicated and nuanced. I can kind of see both sides of that argument. But to me, that's where the friction is. It's not with Sullivan. And I think there are people like... Justice Thomas, for example, who have cited these online conspiracy theories and Justice Gorsuch as well. who are using that as evidence that we're awash in misinformation today. The mainstream media is not exercising the same level of fact checking.
and restraint that it had in the era in which Sullivan was decided. But to me, that is a real sleight of hand because no one is arguing that the online spread of disinformation is a good thing or acceptable. It's just a question of whether it necessitates. or would even be remotely salved by making it easier for public figures to sue
That's the question to me. Your book is sort of a tour of meaningful libel cases, a lot of which I knew about and a lot of which I didn't. You probably finished writing this last year. Where do things stand right now? Is there a case that looks likely to come to the Supreme Court? And if it does, what's the best bet on...
on which justices might be interested in overturning it. You mentioned Thomas, you mentioned Gorsuch. What's the sort of headcount on who's amenable to this? Well, the bottom line is I don't know. I mean, Thomas and Gorsuch, yes. Barrett is a question mark. I think Alito, who has been a real champion of First Amendment issues in general, has also shown recently a willingness to kind of go with Thomas and be moved to the right on certain issues.
I don't even think we quite know where Kavanaugh and Roberts are on these issues. A lot of folks thought Kavanaugh would be pretty sympathetic after his confirmation hearings. On the other hand, there have been some recent decisions where the majority of the justices, including Kavanaugh, have used the logic in Sullivan.
in other cases. And I think a lot of lawyers have looked at that. A lot of First Amendment lawyers have looked at that and said kind of breathed a sigh of relief and said, Sullivan. And that might be true. And I think the bigger question to me is not whether Sullivan gets overturned outright. It's whether some of the cases that followed Sullivan and expanded the group of people who were protected or who faced higher bars under Sullivan.
So Sullivan just applied this higher threshold to public officials, so elected government leaders, people like that. ensuing cases expanded that circle to include public figures so celebrities athletes billionaires oligarchs uh university presidents and those are people that the supreme court has ruled in previous cases were As much part of the public discussion and as much deserving of public scrutiny.
as government officials. But I think it is entirely possible that one of the kind of intermediate... You shave that back. Yeah, you shave that back, narrow the group of people who have to meet this higher standard, and... That could be really detrimental, I think, to the ability of the media and just about anyone else to scrutinize and criticize people or institutions that hold power. It's easy to think about this at a national level with people like Trump and Elon Musk running around.
But a lot of this is playing out at a much more localized level. Local car dealer. Yeah, local real estate person, even local restaurant owner who's irritated by your nasty reviews on Yelp. Like everyone is protected by the Sullivan regime. Anyone who wants to exercise their right to free speech and their ability to criticize people and.
I think it's very easy to lose sight of that in the current environment where it's kind of the media versus Trump and Musk. It's much more complicated than that and protects a great many more people than just the mainstream media.
And is there a court case you think is, if you had to bet, is most likely to test this in the next year or so? In the next year or so? I don't know. I mean, there are a bunch of cases that are kind of percolating through the federal court system. You had to pick one horse right now. Man, one horse. I would. say the one horse I would pick is the Sarah Palin case, probably. Sarah Palin versus your employer. Yeah, unfortunately.
So this is a – I mean do you want me to go down that rabbit hole? You can go back and find an older discussion I had with David Fulkenflick about this years ago now because it's been going on for a while. But basically it's an editorial which wrongfully suggested that Sarah Palin was responsible for someone murdering someone. Yeah, I would put it a little differently. But yeah, that's her argument. That's her argument. The Times' argument in one sentence is that...
The editorial got some facts wrong or made some wrong implications, but that it was corrected within like 13 hours, I think, but without any request for a correction. And there was an apology issued immediately and, you know, shared broadly to the Times. millions of subscribers and that there is no hint of reputational damage or harm. So you emailed me...
right after the election last fall and said, hey, I got this book coming out. I want to talk to you about it in March. I said, it seems very timely. And I didn't realize how timely it was because within days of the election, ABC had settled its defamation suit with Trump. We saw Trump extracting a settlement from Meta. It's not directly related to the Times of Sullivan. Maybe it's on the edge. You know, he's filed lawsuits against CBS in Texas and Gannett, the Des Moines Register in Iowa.
which aren't even libel lawsuits. They're suits claiming that there's consumer fraud because, one, he didn't like the way a CBS 60 Minutes interview was edited, and also because Ann Seltzer got her poll wrong. I mean, things that are clearly not...
issues of libel and defamation. But it looks, you know, there's a decent chance that CBS is going to settle that suit. We don't know what's going to happen. I mean, the point being is that it looks like Donald Trump himself and then his administration at some point. Well, we know it is administration are going to be putting a lot of pressure on media outlets, whether or not they're using libel law and Times versus Sullivan. How are you thinking about that?
Well, I think it just underscores the degree to which weaponizing the legal system has become against the media has become a. Just really the calling card of the MAGA movement at this point. Would a reaffirmation of Time Sullivan make it that much harder for Donald Trump to sue you in Texas claiming that there's consumer fraud? Or would he just go ahead and do it anyway? Well, so I think the emphasis on Times vs. Sullivan is important, but it's also not the full story, right?
No, I don't think a kind of a reendorsement of Sullivan would change Trump's appetite for sitting in the media. I do think that the constant chipping away at Sullivan, whether it's at the Supreme Court level or elsewhere in. other lower courts, sends a message that these lawsuits are going to be effective, not just in terms of winning the court case, but extracting settlements and just prolonging the cases so that they grind through the federal and state court systems over a period of years.
And that's really expensive for publishers. But I think more broadly, the fact that Trump and his allies are getting traction. With cases like this, it really and one of the things I learned in reporting this book, which is, again, a lot of it's about solving, but a lot of it is also about the environment that small and independent publishers are facing across the country where.
They're coming across lawyers and subjects of investigations that have been explicitly inspired by Trump and are using the Trump playbook to muzzle critics at a very local level. And I think that as. Putting aside Sullivan, I think that Trump's tactics here with ABC, with CBS, with the Des Moines Register are very clearly sending, kind of giving a real green light to his supporters around the country to use these.
And I also think that talking to people in Trump's orbit about these lawsuits that he's filed, the fact that these outlets like ABC, like Meta, possibly like CBS and Paramount, that they're settling or even considering selling. has really emboldened Trump and encouraged him to file more lawsuits, make more threats, and to kind of amp up the rhetoric that he and his supporters are using against the media. Is there anyone with power in that world saying,
just let's tap the brakes a little bit. You know, we all want to dunk on the media and or muzzle them when we don't like them. We could easily imagine a world where we're on the other side of the coin. Yeah, not really. I mean, there's the closest example to that I can think of is in Florida where...
Ron DeSantis a couple of years ago was pushing legislation that would have basically explicitly and deliberately violated the solvent requirements. And the goal of the legislation was to, A, make it easier for people like him. to sue news outlets. But more broadly, it was he was trying to kind of provoke a constitutional reckoning over this. And he was hoping that if Florida passed this law, it would lead the Supreme Court to review the law, which would, he hoped, kill Sullivan.
The legislation failed for one reason, which was that there was an uproar among conservative talk radio hosts who were fearful that getting rid of Sullivan would expose them to basically... infinite liability and basically drive them out of business. And that argument carried the day in the Florida legislature. And to me, that was a reminder of the degree to which Sullivan...
And just more broadly, our attitude that this is a country that supports free speech and that it's OK. Like getting facts wrong is suboptimal, but it's sometimes how things operate in a country where we. really cherish free speech as one of our foundational ideals. And that's something that does not have or should not have a partisan attachment. That's something that should appeal.
To anyone, regardless of your politics. So what is to be done? Obviously, you know, at some point, there'll be a Supreme Court case. No one... There aren't many people who have influence over that. In theory, there could be legislation. It doesn't look like that any kind of meaningful legislation is going to happen in Congress. What can happen at a local level? And are there...
things that you're seeing publishers, free speech advocates do that give you any kind of hope? Well, to answer your second question first, no. I don't I think that right now and, you know, the the book has been updated with after Trump's election. And one of the things I wrote about kind of in the frenzied period after the election and before the book was actually being printed. Was that there is immediately was an fear among publishers, media lawyers, journalists that.
Trump was about to take the rhetoric that he'd used in his first term during the campaign and really ratchet it up and that there might be. There are many ways to weaponize the federal government to go after news outlets or anyone else who dares criticize the president, whether it's launching tax investigations or immigration investigations at publishers. The head of the FBI has an enemies list. Media people aren't.
on it. He made it quite clear that he wants to go after the media. Yeah, he's been explicit about that. And so I think that the mood I'm seeing as I talk to people in the media and lawyers who represent the media is one of really great concern. And so I've not seen I think there's maybe we'll see some some news outlets banding together and legal challenges to various moves to the Trump administration.
might make. We're seeing kind of hints of that right now with the Associated Press situation where they've been restricted from covering White House events. And there's been some criticism from other news outlets, although not as much as I would have expected, frankly. At a local level, I mean, I think there's there has been in recent years some grounds for hope. And there are what's known as anti slap laws that basically allow if you get sued by a public figure.
you can file an anti-slap motion which basically means that if if the suit is found to be designed to suppress your speech not only does the case get dismissed but you can get the other side to cover your attorney fees And this is something that exists in one form or another in like 30 or 35 states right now. And there are a bunch of states that are actively considering these laws. And again, interestingly.
it's not being promoted by people on the left. It's often being promoted by people on the right. That's the case in New Hampshire, in Iowa, among other states where right now they're actively considering these laws. And I think that... has proven in states where these laws exist like new york to be a real deterrent against the use of defamation suits to intimidate and shut people up on the other hand i think the reality is that so many publishers And so many journalists are operating.
I'm kind of a financial knife's edge right now. If you've listened to this podcast before, you're probably aware that it's not a great environment. It hasn't been a good environment on the business side for media for a long time. No, it's terrible. And I think that that's part of the reason strategically.
lawsuits have been are being used so much it's like the act of having defend against a lawsuit is it's time consuming it's often expensive even if you have libel insurance which many independent publishers can't get You get sued, and then your insurance carrier is going to jack up your prices and your deductibles. And those are costs that can extend for years into the future.
And one of the things in talking to a lot of local reporters and publishers for this book, one of the things I kept hearing is that it's sometimes the easiest thing to do if you get these threatening letters. from powerful local figures is to just back off. It's simpler. It's safer. It allows you to fight another day and go after other targets that maybe won't be quite as litigious.
To me, that's a really concerning development. And we're already, as you know well, and you've talked about a lot, there are... You know, we're facing a real crisis with local news in this country. And this is something that really has the potential to exacerbate that. And publishers are faced with a choice between either sticking to their guns.
And facing potentially catastrophic financial consequences or caving, in which case they are kind of forsaking one of their. Right. And again, we have a local news desert problem independent of people threatening. It's just hard enough to just keep the lights on day to day if you have to deal with it. Even hiring a lawyer to respond to a letter is an expense some people can't take on.
Yeah, it's really expensive. And it's also just intimidating, right? I think one of the great things about journalism right now is the rise of all these people who have really good sub-stack newsletters, for example, or doing their own podcasts. And that is, I think...
just an amazing thing for journalism. And it fills at least some of the hole left by the depletion of newsrooms all over the country. And yet people like that who are doing that, who have lots of guts and all the energy and ambition in the world. do not necessarily have the financial resources or know-how to find a lawyer. I mean, Substack as a legal fund, I don't think we've really seen it put to the test. And it seems inevitable that someone on a Substack is going to deal with one of these.
suits and eventually it's going to get up to their ownership and we'll see how they respond. Yeah. And I think that'll be a good test. I mean, maybe that may be a year or two from now will become one of the kind of rays of hope. Maybe that'll work out well. But I think in the short term and what I've seen is.
individual journalists folding and giving up. And I don't blame them for that. It's the rational thing to do financially. And also it's from a mental health standpoint, I think. And I tell a lot of these stories in the book. This is something.
It takes a real toll, especially if you're on your own. I mean, I sit at the New York Times and previously was at the Wall Street Journal. And those are deep pocketed, well organized, like have in-house lawyers with really good in-house lawyers who have a ton of experience in this and the ability to pay for.
and quickly get on the phone good outside lawyers in any part of the world, really, to deal with crises as they emerge. And even for us, this stuff can be really stressful. And you have to be actively on guard about... It deterring you from tackling certain topics. This is sort of as an aside, but can you give us a sense of the lawyering? Because you do a lot of these big, hairy investigations that often involve famous, really rich people. Um...
I don't want to name individual ones because maybe he didn't work on those. But when you see the Times do a lengthy story about Bill Gates and his association with Jeffrey Epstein. Yeah, I was the editor on that story. So I'm happy to talk about that. Or the Elon Musk stories. you've done and the Journal has done.
How much work – my belief and understanding is basically every word down to the sort of period has been negotiated with multiple lawyers from both sides. Am I getting that right? Well, I wouldn't – I wouldn't use those words. I mean certainly they have been – very carefully vetted by our in-house lawyers. And before they even get to our lawyers, they've gone through an intensive, multiple, very intensive rounds of internal scrutiny, whether it's the reporters at the first step.
The editor, so taking the Bill Gates, Jeffrey Epstein stuff, that would be me. My boss would then look at it.
her boss would then look at it, and then at that point it's going to the lawyers. In-house lawyers and probably external lawyers. It depends on the situation and where we're writing about. I can't remember in the Gates case if there are external lawyers involved, but sometimes there are external lawyers. But primarily, I mean, the Times is... blessed by some just extraordinary lawyers in addition to all that internal stuff you're doing right at some point
Bill Gates' attorneys will also be weighing in, right? So there's an ongoing discussion with them. It's not that they get to review what you've printed in advance or what you're going to print in advance, but they certainly can weigh in on it. Yeah, I mean, normally the way that works, and I can't – the Gates stuff, I –
This doesn't necessarily apply to that just because I can't remember. But in a normal course of – in any type of story we're doing, we give the subject of the story full transparency about what we're writing and the right to respond to everything well in advance. Usually that's when we start hearing from the other side. Sometimes we hear from them beforehand, but oftentimes it's then. And, you know, we'll send what we call a no surprises letter.
that goes in great detail through every point. You can sort of discern quite easily what the story is about because it's just a long list of questions. Yeah, it's a long list of questions and points that we are seeking to understand their point of view on. We're trying to fact check. And, you know, oftentimes those letters like there's plenty of time built into the processes. We're not giving them even if we give what seems like a very quick deadline.
We have plenty of time built into our schedule so that we can hear what the other side has to say and really take it seriously. And we try to have an open mind in that process. And oftentimes. You know, it cuts both ways. So we'll oftentimes at that one get a threatening letter from the other side's lawyers. But oftentimes those threatening letters also include a slew of details about their
You know, their version of the fact. And so that can be helpful, actually, because it provides facts that they are agreeing with. It also it's a hassle. Right. And that's just the way the business works. Starting point, this is where I started kind of thinking about, you know, and we'll go through those letters with...
Our lawyers, like a whole, you know, many layers of editors. And oftentimes that means we go back to our sources. We do new reporting. We try to figure out what the truth is. And it takes a long time. And it's often expensive because we're.
You know, you have several reporters working on a story that's going to add. Sometimes it'll add a month or two to the reporting process. And sometimes they have to the reporters have to travel somewhere. You know, there's all sorts of expenses and time involved in it. And that's fine. And that's part of.
I think what makes places like the New York Times, but by no means limited to the Times, great. But this is what got me thinking about how this might affect someone at like a logo paper in Colorado, for example. How are they going to be equipped to deal with a letter like that? And the answer I got over and over and over again is that not for lack of trying, but in general, they're not well equipped.
News outlets that do not have the resources to have a ton of journalists and fact checkers and editors and in-house lawyers. are much more likely to be intimidated and cowed and scared away from writing about things, understandably. And those that have the guts and the resources to keep going...
often pay a really steep price for that, even if, in the end, they know they're going to win in court. And they do win in court. You can win in court and still lose. The battle depletes you financially, emotionally, physically. You just stop publishing. And it's by design. That's not an accident.
Right. That is the intent of these lawsuits often. And and certain plaintiffs have talked about that. Sometimes in discovery, when these cases move toward trial, you can see the internal emails that the plaintiff was sending boasting about how we're going to we're going to run at the clock on them.
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One more semi-tangent. I have seen, it seems to me, a rise of people using Twitter specifically to say, hey, and they're usually sort of ideologically aligned with the Elon Musks of the world. It's like, hey, the New York Times is coming after me to do a hit piece. I'm going to get.
out in front of it. Here's the argument they're making. Here's why it's wrong. You know. I just saw one of these yesterday. I'm thinking about that same one as well. I'm presuming you have seen versions of this. I mean, I think the one we were talking about yesterday referenced as a Times reporter. So. That's not a suit. It is definitely meant to intimidate, but it's also someone tweeting. Is that a meaningful...
Is that a useful tactic on the part of the person who thinks they're being wronged? I don't know if it's useful. I mean I think that there's – it's frustrating as a journalist when – people do that because we're getting kind of scooped by them. Sure, that's the deal. Yeah, but it's certainly within their rights to say whatever they want. And as annoying as that might be for us reporters, I mean, I think the fact, again, is that...
Look, the mainstream media, the New York Times, I personally like make mistakes. Right. We all do. We screw up stories. We get facts wrong. Sometimes we sometimes we even like injure people's reputations. by accident. I think almost always we are operating in good faith. And I think that one of the myths that the right wing is trying to propagate is that we're out there doing hippies. We're trying to take people down. We're pursuing narratives.
Facts be damned. Can I just do a slight tweak here? You have an alarming smile. Well, a lot of the critiques are, oh, they're doing it for clicks, et cetera. They're not doing it for clicks. That's not how it works. But. No one wants to work on a piece for months and then decide, oh, there really isn't a good story here. I'm not going to publish it. Or I thought it was a good story, but it wasn't. And there is definitely sort of a baked in incentive on the part of.
Journalists who do this kind of work do come up with a great story. Yep, for sure. Now, it has to be an accurate story for them to publish in an ideal world. But no one pursues a boring story. No one spends months on a story that isn't going to go anywhere. So there's a bit of truthiness to that argument. The facts be damned part is...
Incorrect. That's a really central part. But you went after this story because you thought there was a thing here that was bad about me or my company or my organization. Yeah, for sure. Look, most reporters, especially investigative reporters, view their job.
as holding powerful people and institutions to account. So we're not going to pursue – we're not going to spend months on an investigative story if we don't think there's something there for sure. But I think that – Certainly most of my colleagues whose conduct I am very well aware of and closely involved with, like...
There are many, many, many times where we pursue stories that never see the light of day because we have a hunch or we've gotten a tip and it just turns out to either not be true or we can't nail it at all. And there's. Look, obviously no one wants to spend a long time working on a project that's not going to come to fruition. But I really think that by and large, journalists act pretty responsibly. Look, we have our biases. We have our blind spots.
We get things wrong for sure. And by the way, we totally deserve scrutiny and criticism when we screw up. And sometimes we deserve to be sued. Right. Like they're for sure. We have I don't know if The New York Times, but I'm. Probably. But certainly news outlets in general have screwed things up in a way that has damaged people's reputation and that we owe them not just apologies, but probably compensation.
For sure. Or at least I'm not arguing against it. What I'm arguing against is what I think is generally a bad faith. twisting of what most journalists do where there's a construct there's a narrative that gets built that we are out to destroy someone because we don't like their politics or we don't like what they stand for and
I'm not saying – There are people who do that and there are people who operate in bad faith and there's entire news organizations that operate in bad faith. Yeah, I don't know. I mean I'm not sure what you're referring to there. Maybe. There's – I'm –
We'll just leave it there. Fair enough. But look, I think that by and – The point is you can abuse the First Amendment. You can abuse Times v. Sullivan. For sure. Well, I think you can abuse the First Amendment for sure. But I also think – Look, the cases I've seen where there are many cases out there where people, powerful people, public people meet this high standards enshrined in New York Times versus Sullivan and prevail in.
defamation cases, right? There's another narrative that's out there right now that this is an insurmountable bar that's been created. That's just not true, right? I can rattle off a bunch of cases right now where public figures or public officials have won defamation cases right there's uh there's a and often it is and and look those are fair game to file if you get defamed and someone is making stuff up about you or acting recklessly in terms of what they're saying about you like
You may have grounds to sue, and I'm not arguing that you shouldn't sue. What I'm seeing, though, across the spectrum, nationally, internationally and at a local level and everywhere in between is a wave of powerful people and institutions. making bad faith legal arguments that are designed to shut people up and designed to punish people and deter people from writing negative things. And I think that, again, I don't know the specifics of this Twitter thing that we're alluding to.
kind of cryptically. But I think that sometimes what I've seen, and I'm not speaking about this particular incident, but sometimes what I've seen is people who try to front run articles and investigations.
have more to hide than it lets on and sometimes that can be a tell that you're really scared you don't want the truth to come out because look if you go you're trying to sort of cast public opinion in advance of a story that you're not going to like at the new york times if a reporter comes to you with a bunch of fact-checking questions and their facts are wrong.
We will listen and we will do our best to get our facts right. We don't always succeed in that. Sometimes we get facts wrong. Sometimes we have biases that blind us to things for sure. And we deserve to be called out on that. But by and large. And always, I think we operate in good faith. We strive to get fact right and we're aiming for the truth. And that can sometimes be.
in the eye of the beholder. But like we try to get things right. And I think that by and large, the legal assault that we're seeing from the White House on down against the media. is not in good faith. It's in bad faith trying to scare people away from telling the truth and trying to scare people away from calling out people like the president who are often lying.
and engaging conspiracy theories and warping facts to advance an agenda. And that is something that the media, by and large, not perfectly as a general rule, is set up to oppose. and to provide a check on. And I think that's really important. And I think that that explains a lot of the motivations of the people who are using these lawsuits and leveling these threats and engaging in this really incendiary rhetoric against the media are trying to do it. They're trying to shut us up.
David Enrich, I was trying to figure out a way to end this on a positive note. I think a defense of journalism at First Amendment is the closest we're going to get to it. Thank you for your time. The book is Murder the Truth. You'll be able to buy it in March. Thanks for having me. Thank you. Thanks again to David Enrich. Like I said, I've been wondering.
to talk to him about this since november thanks again to jelani carter who edits and produces the show to our advertisers who bring you the show for free thanks to you guys for listening a bunch of cool stuff lined up in the near future including a visit to by southwest if you're still listening this podcast you must like this podcast so you can come hear me speak with dan clancy he runs twitch we'll have more information about that in a future show
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