The Supreme Court ruled in 1964 that journalistic organizations were protected from libel or defamation lawsuits brought by a public figure unless that plaintiff could prove the journalists had acted intentionally. The book, “Murder the Truth,” documents a well-funded effort to undo that longstanding protection. William Brangham spoke with author David Enrich for our series, On Democracy.
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Geoff Bennett:
While the Trump administration eliminates Voice of America, a new book examines another longer-term attack on the press here in the U.S.
William Brangham has the latest in our series On Democracy — William.
William Brangham:
That’s right, Geoff.
After the First Amendment to the Constitution, one of the foundational legal protections for the free press is the precedent set by a case called Times v. Sullivan. The Supreme Court ruled in 1964 that journalistic organizations were protected from libel or defamation lawsuits brought by a public figure unless that plaintiff could prove the journalists had acted intentionally with what is known as — quote — “actual malice” or with — quote — “an intentional disregard for the truth.”
My guest’s new book documents a well-funded ongoing effort to undo that longstanding protection. It is called “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.” Its author is New York Times investigative journalist David Enrich.
Welcome to the “News Hour.”
David Enrich, Author, “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful”: Thanks for having me.
William Brangham:
This is an incredibly well-timed book. I mean, President Trump, obviously, you started it before you knew he would be president, but he has long said that the press protections in this country are far too strict and should be changed.
But you have said that the genesis of this book was an experience that you and your colleagues at the investigative unit at The Times, what you went through when you would do stories.
Explain that.
David Enrich:
It seemed that basically every time we were starting to report on a powerful person or a powerful institution, we were on the receiving end of threatening letters from that person’s lawyers.
And The New York Times has resources and very good lawyers. And so we’re equipped to deal with that. But it got me thinking what that experience would be like if I worked at a smaller news outlet or was an independent journalist.
And so I started calling around to journalists all over the country and began hearing these absolute horror stories about the experiences they had been through, either being threatened or sued or otherwise intimidated and bullied. The bottom line was that journalists and members of the public all over the country, based on my reporting, were really — they were shying away from stories that needed to be told, or in some cases were being sued out of business when they had the guts to actually tell the stories.
William Brangham:
Times v. Sullivan, contrary to what its critics say, is not a bulletproof vest to reporters. I mean, if they make a mistake and it’s done, if they really do screw up, they can and do get sued.
Remind us what that standard actually says.
David Enrich:
So the standard says that if you are a public figure or a public official, in order to win a defamation lawsuit, you not only need to prove that the underlying facts were wrong and that your reputation was damaged as a result of them.
You also need to show that the journalist or whoever else made the offending remarks did so either knowing that what they were saying was false, so, in other words, lying, or acting with a reckless disregard for the truth.
And the Supreme Court’s rationale for that was that, in a country that really values free speech and where it’s important to have public scrutiny and investigations and the ability of people to criticize powerful people, it’s important to give people a breathing room, so that, if they get a fact wrong or make an honest mistake in the course of scrutinizing someone powerful, they don’t risk getting sued into oblivion.
William Brangham:
Your book details a lot of this campaign, principally from right-wing organizations and donors and law firms. Tell us who the characters are here. Who’s pushing against this?
David Enrich:
Well, there’s a whole — it’s a pretty wide range of people.
And on the one hand, you have a small group of lawyers whose businesses revolve around either suing or threatening the news media and who would gain financially, I think as well as ideologically, from changing the legal standards so that it becomes easier to sue and threaten news outlets and journalists.
You also have people like Clarence Thomas, who really, I think, firmly ideologically believe that the media has amassed too much power and they are determined to make it harder for the media and for journalists and for members of the public even to say or write things that are critical of people in positions of power.
And so you also have a whole army of activists, academics, think tanks, people like that, institutions like that all over the country that have kind of joined this charge in the past several years.
William Brangham:
Is it, as we have seen with other major cases, gun rights cases, abortion rights cases, the hope that they can drive one of these cases all the way up to the Supreme Court and thus chip away at Times v. Sullivan?
David Enrich:
Absolutely.
I mean, that is the clear and often articulated goal of a lot of lawyers, a lot of conservative activists, that they want to see the Supreme Court, if not overturn Sullivan outright, then at least kind of narrow its scope.
The thing that I think is interesting here is that, even if that campaign fails — and it might — there might not be enough justices who want to overturn it — it’s already having a really big effect, because you’re seeing judges all over the country at the state, in some cases federal level, who are voicing support for this endeavor.
And, in doing so, they’re causing legal actions that normally would get thrown out of court at a pretty early stage, they last a lot longer. And they are very expensive and time-consuming, not just for journalists and news outlets, but for normal people who maybe circulate a petition about a real estate developer in their town or have a post something on social media that gets them in trouble.
And so it’s already causing a really severe chilling effect on the ability of everyone from a normal citizen to someone with a Substack newsletter or podcast to journalists at major news outlets being able to really properly scrutinize and hold powerful people to account.
William Brangham:
You’re getting at this point here, but let’s just say a viewer out there is watching this. They’re not a journalist. They may not even be a big consumer of news. Let’s just say Times v. Sullivan does get chipped away at.
What is the ramification of that?
David Enrich:
It’s just going to be much more dangerous for people to speak what they regard as the truth to powerful people, institutions, companies, things like that.
And we have seen this over and over again over the past few years. And I document a lot of these stories in the book, where you have a powerful local interest, maybe it’s a company, maybe it’s a businessman, maybe it’s the mayor or the police in your town, that do not like what you are reporting on. They do not like what you’re saying. If you’re just a member of the public, they don’t like the petition you’re circulating or that comment you made on Facebook.
First, they will threaten you and say, if you don’t remove that comment or that petition, we — you might get sued. And if you refuse, you actually might get sued. And even though the law is on your side right now with Times v. Sullivan in place, the process of dealing with that litigation, going to court to try and get it dismissed, hiring a lawyer, it can take years.
It’s extremely expensive. And over and over again, what I have seen in my reporting is that the much safer, easier, simpler route is what a lot of people do, which is they just back down. And for people who believe in free speech and being able to speak up and say what you believe, especially about people or groups that have power in our society, that’s a really disturbing trend, I think.
William Brangham:
The book is called “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.”
David Enrich, thank you so much for being here.
David Enrich:
Thank you for having me.
