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- [00:01]
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- [00:16]
Tonya Moseley
This is FRESH AIR. I'm Tonya Moseley. One day in February of 2019, during a gathering of the Supreme Court, Justice Clarence Thomas raised the prospect of overturning one of the most consequential free speech decisions ever made. New York Times vs. Sullivan is a landmark case from 1964 that strengthened first Amendment protections by enabling journalists and writers from top national outlets to local newspapers and bloggers to pursue the truth without being afraid of being sued. Well, in a new book, author David Enrich explores how Justice Thomas words coincide with a surge in legal threats and litigation against journalists and media outlets. The the charge is being led by the powerful tech billionaires, corporations and our president, who made clear his intent back in 2016 on the campaign trail, if.
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Donald Trump
I become president, oh, do they have problems? They're going to have such problems. And one of the things I'm going to do, and this is only going to make it tougher for me, and I've never said this before, but one of the things I'm going to do if I win, and I hope I do, and we're certainly leading, is I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws.
- [01:46]
Tonya Moseley
As Enrich's book points out, this was the first time a major US Candidate had ever talked about the reform of libel laws in a stump speech. President Trump has since sued network outlets like CBS and abc, as well as smaller publications like the Des Moines Register and pollster J. Ann Selzer, claiming election interference in Murder, the Truth, Fear, the First Amendment and a Secret Campaign to Protect the Powerful. David Enrich investigates what he calls the secret movement to overturn the landmark Supreme Court decision and what it could mean for press freedom. Enrich is the business investigations editor for the New York Times. He's written several books about the intersection of law, business and power, including Dark Towers, Deutsche Bank, Donald Trump and the Epic Trail of Destruction, and Servants of the Damned Giant Law Firms, Donald Trump and the Corruption of Justice, which looks at the law firm Jones Day and how it represented Trump. David Enrich, welcome back to the show.
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David Enrich
Thanks for having me.
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Tonya Moseley
So you've written several investigative articles and books. What brought you to this Story?
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David Enrich
Well, I run a small team of investigative reporters at the New York Times, and back in 2022, I realized that it seemed like just about every time we were investigating or writing about a powerful person or powerful institution, we were getting bombarded with threatening letters from that person's lawyer. And, you know, the Times is pretty well equipped to handle those kinds of threats. We have an excellent team of in house lawyers, and we have a lot of experience dealing with those kinds of threats. But it got me wondering what that would be like if you worked for a smaller news outlet or if you were an independent journalist. And so I started calling around to reporters, editors, publishers, lawyers all over the country and just asking them about their experiences and whether they'd been threatened or if they'd been sued. And I just started hearing this litany of really kind of upsetting horror stories from people that had been either, you know, pushed to kind of the financial and psychological brink by these threats, by these lawsuits, or in some cases had faced these threats and essentially decided to not write about certain things or cover certain topics because they were scared about what would happen if they did. And it occurred to me that that was a really pronounced trend I was seeing that has not gotten a lot of coverage. And it led me to start digging a bit deeper into the legal protections that journalists have and why it was that even with the strong protections that exist today, why these threats were all. Why these threats were already being effective.
- [04:32]
Tonya Moseley
Yes. So you tell this story through several key figures. Supreme Court Justice Clarence Thomas, Silicon Valley billionaire Peter Thiel, President Donald Trump, and there's also a team of high power lawyers whose jobs are to go after the media. Were you threatened with legal action at any point during the writing of this book?
- [04:53]
David Enrich
Yeah, on a couple of occasions. On a number of occasions. Kind of small characters in the book basically told me that if I get anything wrong about them, they're gonna sue me. Which I found not that surprising based on my prior experience, but a little bit tone deaf on their part since I told them I was working on a book about threats against the media. But the biggest and kind of most extended series of threats I got was from a law firm that's a big character in the book. And that exists for primarily one reason, which is to threaten and file lawsuits against the media. The firm is Clairlock, and they took great umbrage at some of the things I was reporting on them both for this book and for the New York Times, and over a series of letters, basically explained to my lawyers their great disgust with Me leveled some ad hominem attacks against me. And the thing lingering in the background was that they're a law firm that makes its money from selling people. And it was very clear that that was a prospect they were raising with me.
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Tonya Moseley
As you mentioned, you work for the New York Times, so you have a strong legal team behind you. We're going to talk a little bit about Clarelock a little bit later. But, you know, President Trump has and others have said about this landmark New York Times vs. Sullivan case, which offers protections to journalists. And it's the basis for your book is basically like a get out of jail free card for journalists to basically get away with writing or reporting anything. So I think it would be great for us to talk a little bit about what Sullivan actually does, what it protects.
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David Enrich
Yeah. So Sullivan was a decision that the supreme court issued in 1964. And without going into the very kind of colorful, interesting backstory of that, the outcome of the case was that the Supreme Court ruled that if you are a public figure or a public official, to win a defamation case, you need to prove not only that someone got their facts wrong and that you were defamed, you also need to prove that whoever wrote those words or spoke those words, did so knowing that what they were saying was false, in other words, lying. Or that they acted with reckless disregard for the accuracy of what they were writing. And that set a high bar for public figures and public officials to clear. And that was by design. The Supreme Court wrote in Sullivan and then in some subsequent decisions that there is a great public interest that dates back to the founding of the United States and having unfettered speech and debate and argument about matters of public importance in this country. And their argument was that if you have potentially ruinous litigation hanging over your head every time you speak critically about a powerful person, you're going to self censor or you're going to be sued into oblivion. And both of those outcomes ran counter to what the First Amendment guaranteed about free speech and freedom of the press.
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Tonya Moseley
Okay, just to slow down a little bit, one point of contention, or it seems like over the course of many lawsuits, something that is often debated is what is considered a public figure. So in this case, what is considered a public figure?
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David Enrich
Well, it's complicated and it depends on the circumstances. So in the Sullivan decision, it didn't deal with public figures at all. It was simply public officials. So in other words, someone who held elected office or had a real role in government. Over a couple of subsequent decisions, that group of people was expanded to include all sorts of public figures. So that could be someone who is, say, a billionaire or a celebrity or a university president. It could be someone, if you're a community newspaper writing about your town's affairs. It could be, say, a big real estate development company. It could be someone who is an outspoken advocate for or against abortion rights, for example. It could be someone who has kind of injected themselves into a public controversy that wouldn't necessarily be considered a public figure, but maybe is circulating a petition in your town or your city that's trying to do something controversial. And even in occasional circumstances, it can be someone who did absolutely nothing to seek out the spotlight. And the example that jumps to mind here is, for example, an air traffic controller who was on duty when there was a plane crash. And that's someone who is a private person, had never sought out fame or notoriety, but yet, because of their role in a public disaster, could end up getting scrutinized and could even end up getting defamed. And the courts have ruled over and over again that even though that subjects private people to potential reputational damage, it's really important that the public and the media be able to speak freely and investigate freely and criticize freely when matters are in the public domain. So the air traffic controller, for example, might be a private person, but it's important that people be able to investigate the causes of a plane crash. And if that means that in the course of describing the air traffic controllers role in a crash they get a couple of facts wrong by mistake, that is okay under the Supreme Court rules.
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Tonya Moseley
Can you also define for us the malice standard? Can someone just sue and win if an article is just wrong or filled with errors, like what is considered malice?
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David Enrich
So the actual malice standard, which the court established in the Sullivan decision, it's a little bit of a misnomer because it sounds like, you know, you're mean to someone or you don't like someone, and that constitutes malice. That's not the meaning in the legal sense. In the legal sense, it means that you were either lying or knew that had very good reason to know that what you were writing or publishing was false and did so anyway.
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Tonya Moseley
This case, as you have been saying, really did usher in really a new age of American journalism as we know it today. I mean, Watergate was, was one notable story. Reporters could now go after those types of stories without fear. I'm really curious about, prior to the Sullivan case, had there been lawsuits that were filed, defamation lawsuits or lawsuits about errors?
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David Enrich
Yeah, this is a pattern that had been going on for years, it hadn't been weaponized in quite so sophisticated and successful a manner. But there are famous examples of the richest of the rich. And I think Ford was one of those who famously sued the Chicago Tribune and dragged it through years of very costly litigation. And so there's been a pattern and a history in the US of using lawsuits to shut up your critics, or at least to deter your critics and make them think twice before saying anything negative about you. But it really had not become a phenomenon that threatened to shut down an entire line of really important press coverage.
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Tonya Moseley
Let's get into the current day effort to dismantle Sullivan. You write about the lawyers behind this effort. I'll just say the whole time I'm reading about them in your book. I mean, it really feels and sounds like something out of a movie. Share a little bit about how they are moving in this moment behind the scenes. Two of them in particular, Tom Clare and Libby Locke.
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David Enrich
So Tom Clare and Libby Locke had been lawyers at a major corporate law firm, Kirkland and Ellis, for several years. Tom was Libby's mentor. And in 2014, they decided that they would set out on their own to start their own law firm called Claire Locke, that would be entirely focused on defamation cases. So basically either threatening the news media and journalists with lawsuits or actually filing those lawsuits. And at the time, this was kind of a, it seemed like a strange decision for two successful lawyers who were making a ton of money at a big corporate law firm. And ultimately, because libel law at that point was not this booming business that it has now become, it was kind of this niche backwater area, in fact.
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Tonya Moseley
And can you remind me the around the year again? I'm sorry, as I'm following you.
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David Enrich
Yeah. This is 2014, so it's a year before Trump declares his candidacy, and probably a year and a half or two years before his candidacy really starts to be taken seriously by a lot of people. And so their business model was that they were going to take on corporate clients or really rich individuals who were concerned about stories that were being written about them or angry about things that had already been published. And they were going to try to either get news outlets to stop writing about their clients or to retract what they'd written or to just soften the focus or they were going to file lawsuits. And they got off to kind of a rocky start. And there were a couple of cases that they brought where they just completely fell flat on their face because they ran into the First Amendment and they ran into the Sullivan protections when they were trying to kind of bully local journalists and independent journalists into retracting things that they had written. They really started to achieve success in 2016, though. And the case, their big breakthrough case, was one where they represented a dean at the University of Virginia who had been one of the focuses of a deeply flawed article that Rolling Stone had written about an alleged rape on UVA's campus. The article ended up being. It was filled with errors. The dean had not been treated fairly, and this went to trial. And just before the election in 2016, Clarelock won the case on behalf of their client against Rolling Stone. And it made huge national headlines because this case, because the Rolling Stone article was just. It had become such a public debacle that this outcome in court was. It attracted a lot of headlines, and it vaulted Libby Locke into kind of the national headlines. She became, going forward, a regular guest on Fox News, in particular on Tucker Carlson's show, where she started not just bashing the media and claiming that the media was reckless, but also arguing that the only antidote to that was for the Supreme Court to overturn or narrow New York Times versus Sullivan. And that was kind of the moment where this issue that had been kind of lingering in the background, Trump had talked about it on the campaign trail, but he wasn't talking in very specific language, and he seemed to kind of lack a nuanced understanding of the issue. This was the moment when Libby Locke started talking about this much more in public, that this really started to enter the public consciousness.
- [15:34]
Tonya Moseley
I think, you know, there's an argument to be made that, like in the case of the Rolling Stone article, there's a lot of shoddy or questionable reporting out there. I think someone from the Heritage foundation told you that if an outlet is publishing a story that is accurate and newsworthy, then they don't have to worry about being sued. Really, the case that you're making is that that's not enough. How is that not enough? Especially in a world where we really can't agree on what is accurate or newsworthy?
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David Enrich
Well, it's not nearly enough because as human beings, journalists are flawed. You know, we make mistakes. I make mistakes. The New York Times makes mistakes. I would hazard to guess that Fresh Air has made mistakes over the years. And sometimes those mistakes are minor, and sometimes they're less minor. In my experience with journalists, and certainly based on my reporting for this book, they are overwhelmingly errors that are done in good faith. In other words, we're not lying. We're not trying to get things wrong. We do so by mistake for any number of reasons. And if we are held, if we can be dragged into court and sued for millions of dollars every time we accidentally make a mistake, two things will happen. One is that smaller news outlets will simply cease to exist because they will be sued into oblivion. Or, and sensible, economically rational individual journalists and institutions will really reign in the aggressiveness with which they cover powerful and wealthy people and institutions in this society. And that is not, first of all, that's not in the public interest. And I think journalism plays an essential role at exposing wrongdoing and holding powerful people to account. And second of all, it just simply is not consistent with the spirit of the First Amendment as it was created hundreds of years ago by the framers of the Constitution. They wanted a vigorous, independent news media to serve as a really important check on the government's power. And there's no way to do that if every time you innocently make a mistake as a journalist, you risk kind of financially dying because you were exposed to endless litigation.
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Tonya Moseley
Can you give us a like, can we kind of pull back a little bit? How often do you estimate lawyers are going after media organizations? How big is this effort?
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David Enrich
Oh, well, the effort is huge. And Claire Locke is by no means alone at this point. I mean, their successes have led to a lot of copycat efforts all over the country. And that was one of the most startling things I saw in reporting this book, was that, you know, Claire Locke has this national reputation. If you were to Google them, you would see them popping up in a million different cases and a million different situations where they end up sending threatening letters and those letters then get quoted from in an article about their client. But much more than that, this is never coming to public light. And there are it's simply impossible to calculate how many times they and other lawyers like them have threatened a news outlet and gotten that news outlet to either not write the story or water it down sufficiently that it does not irritate their client. And what I know from my own personal experience and the experience of my colleagues at the Times is that, you know, this is where we started this conversation. It's basically every time you're writing about a powerful or wealthy person in a critical way, you run a great risk of getting one of these threatening letters. And again, for major news outlets like the New York Times or the Wall Street Journal or CNN or npr, that's not that scary, right? We have a lot of experience getting these. We have really good in house lawyers or external lawyers who know how to deal with this and know that this is kind of saber rattling, often on the parts of whoever is making these threats. It's much more detrimental for local news organizations or this whole group of independent journalists that have been proliferating in recent years. And that, to me, is one of the really kind of most optimistic, nice things that we're seeing in the journalism community right now, which is all these new voices, whether they have a substack newsletter or a podcast or a blog. And it's people like that that are at especially great risk because they generally don't have the money or the wherewithal to find lawyers to represent them and to defend themselves. And so it's creates a situation where the simplest, safest, most rational thing to do is to back down and stop digging into the affairs of this really litigious person or company or organization that you're writing about. And you know, that is essentially a quiet form of censorship all over the country.
- [20:21]
Tonya Moseley
Our guest today is David Enrich, author of the new book the Fear the First Amendment and A Secret Campaign to Protect the Powerful. We'll be right back after a short break. I'm Tonya Moseley, and this is FRESH air.
- [20:36]
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Tonya Moseley
David let's talk a little bit about how the current Supreme Court sees New York Times versus Sullivan, take us to February of 2019. What did justice Clarence Thomas specifically write about it?
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David Enrich
Well, Thomas, in February 2019, took a case that was never going to be heard by the Supreme Court and decided as the Supreme Court rejected an appeal and said it would not hear the case. He took that opportunity to issue an opinion that said, in the future, we should take a better case and we should use this better case to overturn Sullivan. And his critique was from the perspective of someone who believes in constitutional originalism, which means basically that the Constitution and the Bill of Rights should be interpreted as the framers of the Constitution meant them to be interpreted. That's a tricky thing with the First Amendment, which is 45 words long. And there's not a whole lot of evidence, contemporary evidence from the time, about what the framers actually meant. But Thomas's argument was that if you look back at many, many years of English common law, there was no evidence that people in England, or the framers of the Constitution, wanted libelous speech to be protected by the First Amendment. Now, there are a bunch of problems with that argument. There are, for example, records that the framers did want that kind of speech to be protected and felt very strongly that people have the right and the ability to speak freely about their leaders without fear of being punished. But the biggest problem is that looking at the First Amendment through that narrow kind of historical lens means that you're not allowing for any change in the country or in the political or legal climate in the country over an intervening period of centuries, which I think most legal scholars would agree that that is not the right way to look at the Constitution, and it's not the right way to look at the libel law. And Robert Bork, who is a very conservative judge and kind of one of the intellectual forefathers of originalism himself, was a huge fan of Sullivan and wrote about it a lot in ways that made clear that you can take an original meaning of the First Amendment and you should still believe in Sullivan, because the Framers, what they wanted was to have an environment where the public and reporters and everyone else didn't flinch before writing or saying something critical about their government and their government leaders. You know, so as the legal climate changed and as laws changed and as the media changed, and this is according to Bork, not me, it was important to kind of update your understanding of how the First Amendment works and how it applies. And so he, for one, was a huge fan of Sullivan, wrote about it in kind of this adoring way. And so Thomas's critique of it that emerged in 2019 was, I think, a real surprise to a lot of people.
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Tonya Moseley
I just want to get an understanding of what his opinion kind of means in the context of the entire Supreme Court. Justice Neil Gorsuch has also expressed some skepticism, too. Right. What has he said?
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David Enrich
Well, so Gorsuch has attacked this from a different angle. And Thomas, to be clear, so in this 2019 opinion that he issued, he was alone. He was just speaking for himself. That kind of set off a whole new round of activism and research and advocacy throughout the conservative legal movement all over the country to try and weaken the foundations of Sullivan. Gorsuch in 2021 came along and kind of jumped on this bandwagon, and he had a different argument than Thomas had originally articulated. His argument was that basically, in an era when the Internet is awash in disinformation, in particular on social media, it's not right to preserve a constitutional standard that makes it harder for powerful people to sue people for getting things wrong. Now, if that doesn't make a whole lot of sense, that's because I don't think Gorsuch's argument makes a whole lot of sense. He was kind of doing what seemed to me to be a bit of a sleight of hand where he's equating all the disinformation on social media, which undoubtedly exists. No one disputes that, and making it sound like the reason that that exists and the reason that no one can contain it is because the Sullivan decision makes it so hard for public figures to sue media companies. And there's just a real disconnect logically there.
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Tonya Moseley
You spent quite a bit of time in the book looking at why Justice Thomas would want to overturn Sullivan potentially. And it goes back to his perceived mistreatment from the media during his confirmation hearings and all of the media onslaught essentially after the Anita Hill case. What had been his opinion before all of that, though? Because he was asked about it actually during his confirmation hearings, right?
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David Enrich
Yeah, that's right. So on the fifth day of his original confirmation hearings, there were two series of confirmation hearings, both one before Anita Hill made her allegations publicly and the other after. So on the fifth and final day of his first round of confirmation hearings, Thomas was asked what he thought of the Sullivan decision. And up until that point in his hearings, he had been doing what I think most judicial nominees are trained to do, which is basically deflect senators, questions about cases that they might have to deal with as justices. And Thomas had been doing that very artfully over the course of four prior days. And then on this fifth and final day, he's asked about Sullivan. And his answer to that question was it was probably the most direct answer he had given to any question about an existing precedent. That's my interpretation of it, having fairly recently listened to all of these hearings. And he said basically that look, as a public official, it is unpleasant being in the spotlight. And he turned around, his wife Jenny was right behind him. And he kind of looked at her and said, Jenny just said to me the other day, this is so unpleasant being in the public spotlight like this. Reporters are, you know, digging into our personal story, our professional histories. This really is not fun. And Thomas told the senators that he had responded to Ginnie by saying, this is essentially the price of the First Amendment, and it's a price worth paying because we value in this country free speech and freedom of the press. And that's what the Supreme Court was looking to protect in the Sullivan decision. And so therefore, it's a really important part of the First Amendment. And you could kind of see the wheels turning in Thomas's head at that point. And he had been thinking about it, and he gave a thoughtful and candid answer to the senator's questions. Now, this was completely lost to history. As far as I could tell. The only place that reported on his remarks at the time was, I believe it was the St. Louis Post Dispatch wrote about it. No one else wrote about it at the time. And it was quickly overshadowed because Anita Hill a few days later came forward with her allegations of his sexual harassment and misconduct. And I think the experience that Thomas had over the remainder of his confirmation battle really changed the way he thought about the media.
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Tonya Moseley
I'm just curious what he has said in those years after that. Like, how has he talked about the media?
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David Enrich
He's been vicious about the media and about how distrustful he is and everyone else should be of the media to such an extent that in his memoir in 2007, he recounts a bunch of instances in which the media purportedly mistreated him. And I went back and fact checked his assertions, and they're just not true. There's no question that he went from, you know, on the fifth day of his confirmation hearings viewing the media as maybe an imperfect and certainly unpleasant but vital part of American democracy, to thinking of it more like a cancer on democracy. And it's a really. Obviously, that's a really stark change, but it had not infiltrated his judicial opinions until this case came along in early 2019, where he, for the first time, publicly went after Sullivan, do you have.
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Tonya Moseley
Any sense of how the other justices view Sullivan? Will the court take on a case to challenge precedent?
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David Enrich
Well, look, we do not know how individual justices will vote or rule on the case. We know Thomas and Gorsuch are presumably in favor of taking on a case to overturn Sullivan. And then we know that a few other justices have over the years said things that raise the prospect that perhaps they would be interested in it. Elena Kagan wrote a law review article many years ago that questioned aspects of Sullivan. John Roberts wrote something when he was in Bush's White House that raised questions about his view of Sullivan. Alito has been quite bullish on First Amendment cases in general, has also been very closely aligned with Thomas. We don't know where Amy Coney Barrett stands. It's very unclear. But I think if I were to make a bet and my bets almost always lose, so take it with a grain of salt, my bet would be that the court does not, in the short term, take up a case that would overturn Sullivan outright, but instead that they potentially take a case that gives them the opportunity to kind of chip away at around the edges. And the way they might do that would be taking on a case filed by a public figure, not a public official. And it would look at whether the whether there is too broad a group of people who has to meet the higher standards imposed by Sullivan. So maybe they're kind of chip away around the edges at who qualifies as a public figure or under what circumstances or kind of what levels of evidence they need to present to prevail in a defamation case.
- [32:11]
Tonya Moseley
Let's take a short break. David, if you're just joining us, my guest is David Enrich, author of the new book Murder the Fear, the First Amendment and A Secret Campaign to Protect the Powerful. We'll continue our conversation after a short break. This is FRESH air.
- [32:26]
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- [32:48]
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- [33:16]
Tonya Moseley
Today I am really fascinated by the individual money engine, namely the story you tell about Peter Thiel. And just to remind people of who he is, he's the co founder of PayPal and he got involved in the Gawker case involving Hulk Hogan. And just to set this up, Hulk Hogan sued Gawker in 2012 after they published a sex tape featuring Hogan. How did Teal get involved?
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David Enrich
Yeah, I would frame it a tiny bit differently, which is not that Thiel got involved because that makes it sound a little passive, but Thiel was angry at the way Gawker was covering him and Silicon Valley more broadly and so set out several years before Hulk Hogan came around, he set out to destroy Gawker and he assembled an army of lawyers and consultants and researchers to dig into Gawker, to really every aspect of it, to look at all the articles they were publishing, to look into their finances, their employment practices, things like that, to try and find a legal strategy to destroy the website. And he came across the perfect weapon in Hulk Hogan, who as you mentioned, was the subject of a secretly recorded sex tape that Gawker published. A little snippet of. But Thiel saw in the Hulk Hogan case this perfect opportunity to kill Gawker by suing them for invading Hulk Hogan's privacy. And so he secretly, no one knew this at the time, but he secretly financed this years long legal campaign against Gawker in a Florida courtroom. And it won. Right around the time that Donald Trump was first talking about opening up the libel laws, a jury in Florida returned a verdict in favor of Hulk Hogan and against Gawker, and that very quickly ledpushed Gawker into a financial tailspin that resulted in the site being shut down.
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Tonya Moseley
Yeah, I mean, it's hard to feel sympathy for Gawker, especially as it pertains to this story, but do you think this case showed actual malice? Is that what the court found?
- [35:27]
David Enrich
Well, in this case, the actual malice wasn't the standard because this was not a defamation case, it was an invasion of privacy case. Clearly the jury was convinced that Gawker had acted irresponsibly and recklessly and maliciously in the publication of this sex tape. I actually disagree with you though that it's hard to find sympathy for Gawker. And look, Gawker existed to offend people and usually it was trying to offend rich and powerful people. And it was really good at that. And it's not the kind of journalism that I practice or that I aspire to, but I think that they played a really pioneering role in challenging authority figures that the mainstream media later caught onto. And there's no better example to me than its coverage of Peter Thiel and of Silicon Valley, which had been treated, you know, with some notable exceptions, was being treated by most of the media as like, look at the novel things. They're producing all these cool gadgets and devices and everyone was kind of oohing and ahhing about the latest greatest stuff coming out of Silicon Valley. And Gawker really existed to kind of pierce that narrative. And they were digging into Peter Thiel's finances, his hedge fund's finances, some of the kind of kooky stuff he was saying about not really believing in democracy and not believing women should have the right to vote, things like that. And they had become a real thorn in Peter Thiel's side. And I think there's an argument to be made that that is the role of journalists, or at least the role of some journalists, to try and make people like Peter Thiel uncomfortable by, by revealing what they're doing and revealing some of their secrets. And they certainly succeeded in that. But they made a very powerful enemy. And Thiel's years long campaign against Gawker, which, as I said, was very successful, it became this roadmap that other rich and powerful people could use. It showed that it was possible. If you put enough time and planning and money into a project, you could really kind of bring a fairly large news organization to its knees. And that was a message that resonated with a lot of rich and powerful people. And I ended up talking to one of the guys who masterminded this campaign for Thiel behind the scenes. And he said that following the outcome of this trial, even before Peter Thiel became publicly known as the guy who had done this, that he was fielding requests from other really rich people kind of fantasizing about which media outlets they would like to go after next. And so it's. When you look at the history of this type of litigation, there is no way to avoid the conclusion that Gawker was this really seminal, watershed moment where a lot of rich and powerful people realized that weaponized lawsuits were an ideal mechanism to punish and deter journalists and news organizations whose coverage made them uncomfortable.
- [38:27]
Tonya Moseley
David, let's take a short break. If you're just joining us, my guest is David Enrich, author of the new book, the Fear the First Amendment and A Secret Campaign to Protect the Powerful. We'll continue our conversation after a short break. This is FRESH air. You know, I want to ask you about something that we seem to be seeing right now or at least talking about right now. What do you make of what seems to be anticipatory compliance by some media companies to Trump and others with their threats to sue or even settling without taking it to court?
- [39:04]
David Enrich
Well, I think it just reflects the idea that right now it is a dangerous thing to be going up against the president in court. And Trump has shown over and over again a willingness to kind of push legal boundaries, to be vindictive and to use his power, whether that's when he's a private person or now as president, to use his power to punish his enemies. And so a couple months ago, we had ABC News, whom Trump had sued over an interview involving one of their anchors, George Stephanopoulos. He filed this lawsuit that most legal observers viewed as, if not frivolous, then lacking much merit. And it was clearly the type of speech Stephanopoulos had gotten wrong. He had said that Trump had been found liable in the E. Jean Carroll case of rape, when, in fact he'd been found liable for the lesser offense of sexual abuse. So this is a classic example of Stephanopoulos got it wrong and probably shouldn't have gotten it wrong. But there is no evidence, at least that I'm aware of or that had become public, that Stephanopoulos was lying or had acted with reckless disregard. It was also unclear the difference between sexual abuse and rape in the New York Times court system is kind of a technical matter, and there's some gray area there which I won't get into. But this was a case that abc, almost every legal observer I speak to says that ABC had an extremely good chance of prevailing. But instead of going to trial, they agreed to pay Trump $15 million to settle shortly after he had won the election. And I don't think there's any way to look at that and not see ABC and its parent company, Disney, thinking about how unpleasant it was going to be for them and potentially how bad it was going to be for their broader business to spend the next four years litigating against the sitting president of the United States.
- [40:58]
Tonya Moseley
We're only a few months into this administration, but are you seeing media companies changing their approach to editorial coverage of Trump's second administration or hand wringing about it? Yeah.
- [41:15]
David Enrich
Well, I'm certainly not seeing any evidence of people of journalists or editors or publishers at the place I work, the New York Times doing anything differently. I think there are arguably some cases at other publications where that is happening. The most obvious of those is the Washington Post on its editorial side. So not the news side, but the editorial side. You know, they refused to publish a political cartoon that was critical of people around Trump, including the Post's owner, Jeff Bezos. Bezos just fired recently the head of their editorial page, completely changing the direction of that editorial page into a direction that is much more palatable to the Trump White House. And now, again, importantly, to my knowledge, that has not affected what the Washington Post's awesome cast of reporters are doing on the news side. And nor have I heard about other news outlets where the coverage has really changed because people are concerned about offending Trump. But I think there's no question that some of the steps that Trump and his allies in the government have been taking are designed to create that fear. And, you know, there's a whole range of things they've been doing, and it's not just lawsuits and legal threats. And they are trying to assert control over who gets to cover the president closely, whether that means not allowing the AP to cover events or handpicking favorable news outlets to be part of the press pool that closely covers and travels with the president. And I think there's a lot of concern among media lawyers and publishing executives and journalists that this is just kind of a taste of what's to come. And again, we're only seven or eight weeks into this administration. And is the FBI under Kash Patel going to try use subpoenas more frequently to identify journalists, confidential sources? Are they going to try and prosecute journalists who get secret information? I don't know. But I do know that that is definitely something that people are concerned about and watching really carefully and already looking at ways to challenge that in court were to happen.
- [43:29]
Tonya Moseley
As part of your book, you spoke with a woman named Rachel Ehrenfeld who migrated from Israel to the US in the 80s, and she said to you, this thing that she loves the most about America is the First Amendment, the freedom of speech and expression. It's what makes us different than any other place in the world. And I presume you feel that way, too. It's why you wrote this book.
- [43:52]
David Enrich
Yeah, that is true. I think the First Amendment is first for a reason. And look, I'm biased. I mean, those are literally the first words I wrote in this book, that I am biased. I've been a professional journalist my entire adult life. I think the media, we get things wrong we're imperfect, we have biases. We're human. But I think by and large, the media and journalism are just an incredible force for good and a force for democracy and a force for holding powerful people and institutions to account when no one else will. And that's not possible without the First Amendment. And so it's upsetting, frankly, to hear all these stories that I came across in this book where despite the First Amendment and despite these fairly strong legal protections that we currently have, even with those protections, journalists are getting threatened and bullied and in some cases driven out of business. And that situation could become a whole lot worse if the existing legal protections are weakened. And I don't think it's a coincidence that the people who want to weaken those legal standards and are pushing to do so are the ones that often have the most to hide and the greatest interest in journalists not having the spine or the willpower to go up against them.
- [45:12]
Tonya Moseley
David Enrich, thank you so much for this important book and thank you for your time.
- [45:17]
David Enrich
It's my pleasure. Thanks so much for having me.
- [45:20]
Tonya Moseley
David Enrich is the business investigations editor at the New York Times. His new book is the Truth. Tomorrow on FRESH air, the Trump administration is taking bold steps to reshape America's education landscape with calls to dismantle the Department of Education. What does that mean for schools and students nationwide? Washington Post national education writer Laura Meckler joins us to discuss how the administration's plans could take shape. To keep up with what's on the show and get highlights of our interviews, follow us on Instagram prfreshair. FRESH air's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham. Our managing producer is Sam Brigger. Our interviews and reviews are produced and edited by Phyllis Myers, Anne Marie Baldonado, Lauren Krenzel, Teresa Madden, Monique Nazareth, Thea Chaloner, Susan Nakundi and Anna Bauman. Our digital media producer is Molly CV Nesper. Roberta Shorrock directs the show with Terry Gross. I'm Tonya Mosley.
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