← Smart Girl Dumb Questions
Loading summary
Transcript291 lines
- [00:00]
Naeem Raza
Does the First Amendment need a bodyguard? And why should a free press matter to you? This is Smart girl, dumb questions. I'm Naeh Ma Raza, and today I'm with David McCraw, Senior Vice President and lead newsroom lawyer for the New York Times. Hi, David.
- [00:11]
David McCraw
Thank you for having me.
- [00:12]
Naeem Raza
You have been at the times for 20 plus years, I think 24 years now. Are you to the First Amendment kind of what Kevin Costner was to Whitney Houston in the movie?
- [00:20]
David McCraw
I don't think of myself quite that way.
- [00:24]
Naeem Raza
Smart girl, dumb questions. But your job, I think, is like partly a Liam Neeson type character where you're dealing with kidnapped journalists. And on the other side, it's a little bit like Sam Waterston from Law and Order.
- [00:40]
David McCraw
As long as we don't get to Clint Eastwood. I have this age sensitivity, okay? The work I do has one of the consequences, that it may, in fact improve First Amendment conditions in this country. I get that. I want that. But I represent a client. I represent the New York Times. What I need to do is win cases, push back against threats for the client. These are stories that we need to do. These are things we need to cover, and I want to protect that.
- [01:07]
Naeem Raza
I think the New York Times also has a particular role in our media. And what was the Richard Nixon quote that you use in your book Truth in Our Times?
- [01:15]
David McCraw
Oh, some people like it, some people don't, but everybody reads it, so.
- [01:19]
Naeem Raza
And I should actually disclose. I was at the New York Times for a while. David and I have worked together and I always learned so much. Every time you would take a call and talk to me about a story or a interview that we were running. And it always shocked me that you had the time because there's I think, 2,000 plus journalists at the New York Times and that there is a headline in the last couple of decades, you've seen it. Kidnapped journalists, WikiLeaks, Edward Snowden, the North Korea hacks. You have been sued, not you personally, but the New York Times. Your client has sued.
- [01:50]
David McCraw
I have been sued personally.
- [01:51]
Naeem Raza
Yes, you have been sued personally, but the New York Times has been sued by Sarah Palin, Donald Trump and Justin Baldoni. You've also dealt with people when they're really pissed off, whether that's Harvey Weinstein when the big Jodi Cantor story and Megan Tuohy's story ran Muammar Gaddafi, when Lindsay Addario, a Times photojournalist, and several other journalists were captured by Libyan forces. And I think he said the Times can go itself or something.
- [02:16]
David McCraw
Didn't say it to me. I think a lot of times people want to be heard and hearing them out and standing your ground, not in a belligerent way, but making clear, this is your position. I remember once I was in court with somebody who'd filed a commercial suit, and I finally had to tell him, you know, when I talk to you, I shake my head a lot. That means I'm hearing you. That doesn't mean I'm agreeing with you. Let's get some ground rules right here. And if you. And I tell this in the book, but that one of Donald Trump's prior lawyers, when he was still doing real estate, had used to call me and complain about the stories, find out what was going on and so forth, and that Trump had threatened to sue. And we had long conversations. And then Trump told Tim o', Brien, the author of Trump Nation, that I had delayed, delayed, stretched things out so long that Trump couldn't even remember what it was that we had said about him. And he, as he said, has a great memory.
- [03:16]
Naeem Raza
Yeah. So funny that you brought this up, because I was gonna ask you. So there was a book called Trump Nation. There's an excerpt of it in the New York Times. And yeah. And Donald Trump ends up suing Tim o'. Brien.
- [03:29]
David McCraw
Sues Tim o' Brien and his book publisher.
- [03:31]
Naeem Raza
And he sues him in part because it's like the book disputes his wealth. Right. It says that his net worth is 150 to 250 million dollars. And he's like, I'm a multi billionaire. And so there is a really funny transcript of this phone call between Tim o' Brien and Donald Trump where he talks about you particularly and says your lawyer, who, by the way, was very good, the guy. And Tim O' Brien offers David McCraw. Yes, he's a great lawyer. You know why? He's got a great way, a great bedside manner. If you were a doctor, is that one of the highest compliments you've received?
- [04:06]
David McCraw
It's the most unexpected.
- [04:08]
Naeem Raza
Donald Trump recently thought a doctor looked quite like Jesus Christ. So I feel like it's a very high compliment. And from Donald Trump, you probably can't respond to that.
- [04:16]
David McCraw
I'm not going there.
- [04:17]
Naeem Raza
It won't take the bait. But yes.
- [04:19]
David McCraw
And also one of the things that I always stress is that we need to really be fair to everybody we write about, and whether that's Donald Trump or whether that's some tech billionaire. And just kind of keeping that in mind and pushing back, we'll have stories about people who have obviously Done some terrible things. That's a fact. We still have to get it right. And I think one of the privileges of working at the New York Times is that how committed everybody is to that. I know the people who write those hate emails to me don't believe that I'm here to tell you. Do we get it right every time? No. Do we try every time? You bet.
- [05:05]
Naeem Raza
Yes. And in my years at the Times, I always felt like there is this responsibility that we cover without fear or favor in every circumstance. And that's very much instilled. And I mean, even since leaving the Times, friends will still text me, email me. People here will complain, like audiences here will complain about coverage. I think it's so hard in the world where there are 150, 250plus pieces of content coming out a day. It's like people are not reading the report end to end. And so you see a headline, it pisses you off. I understand people's frustration, but it also lacks the context of what the job is and the job that's being done.
- [05:42]
David McCraw
And one of the amazing things I think is that I think of a Time story as like this. You're in the ocean. You see this piece of ice out there in the ocean, right? And is that an ice cube or is that the tip of an iceberg? And when you get pushed on the stories and we get a complaint letter, it's amazing, the iceberg of reporting that holds that up. I used to be a lawyer for TV stations. What you saw there was the ice cube. Everything they put on the air, that's it. That's what they need.
- [06:13]
Naeem Raza
TV has always been this way is what you're saying.
- [06:15]
David McCraw
Right, right, right. They're reporting while they're on the air. But we have such a commitment to getting at the reporting that needs to be done, and the story becomes a small piece of what we actually know.
- [06:29]
Naeem Raza
So this idea of the iceberg is really important. And it's important in this case right now that you have just, you know, spent weeks, I guess, in a quite a dispute with the Trump administration when earlier in July, a federal agent showed up on the doorsteps of various times reporters the administration tried to subpoena phone records of not just journalists, but also, I believe, one mother, spouses. And this is all in regards to the July 8 and July 9 reporting from the New York Times around the cuthrit Boeing aircraft that has been donated by the Qataris to the United States. And Donald Trump has retrofitted it as his new Air Force One. Okay, so the story is on July 8, the Times reports that Donald Trump is flying home on old Air Force One because new Air Force One isn't up to scratch, according to unnamed officials. And then the next day they followed up with reporting from numerous officials, again, anonymous sources, but numerous sources who say that there are security concerns around the new Air Force One, including that it might not be protected from anti ballistic air missiles. Am I saying that right or what was the missiles? Yeah. So that's the reporting on the story. And then July 10, these subpoenas are issued. Okay, so tell us what's going on. And you wrote that this should shock the conscience of every American who believes in the Constitution.
- [07:57]
David McCraw
Yeah, let me unpack that a little bit. One thing to keep in mind is that much of what we were reporting was no secret. You're obviously not a big reader of the aviation press because in the aviation press there was a lot of discussion of the plane and how it differed from all directions.
- [08:13]
Naeem Raza
Really?
- [08:14]
David McCraw
Yeah.
- [08:15]
Naeem Raza
Like in the aviation trades, like in
- [08:16]
David McCraw
Flight Daily or something, and also in more general interest publications. So this was not like breaking a big secret in many ways. And obviously we brought a lot of new stuff to that story. But let's go back to shock the conscience. The thing that was so concerning here was the Department of Justice's disregard for the rules, for the law and for the rules. Am I surprised that an administration wants to get information from reporters? The last time I did this was during the Biden administration. 21. They had a very different response when we pushed back, I have to say. But it's not uncommon for whomever is in power, whoever that person is, is going to be unhappy with the way we cover something. If they aren't, we're not doing our job. And that one of the things that when it crosses over into what they think is an illegal leak, they're going to try to find that leaker. There are rules, there's laws. And I had never seen a case where they immediately start serving subpoenas. The one story wasn't 24 hours old when we start to see FBI agents showing up on reporters doorsteps to give them subpoenas.
- [09:33]
Naeem Raza
And that matters because this should be a last resort under the law is.
- [09:37]
David McCraw
That's right. I mean, the law is a little unsettled, but certainly here in New York in the Second Circuit, which is the Federal Circuit for us is the law, is that it's a last resort. You have to exhaust. If you're the government, you have to exhaust other sources and then you come to the press. And we still have arguments to make and we're still gonna fight. That's how the system works. It's a recognition that in addition to doing whatever leak investigations the government thinks it needs to do, it has to be balanced against the value of a free press.
- [10:10]
Naeem Raza
Right.
- [10:11]
David McCraw
And part of the way you build that into the system is you have rules that make the press the last resort when you're doing these investigations, not the first.
- [10:19]
Naeem Raza
That's what the First Amendment protects.
- [10:22]
David McCraw
The First Amendment and court decisions and precedent, internal guidelines of the Department of Justice. One of the things that we push really hard in this case is that they didn't follow their own guidelines. The guidelines that are supposed to dictate how they do an investigation, they chose to ignore. And that's really not the, the posture the Department of Justice should take.
- [10:45]
Naeem Raza
Right. I mean, there's something I appreciate in your answer, David, which is that you are, as self described, raving moderate. And you're saying, okay, look, there's certain stuff that we just expect that we're gonna be in a bit of a brawl with any administration. And you have been, I mean, you've gone. And one of the things that we'll talk about later is you've dealt with the Bush administration, the Obama administration, which had some real brawls in there, the Biden administration and Trump won and obviously again, and we'll level set kind of what is expected. And, but on this particular case, this isn't the first time the administration just showed up at the doorstep of journalists. There was the Washington Post reporter who in January had, I think, six electronic devices seized during a search of her home. There was, wasn't there also some subpoenas they tried to issue in June around for the Wall Street Journal and again, I think the Washington post, that the DOJ withdrew and then they show up, you know, within 24, 48 hours of these stories coming out. So this is a pattern. Yeah, but the courts have, like, stood up in this matter. Right. Because even though, you know, in the case of Hannah, the Washington Post journalist, her electronic records have been seized, but the court has not allowed the government to kind of go through them. It's ultimately a judge who will have to go through those in this case, too. Like it ultimately goes in front of a judge. Well, on July 23rd.
- [12:11]
David McCraw
Yeah, let me draw a distinction here. That's important that a search warrant is particularly invasive because when they show up at your door, they are entitled by that warrant to come into your house and seize what falls within the scope of the Warrant. That's what happened to Hannah Nadenson at the Post. We're receiving subpoenas, we're handed a piece of paper. The FBI agent goes on about his or her business, and then we can go to court. We haven't turned over anything. We don't have to turn over anything. We just have to now object before, in this case, our reporters testify.
- [12:47]
Naeem Raza
Yeah, so sorry. I should have been cleared. So this is, yeah, compelling testimony, which is also really problematic because journalists, we have to protect our sources. We, you know, are protected in doing so.
- [12:58]
David McCraw
Yeah. One more beat on search warrants. 45 years ago, Congress passed a law strictly limiting the use of search warrants against reporters and news organizations because of how intrusive they are. Essentially, what the statute says, and I won't get into all the details, is that if you want information from a newsroom, if you want information from a reporter, you have to serve a subpoena. And this case shows why that's important. Hanna's stuff is already taken. It's already in the hands of the government. By the time lawyers get involved in our case, we're opposing those subpoenas in court and have done so successfully. I think that there was a time, or I know there's a time, I would never have thought of having to worry about a warrant. I'd never have to worry about somebody searching. In fact, people would call me in the run up between the election and the inauguration, you know, what do we do if 50 FBI agents show up at the New York Times? And the answer was always be sure to videotape, because we're gonna have an incredible civil suit against these people. It just seems so unlikely. After Nathanson, I really have to think about it now. When I first received the call that these subpoenas were about to be issued, one of the great things about working at the New York Times is people know before they show up that I had to wonder, when you say they're gonna search subpoenas, is that the right word? Yeah. And as it turned out, it was. But I did have to take a minute and think about, what if there were warrants?
- [14:34]
Naeem Raza
Yeah. So thankfully not search warrants, but these subpoenas show up, then you go to court to basically fight against the subpoenas and say, these journalists don't need to testify before a grand jury. And this is kind of an overreach by the administration. And that happens on July 23rd?
- [14:51]
David McCraw
If so, yeah. So as soon as I hear that these subpoenas are being served, I'm about to get on an airplane. So I'm gonna be doing this by email, but I contact our outside lawyers, Julie Edelste and Dave o', Neill, who immediately spring into action and do a terrific job over the next few weeks on this. But they then start engaging with DOJ about the subpoenas. Get them adjourned. So nobody has to show up. Tries to convince the DOJ to withdraw the subpoenas. When that doesn't work, we have to go ahead and make our motions to the court.
- [15:30]
Naeem Raza
Okay. And then there's like a motion to dismiss the subpoenas.
- [15:32]
David McCraw
A motion to quash.
- [15:33]
Naeem Raza
Yeah, motion to quash.
- [15:34]
David McCraw
Yep.
- [15:34]
Naeem Raza
Okay. And the judge, basically.
- [15:36]
David McCraw
You don't know how many people say, how's your squash going? I'm going squash. Squash, Ham.
- [15:40]
Naeem Raza
No. Okay. You're quashing. Well, the judge on the bench, this judge Arun Subramanian, he hears these kind of oral arguments about this motion. And then he basically says, like, you can either let the court quash it or you guys can withdraw the subpoenas.
- [15:55]
David McCraw
That's what he says to doj.
- [15:56]
Naeem Raza
Yes. Yes.
- [15:57]
David McCraw
They wanna hold him in abeyance. That's the tip.
- [16:00]
Naeem Raza
What is abeyance?
- [16:01]
David McCraw
Essentially, they wanna have the subpoena still pe.
- [16:05]
Naeem Raza
Got it.
- [16:06]
David McCraw
But not enforce them until some future
- [16:08]
Naeem Raza
date until they have a grand jury convened or something.
- [16:11]
David McCraw
I mean, this was just unacceptable to us, to have them hanging over our heads.
- [16:14]
Naeem Raza
Yeah. What is this? I mean, you wrote the serving of these subpoenas is a brazen act that amounts to keeping the public from knowing what's happening in their country by intimidating journalists out of doing their jobs. That abeyance, like that desire to hold them looming certainly suggests a certain amount of intimidation.
- [16:29]
David McCraw
It's this condor shadow from the horror movie that sort of hanging over you all the time. I don't know the motivation of anybody in the government. They don't tell me that. But when I look at the facts here, how quickly they were served, what the nature of the story was, it does seem that they were really intended to try to intimidate, to push back. And they send a message, not just to reporters, they send messages to sources. And whether it is a source that decides not to tell people important information or whether it's a reporter who decides to pass on a story, then the public is deprived. The loser. Here are people who read and watch media.
- [17:13]
Naeem Raza
I mean, some people might look at this whole story, David, and say, look, ultimately the courts, the whole system worked. The reporters reported what they knew, the government got upset, they tried to kill the story. Then they couldn't kill the story. They tried to overreact to the story. The court upheld the First Amendment and protected the journalists. So a lot of people might be listening and say, like, why should I care? It seems like the courts are kind of doing their job in these cases.
- [17:38]
David McCraw
You raise a really good point. The system did work, but we should never have been there because the system should have worked earlier. It should have been a constraint on justice.
- [17:47]
Naeem Raza
Those subpoenas should have never been served.
- [17:48]
David McCraw
Right, exactly. And you know, there's no question that if people come over to your house and spill thing on your carpet, you can clean it up. Right? You clean it up every time they come every night. And they. But you shouldn't have to do that. This is. Yeah, okay, the cleaning system works. But no, we have expectations. They're called the Department of Justice for a reason. And let's face it, the New York Times stands in a really powerful position in respect to others. In most other news organizations in this country, this kind of thing is crushing for that local paper at nonprofit news organizations trying to get by independent journalists
- [18:31]
Naeem Raza
who have, like, no legal department.
- [18:33]
David McCraw
And so it's important that we see our role as to try to back off these attempts that may work against others.
- [18:41]
Naeem Raza
Yeah, I like that analogy of the unlikely house guest who's coming over every day spilling. Also, I'm curious about this analogy. If the stain is completely gone because the doj, the Department of Justice said, make no mistake, this investigation remains ongoing in the case of these subpoenas, and said, and we will pursue justice against those threatening national security by leaking classified information, a serious federal crime. What do you hear in that statement? I should say what the Department of Justice has said. Our problem is not with the press. It's with leakers, sources, basically. I mean, what do you. How do you read that comment from me?
- [19:15]
David McCraw
Okay, two things here.
- [19:16]
Naeem Raza
Yeah.
- [19:18]
David McCraw
A million years ago, I ran for public office, for local office, right. Where in Ulster County, New York.
- [19:23]
Naeem Raza
Okay.
- [19:24]
David McCraw
And I actually beat somebody in the race. I finished fifth out of six. Oh, I was gonna say, but, you know, the day after you lose, you're talking, I'm gonna run again, I'm gonna win and so forth. And, you know, you take that kind of. I never ran again. You know, obviously DOJ took a blow. And if I'm them, I'm standing up bravely saying, that's just a speed bump. I'm continuing on my way.
- [19:47]
Naeem Raza
In modern vernacular, we call that delulu, like delusional reporting.
- [19:51]
David McCraw
But the other thing is this and this Is the more important one is that the investigation is part of a narrative of not trust the press, that the press is against national security, the press is against the best interest of the country. Totally false, but it helps convey that. And so much of what goes on, even if it doesn't work out for the administration, court still helps with that narrative of trying to sow distrust.
- [20:18]
Naeem Raza
What you're saying is really important because there is the court of law and there's a court of public opinion. And it's like in our current news cycle, these stories keep going. People you see it. One day you might forget about it. You might catch one end of it, not the other. And in the court of public opinion, who do you think won this case? Or do you think that the court of public opinion even stayed glued to it?
- [20:39]
David McCraw
You know, it's really hard to tell because we all live in silos and we have to kind of work at getting outside that silo. We have to go watch Fox, we have to go to places we don't normally go and try to understand how it's playing elsewhere. Obviously, the people who speak to me, it was 100% success. A lot of love showing. But this is one thing I will say is that I was hearing positive things from people who don't really care about these issues, who may be more progressive, more liberal, but this is not their issue. But there was something about the idea that the judge had stood up to the Department of Justice, said to the Department of Justice, you have to follow the law, you have to follow the rules, and that there was pushback. I think it also helped on these facts that this was not like a classic national security story. Wasn't about the war in Iran.
- [21:37]
Naeem Raza
Yeah, this isn't the Pentagon Papers.
- [21:39]
David McCraw
It was in the Pentagon Papers. Exactly. And so I think that people really wondered about why there would be any leak investigation at all on this particular story.
- [21:49]
Naeem Raza
Okay. I want to get into what's normal or not in the various administrations and talk about the right posture between the government and the press, if I can use those terms. But first, I feel like we need a little bit of 101 legally, as 101. And I have to prevent you from getting. I know you love the First Amendment. I know you love foia. You just can't get too nerdy.
- [22:09]
David McCraw
Okay, I've been warned.
- [22:10]
Naeem Raza
Keep it moving. Okay, so this is like the David Macross, smart girl, dumb question school for kids who can't do law good and can't do other things good too. Do you know the reference?
- [22:19]
David McCraw
No.
- [22:19]
Naeem Raza
It's the movie Zoolander.
- [22:21]
David McCraw
Oh, okay. It's been a while. You know what the worst thing is? When you said Zoolander, which is a movie my son and I really liked in the day. I thought Zootopia. And I'm going, oh, really? There's Zootopia, too. And it's about intellectual property. People should watch it.
- [22:35]
Naeem Raza
Oh, yeah, really? Oh, gosh, I didn't know that. Okay, so what does the First Amendment actually say?
- [22:40]
David McCraw
Well, the First Amendment simply says. The Congress shall make no law abridging the freedom of the press speech. And has some other clauses in there that we can skip over for the moment. And it doesn't give much guidance of any sort. But the modern interpretation and interpretation that's been with us for now at the Supreme Court for more than 100 years. Is really that there is a guarantee of the right to publish. And that includes the right not to be sanctioned after publication. Not merely the right to publish, but also to be free of government punishments of recourse.
- [23:18]
Naeem Raza
Basically a retaliation for publishing. Okay. And it's not an unlimited protection, this First Amendment.
- [23:24]
David McCraw
That's true.
- [23:25]
Naeem Raza
It's not. There is some stuff that is unfit to print, as it would say. So one of the limitations is defamation.
- [23:32]
David McCraw
Well, now we're going to get into that law nerd thing. And I'm not gonna do it.
- [23:36]
Naeem Raza
Okay.
- [23:38]
David McCraw
There are rules around when someone can bring defamation suits successfully. And that's been built up since 1964 with Times vs Sullivan. In the 1960s, Southern office holders were using libel suits going to court to try to silence the press. They were bringing suits against the New York Times and other northern media. To try to get reporters out of the south and stop talking about the abuse of civil rights. Abuse of voting rights and all the rest. And the way they were doing that was to go into local courts and win huge verdicts, huge verdict against the news organizations. State law governed libel. Until 1964, only state law. Sullivan was a local commissioner, city commissioner in Montgomery, Alabama. The New York Times published an ad. Not even a story. An ad by supporters of Martin Luther King. And that ad had some representations about the abuses that were going on in Montgomery. Police taking on student demonstrators. And Sullivan's not mentioned. But he said these. The criticism of the police defames me because I'm the police commissioner. 35 copies of the New York Times appeared in Montgomery, Alabama that day. And he won $500,000 from his fellow citizens.
- [24:56]
Naeem Raza
So Sullivan, this dude in Montgomery, Alabama, the police commissioner wins this case against the New York Times in 1960 something. And it goes all the way up over four years.
- [25:05]
David McCraw
Four years, 1964. And the Supreme Court essentially has seen enough. They're not going to allow these kind of suits be weaponized to try to silence the press. And they read the First Amendment to impose restrictions on what state law can do about libel. And that's where we get the actual malice standard. But that becomes an important way, important break against people who are going to use libel suits to bully a free press.
- [25:32]
Naeem Raza
Yeah. And then it set the standard of actual malice.
- [25:34]
David McCraw
Correct.
- [25:35]
Naeem Raza
And the actual malice standard. Let's see if I remember my training from the. All right, so let's see. So basically, it's like you either need to have known that what you're publishing was false or have a reckless disregard for what is true or false.
- [25:48]
David McCraw
Well, look who's being a law nerd. Not me. That's it.
- [25:51]
Naeem Raza
Right? That is the. That is what you.
- [25:53]
David McCraw
Yeah. So, I mean, the way I think about it is that if you are a public figure or you're a public official and you sue a news organization, that you have to essentially prove something pretty close to willful lying. It does not protect lying. People will say that all the time. Oh, Sullivan's so terrible. It protects lying. Contrary to that. It does not protect lying. That's when you lose. You lose if you lie. So if you know it's false or you entertain substantial doubt about its truthfulness, then you can lose.
- [26:23]
Naeem Raza
In addition to actual malice, though, you also have to prove that what's being said is defamatory. And you actually unexpected, became somewhat of a heartthrob, a news sensation, a viral sensation, when you wrote a letter to then Donald Trump, the candidate's lawyer, around a defamation suit. And I will ask you to read it. So basically, what this is, in fall of 2016, the New York Times has published an article entitled Two Women say Donald Trump touched them inappropriately.
- [26:54]
David McCraw
Yeah.
- [26:55]
Naeem Raza
You hear back from Mark Kasowitz, Donald Trump's lawyer, who says this is libel per se, and he asks that you remove it from the website, issue a full and immediate retraction and apology, and I'll ask you to start reading at your answer.
- [27:12]
David McCraw
We decline to do so. The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump has bragged about his non consensual sexual touching of women. He's bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host request to discuss Mr. Trump's own daughter as a Piece of ass. Multiple women not mentioned in our article of public come forward to report on Mr. Trump's unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.
- [27:44]
Naeem Raza
So what you've done in that first paragraph is basically say, you know, this isn't defamatory, because nothing that is here actually doesn't fit the characterization of things that you've said elsewhere or the way that you've presented yourself, whether it's locker room talk or grabbing women by the. Whatever. And then you go on to describe in this letter the important work that reporters do to do their diligence before reporting a story. And I love how you end it. You say, like. Like, come sue us. And that letter was, like, kind of heard around the world.
- [28:13]
David McCraw
Yeah.
- [28:13]
Naeem Raza
Did you expect that?
- [28:14]
David McCraw
I did not expect that. But it certainly was invigorating to see people from all walks of life say, thank you for doing that.
- [28:23]
Naeem Raza
There have been, if the case is dismissed, which has been the case in other defamation suits brought against the New York Times, most recently with Justin Baldoni,
- [28:31]
David McCraw
who I knew we were gonna get there.
- [28:33]
Naeem Raza
I know the Blake Lively Justin Baldoni drama. If you've been sleeping on it, I don't know what you've been doing, but it's been. They had a big fight while shooting a film whose name I can't even remember right now. Cause it was so bad.
- [28:43]
David McCraw
It ends with us.
- [28:43]
Naeem Raza
Yeah, yeah. It ends with us is the name of the film. It's so funny because I'm probably more the target audience, but you've probably had to spend more time with that film than I have. Justin Baldoni, the actor, sues the New York Times based on Megan Twohy's reporting about what Blake Lively alleges was a kind of pattern of intimidation, abuse, harassment against her on set. He sues unsuccessfully. And then you win that motion to dismiss. And this actor has to pay the New York Times legal fees, correct?
- [29:15]
David McCraw
Yeah.
- [29:16]
Naeem Raza
Because of slap. What is that?
- [29:17]
David McCraw
Yeah. So under New York law, that if a case is brought without merit, designed to silence the press, then the losing side, that is the person who brought the suit in this case has to pay our legal fees. And that's what was just decided the other day, that they, judge said that Justin Baldoni and his production studio needs to pay all the money we spent defending that suit.
- [29:44]
Naeem Raza
Is there ever a situation in which, like, upon winning a motion to dismiss, et cetera, with President Trump, Donald Trump, the individual, not the administration, that the New York Times or others would say, okay, now you should pay us back our legal fees.
- [30:02]
David McCraw
Has happened. It did happen. Donald Trump wrote us a check for $392,000.
- [30:06]
Naeem Raza
When was that?
- [30:07]
David McCraw
That was. He brings the suit in 21. It's not a libel suit. He brings a suit saying that our reporters unlawfully induced his niece Mary to
- [30:21]
Naeem Raza
provide us with essential documents.
- [30:23]
David McCraw
Judge rules in our favor. We file for all of our legal fees. Judge rules in our favor. And one day a check shows up.
- [30:31]
Naeem Raza
And he did pay on time.
- [30:32]
David McCraw
Yep.
- [30:33]
Naeem Raza
That's interesting. Okay, we're gonna go back to school. I know you're a real nerd on foia, but explain what FOIA is and. Yeah. Without putting us to sleep. Go, David.
- [30:43]
David McCraw
Whoa. The impossible assignment. Mission impossible. If you accept this.
- [30:47]
Naeem Raza
I said you were Liam Neeson.
- [30:49]
David McCraw
Here's how it works. I mean, look, the Freedom of Information act is very simple. It gives every citizen the right. Everyone the right to ask the government for information from the executive branch. And the idea was that the people have a right to see the documents. It's not a right to information, it's a right to documents. And the thing has never worked well, from the very beginning, it worked badly. That the natural instincts of bureaucrats is to keep secrets, is to not get in trouble. The court has endorsed. The courts, generally speaking, have endorsed the worst behavior by the government. And it hasn't worked out.
- [31:28]
Naeem Raza
It hasn't worked out because the cause. The courts are so willing to protect the government's slow and sleepy behavior.
- [31:35]
David McCraw
Look, a lot of people who end up in court over FOIA are not the New York Times. They are incarcerated individuals. They are the people who stand up at your city council meeting and say crazy stuff. And so there are a lot of
- [31:50]
Naeem Raza
these people are filing foia?
- [31:52]
David McCraw
Yes, of course they are.
- [31:53]
Naeem Raza
Oh, wow. I would never have thought of the. I never before becoming a journalist ever thought about filing a Freedom of Information act request.
- [31:59]
David McCraw
Yeah. So there's a whole range of people who do. And I think that the court becomes sympathetic, that, oh, these must really be a burden on these poor civil servants who are trying to do their best. But there are ways to fix the system. We're not going to go into them, but it just seems like it is something that we can all agree on, that we should have an open government.
- [32:21]
Naeem Raza
We'll take a quick break, and when we're back, David McCraw is going to give a grade to each presidential administration. You don't want to miss it, guys. Today's sponsor, Dumb Question, is from Me. I'm going to take the next minute to tell you a little bit about smart girl, dumb questions and to ask you for your help in continuing to make independent, fact based and curious journalism. No, I'm not going to ask you for money. Here's what I need. I would love you to tell 10 of your friends about the show or 100, I don't know, blast that reunion group that you muted and definitely tell your mom and tell your mom to tell her friends too. Even if you don't like the show and you're. Or just like hate watching it or listening to it. Tell 10 of your friends to hate watch it too. Numbers are numbers, people.
- [33:01]
Advertisement Voice
This episode is supported by FX's the Shards, a seductive drama from executive producer Ryan Murphy. Set in 1980s Los Angeles, the series follows a group of glamorous, deeply entangled high school seniors drawn into a life of wealth, beauty, parties and excess. At its center is Brett, whose reality begins to unravel when the arrival of a new student coincides with a series of mysterious murder. FX's the Shards premieres August 5th on FX and Hulu.
- [33:31]
Naeem Raza
It wouldn't be the David Macross School for Law or, you know, for people who don't do law good if we didn't give some grades. So I'm gonna run through the four presidents that you have seen, and I want you to tell me actually maybe three things, like the most egregious act that they took against the press and maybe how frequently they try to infringe upon the First Amendment in your estimation, and then give them a grade.
- [33:57]
David McCraw
Okay.
- [33:57]
Naeem Raza
Okay.
- [33:58]
David McCraw
All right.
- [33:58]
Naeem Raza
So George Bush. I mean, this is interesting because this is post 911 national security is, you know.
- [34:04]
David McCraw
Yeah.
- [34:05]
Naeem Raza
I mean, it's a rallying cry for the country. So George Bush administration.
- [34:09]
David McCraw
And you're gonna find I'm a very soft grader here and I'm probably not gonna be able to come up with really good grades. But the.
- [34:16]
Naeem Raza
Were you a journalism professor before you went to law school?
- [34:20]
David McCraw
Yeah. Yeah. The Bush administration begins the whole national security state, and as a result of that, there is an incredible ramp up of secrecy so we can talk about investigations that take place. And obviously the pursuit of Judy Miller and her sources was an incredible low point.
- [34:47]
Naeem Raza
And Judy Miller was a reporter who had reporting about Valerie Plame, a CIA operative who the government didn't want her to be identified. And she was held in contempt of court for a few years.
- [34:59]
David McCraw
She's held in contempt and she goes to jail rather than reveal a source. But it was part of a much broader fabric of secrecy becoming woven into government and woven into culture. The interesting thing about the Bush administration is that in that period of time, the State Department would send me abroad to talk about press freedom. And the embassies always encouraged me to talk about our fights with the Bush administration, which I thought spoke well to the administration or at least to individual diplomatic core people in the Bush administration.
- [35:36]
Naeem Raza
What's the grade?
- [35:38]
David McCraw
Governments should always get Fs because they never do enough.
- [35:42]
Naeem Raza
Well, we have to give a range here. So between A through F, what are
- [35:44]
David McCraw
you going to get? It's kind of A. Let's go with C. To use that to level. Yeah, we're gonna use that as a marker.
- [35:51]
Naeem Raza
Okay. It's their first grade. Okay. The Obama administration, they have eight Espionage act indictments, I believe, for leaks to
- [35:58]
David McCraw
the press of government employees or government consultants.
- [36:01]
Naeem Raza
Out of the press. Yeah. Not of the press.
- [36:02]
David McCraw
Leaks.
- [36:02]
Naeem Raza
Yeah, of leakers. How was the relationship with the Obama administration? What kind of grade do you wanna give them?
- [36:08]
David McCraw
They talked a good game. People would ask me, okay, what's the shift? And the shift is that we would still get denied. Our FOIA request would still get denied, but now we get longer letters explaining why we denied. And I think that the Obama administration assumed, because they were so sure of their rightness, they're so sure of being on the right side of the law, that they couldn't understand why we would be unhappy. So the prosecution of leakers, I think, was a chokehold on information, but I think there was a respect that they should not come after reporters as such. Now, it wasn't 100%, because we saw the seizing of the phone records from ap, for instance, and we saw the seizing of records from a Fox News reporter, James Rosen. But I would give them credit because in the aftermath of that, Eric Holder, the attorney General, met with all of us from the press, and they changed the rules.
- [37:15]
Naeem Raza
They changed the rules. Okay, so what do you think?
- [37:16]
David McCraw
Give them that B. Give them that B.
- [37:18]
Naeem Raza
You're gonna give them a B. Okay. Okay, great.
- [37:20]
David McCraw
Can I give a C?
- [37:20]
Naeem Raza
B for Barack Obama. C plus to Biden administration. I mean, I think the Biden administration, I'll just say from a journalistic lens, one of the challenges of the Biden administration was just access to the president. Correct. Which obviously culminated in the kind of weekend at Biden's imagery that we saw at the debate. But just having access to the president, he gave fewer press conferences. He was much more controlled in his relationship to the press than, say, our current president, whose Number is in my phone, and I'm sure in the phone of many, if not most journalists at this point. So that was, I thought, a problem for Biden, but as it relates to the law.
- [37:57]
Advertisement Voice
Yeah.
- [37:58]
Naeem Raza
How did he do?
- [37:59]
David McCraw
Well, and I think you have to break this down, I think this is where I'm struggling, is that it's as if there are various courses within our curriculum. Right?
- [38:06]
Naeem Raza
Yeah.
- [38:06]
David McCraw
I can't believe you're having me do this. There are various courses within our curriculum. Right. So somebody may be getting a good grade in math, but not such a good grade in science. So the Biden administration gets superlative marks for its handling of the writer. Reporters to keep sources anonymous, they essentially just say, we're not going to do that anymore. We are not going to pursue reporters. That was a breathtaking change in the law. We're not gonna have a balancing test. We're not gonna do it. Only exception is if you're engaged in crime, if you're an inside trader or you're doing something else, you're running a drug deal out of your newsroom, all bets are off, but that they weren't gonna do that. And it was so stunning that I'm not sure we kind of digest it. When it first happened, the run up to that was the New York Times, cnn, the Washington Post had had records subpoenaed secretly. And in our case, they had gone to Google, which provides our email service, and secretly tried to get records about four reporters. Basically what you and I would think of as metadata, but header information.
- [39:23]
Naeem Raza
But that was during the Trump administration.
- [39:25]
David McCraw
It began in the Trump administration, but it continues into the first six months of Biden. They're not backing off initially. What happens is that they've served this court order on Google to secretly provide the information. And Google, for whatever reason, decides that it's going to slow walk. They're not going to do it. They keep saying, you need to contact David McCraw, but I call up my email one evening, and there's this email from us law enforcementoogle.com with two attachments. And, yeah, I know the first rule.
- [40:06]
Naeem Raza
You should not be opening any of these.
- [40:07]
David McCraw
You should not open the attachment.
- [40:08]
Naeem Raza
I was like, wait.
- [40:08]
David McCraw
I couldn't help myself. So I click on them, and there are these two orders, one of which has my name in it, that says that Google cannot tell anybody about this court order to get this information, except for David McCraw. And so that begins the whole process. So we fight back, and at the end, the Biden administration decides, stop. We're not going to do this. And the Attorney General calls the publisher of the New York Times, A.G. sulzberger and myself, similar lineup from the Washington Post and cnn, to come to a meeting and essentially says, this shouldn't have happened.
- [40:44]
Naeem Raza
Yeah.
- [40:44]
David McCraw
Okay. And then in the aftermath, that says, we're not going after reporters for their sources anymore. So they get really high marks on that. And the thing you talked about is we could actually get back to class, is that access was deplorable.
- [40:59]
Naeem Raza
An F, I think. An F minus, honestly.
- [41:02]
David McCraw
Right.
- [41:02]
Naeem Raza
Okay.
- [41:03]
David McCraw
So overall grade, overall gain, they're going to end up down there somewhere in the high C range, I guess.
- [41:08]
Naeem Raza
High C range. Okay, great. And then now Trump.
- [41:11]
David McCraw
Well, it's not so much Trump as the administration, because I think you have to look at things broadly.
- [41:21]
Naeem Raza
Oh. For each of these. I'm talking about the administration.
- [41:22]
David McCraw
Yeah. And that it's hard to find the good news when it comes to the press in the way this administration has treated it. That's just kind of the fact of life.
- [41:34]
Naeem Raza
Access is one. I mean, Ben Smith from Semaphore and our former colleague from the New York Times said to me recently, like, the thing about Trump is he governs in public. If he's meeting with Zelensky, that's the meeting with Zelenskyy. There's not some secret meeting that happens before. I mean, there was the phone call.
- [41:48]
David McCraw
So, I mean, that's the one positive thing I was gonna bring up, is that you look. And he says to our reporter, David Sanger, you should come over to the Oval Office. I'd love to. And pretty soon we have a team of reporters going over there. They're there for four hours. It is a very, very. He is very open personally, even if some parts of his administration are not. So that's the one plus. But I think in terms of the overall environment for information, it's really never been worse.
- [42:23]
Naeem Raza
Yeah. You want to give him a grade?
- [42:26]
David McCraw
Well, you know, the course isn't over. The semester is still going on.
- [42:30]
Naeem Raza
Okay.
- [42:31]
David McCraw
Midterms, he's going to. We're going to call mom in. We're going to be doing some conversation about how to.
- [42:36]
Naeem Raza
Because he might be failing.
- [42:37]
David McCraw
He might be failing. You know, look, this is how I look at these things, is that. But imagine in your mind what the perfect information ecology would be. What would be the ecosystem, what would it look like? And it would have three components. One is that there would be reasonable access to information the public needs to know. Second, there would be an independent press. That's able to function and convey that information to the public. And third, there would be a public that was discerning. That's how democracy is supposed to look. Information's available, you have the mechanism to get it to the public and the public is thinking about it and making decisions. You see in the current environment all three of those things being attacked.
- [43:17]
Naeem Raza
Yeah. Some of those are secular changes where like the amount of misinformation, the like fragmenting the echo chambers is hurting the third of those things.
- [43:25]
David McCraw
Yeah, yeah. I mean you look at the, and I blame the government for most of this, that the chokehold on information that we need, we're not getting. When you look at that middle section, the independent press, you have to take into account both the attacks by the government on an independent press, but also the financial realities. And you have to look at AI, I would be remiss and my publisher would not be happy if I didn't bring up the threat that AI poses to independent journalism. And then you look at that.
- [43:54]
Naeem Raza
I should also say the New York Times has several ongoing cases with the LLMs, including OpenAI, Microsoft, New York Times is suing them and also suing perplexity.
- [44:03]
David McCraw
Yeah, exactly. And then you look at that discerning public and there is just a constant drumbeat to dismiss to misinformation, disinformation. It's very difficult to be a citizen today. And the pressure to not do that, democratic duty, if you will, is really, really felt. I mean there's a lot of this idea that I think people sometimes think that fake news, somebody reads it, that are conspiracy theories, somebody reads it, disinformation, somebody reads it and they believe it. And I think it's more complicated. I think that some of that goes on, but I think more than anything it encourages disengagement.
- [44:44]
Naeem Raza
There's so much going on, it's like an avalanche of bad news that people want to tune out from. But let me just like take a moment to go through some of the challenges for press freedom right now. The first, and we haven't even gotten to it, is Committee to Protect Journalists reports that hundreds of journalists have died in recent years, over 200 in Gaza alone. You were honored by the CPJ at last year's gala. You talked about refusing anticipatory obedience in an environment of threats to journalists, to journalism. A lot of people. You also noted that a lot of people think like the media sucks. 28% of people report by the last Gallup poll had trust in media. That's an all time low. Third, this president since his campaign days has actively egged on that distrust with a decade plus crusade against what he terms the fake news media. Trump has also sued the media more than any other president. He has active defamation cases against the New York Times and against the BBC. There's also settled cases the ABC and CBS capitulated and gave, I'm gonna say capitulated. They settled is I think the technical term, giving. You're doing that thing where you're nodding but you're not agreeing with me. I understand, David.
- [45:55]
David McCraw
Some of it I'm agreeing with.
- [45:57]
Naeem Raza
But they paid millions in donations to the Trump library. He also tried to sue the Wall Street Journal for their reporting on the Epstein relationship with Donald Trump. A judge dismissed that case.
- [46:09]
David McCraw
But it's back.
- [46:10]
Naeem Raza
Yeah, but it's back. Yeah, they bring it back. Trump one had these secret records of journalists. They're showing up at the doorstep. So we've talked about that. There's also corporate jawboning which we haven't even gotten to, which is this idea of like the administration is willing to swing around its regulatory appendage. And by that I don't mean Brendan Carr, but they are willing to throw their weight around on these big mergers and acquisitions and corporate deals that are happening in the media environment. And that has a chilling effect potentially as well. Jimmy Kimmel, Disney, abc, a lot happening there. And then, yeah, there's the secular issue of the business model is under threat. In particular, it has been under from social media and news feeds and now through AI. So I'm curious what you see as the greatest threat in that long list. I'm curious if I missed anything. And then I'm curious why you think, why you're still optimistic if you are.
- [47:04]
David McCraw
Yeah, I'm still optimistic. I think the greatest threat is that we need to have sustaining business models for the local press, also for the national press. But the models that worked in the past, advertising based, subscribing based, aren't working for most news organizations, working for us. And I just think that we're going to be in a very, very bad place if, especially in local communities, there isn't an independent press. So that to me is number one.
- [47:35]
Naeem Raza
So more than other stuff, more than defamation suits, more than the deadly. Do you think this is the. If the business model doesn't survive, if
- [47:42]
David McCraw
you have a decent court system and you have the news organizations that are gonna be resolute going to stand up for their rights, see the things through, then we're gonna be okay. Obviously, if the court systems get corrupt, then all bets Are off about everything. But a lot of the legal problems we're gonna get through, the financial problems are real. And Genai sucking up content and replacing independent journalism is a serious threat. So the business model is number one. The second thing I would point to is I do think the loss of faith in democratic institutions, including the press, is a serious, serious problem. If you ask people if freedom of the press is important, you're gonna get numbers up in the 70s. Different number than if you ask them. Do you trust the media? They're gonna be down below.
- [48:36]
Naeem Raza
They like a free press, just not this press is kind of what you said.
- [48:39]
David McCraw
That's the gap though. That's what you have to do is sort of wed those two ideas, you know, and part of that, you know, part of when I read this, you know, that number, I think that it's a little bit like when you ask a kid, you know, how was school today? Oh, it sucked. Well, you know, but if you actually, that's the American way. I don't like institutions. I don't like being bossed around. I don't like being told things. But if you actually look at how people operate, they do trust. When the plane crashed in Washington, the helicopter plane crash. Donald Trump issues. The White House issues a statement about the need to reform the air traffic control system. The first sight is to the New York Times. The New York Times that when he needed information, when the White House needed information about what was going on with air traffic control, they went to Kate
- [49:29]
Naeem Raza
Kelly's reporting for the New York Times.
- [49:30]
David McCraw
Exactly right. They did not exactly.
- [49:31]
Advertisement Voice
So this is.
- [49:32]
Naeem Raza
Is where I want to kind of land us. The New York Times plays a very, I think, outsized role in this environment. And it has a unique position, I think, amongst news organizations right now because it is doing well and because it isn't subject to the kind of corporate regulation that many others are. It is a publicly traded company and it's also got a dual class share structure which allows the Sulzberger family to continue to control the board. And the Sulzberger family is like the Graham family that used to own the Washington Post. A family who has, you know, a long tenure, multi generational belief in the importance of a free press. But so the Times has a unique role to play in this fight for press freedom both at home and abroad. I think also the Times was one of the first to ever extract an apology from the Israeli government when Lindsey Addario, our photojournalist colleague, was made to go through an extra seven months pregnant leaving Gaza, made to Go through an X ray machine three times and strip searched. And the IDF apologized. The Times has a tremendous amount of power and I think responsibility in the moment. And I wonder how you see it.
- [50:35]
David McCraw
Yeah. So as you point out, we have a dual class of shareholders. The company's obviously owned by shareholders, but the important decisions are still guided by the board and by the family. And that they have shown such resoluteness throughout all this that it is a company that is designed to advance the interests of free press. And I think that puts the Times in a special place. And as you know, we sued the Pentagon twice now over restrictions on press passes. We went that alone. There were a couple news organizations who wanted to join us, but overall, we couldn't find support. And our publisher, A.G. sulzberger, I think, really crystallized my thinking for me, which was essentially that there's a constitutional order and maybe we're wrong, maybe the Pentagon's right, maybe they can have these restrictions. But that's a decision that should be made by a court. That's the constitutional order. It shouldn't be by us self censoring. It shouldn't be by the Pentagon making rules that seem wrong to us. And I think that that's one of the things that we do is showing up and pushing these issues in court and in front of the public. And that, I think, is where I become sort of that. And if we go back to the bodyguard for the first time ever.
- [52:01]
Naeem Raza
Yeah.
- [52:02]
David McCraw
Kevin Costner, you can come back. We come back to that. Yes. That in those instances, we're doing both the defense of the New York Times, but also the larger principle.
- [52:12]
Naeem Raza
And in those cases, do you think of. Of the First Amendment and the law as a shield or also as a sword?
- [52:23]
David McCraw
It can operate both ways. It is the device by which we open up courtroom doors and we get court documents, but it also protects us against bullying suits that have no merit.
- [52:35]
Naeem Raza
I think the Times also plays an outsized role in Donald Trump's mind. You worked at a tabloid paper, the New York Daily News, before you were at the Times. You've probably seen Donald Trump as a character in the New York Times world for a long time. He seems kind of like, I will say, you probably can't comment. I think it's like the gray lady is like the girl that got away or like a little anxious relationship attachment to the New York Times. He seems to have a kind of obsession.
- [52:59]
David McCraw
He does care. And, you know, as he said in the first term when our publisher came down, is it too much to expect that My hometown newspaper would have one nice article about me.
- [53:11]
Naeem Raza
And what do you think? Is that too much to expect?
- [53:13]
David McCraw
I think we've had some nice articles about him.
- [53:15]
Naeem Raza
Yeah. How has he increased your personal work hours, Donald Trump?
- [53:19]
David McCraw
Oh, he's a full employment act for me.
- [53:22]
Naeem Raza
You should change to billing hourly or six minute intervals.
- [53:26]
David McCraw
Yeah, yeah. Well, but in fairness, if you go back over the. What did we decide? 24 years that have been there, the nature of how news gets conveyed has changed. Somebody said to Walt Frazier, the former NBA star, you could play with these guys today. And he goes, no, no, no. We played on the ground, they play in the air. And that's really kind of the same thing is true for the news media. How we collect information, how we analyze information, the forensic videos that get done, the way we push this out in so many different platforms, it's inevitable you're gonna have more work.
- [54:03]
Naeem Raza
Yeah, that's a very nice way to say you're not having like this Gen Z burned out culture around work. I see. Okay. I can't let you.
- [54:11]
David McCraw
Is this real?
- [54:12]
Naeem Raza
I don't think so. I mean, I think that's. I think every generation likes to complain about every other generation. I'm not sure it's real. I mean, I think it's more personality driven. Okay. I can't. Part of what's going on right now is that Donald Trump does have a $15 billion defamation suit against the New York Times. It names the Times Company, a handful of journalists, three journalists in particular, and Penguin Random House, which had published a book of a couple of those journalists entitled Lucky Loser about Donald Trump, a title I don't think he would find flattering. He alleges that the paper defamed him about his, quote, hard earned and world renowned reputation and success. It tried to undermine his 2024 campaign. He says he took particularly strong offense to a 2024 article about the making of the Apprentice, which the President alleges something to the effect of, you made it seem like Mark Burnett made me a celebrity, when in fact I was already a celebrity. This case has gone before a Florida judge who was appointed by the first President Bush, I believe. And it's gone there. It's been in and out of the media. So what's going on with this case? Tell us. It's first leveled in September 2025.
- [55:20]
David McCraw
Yeah. So the first complaint is written. I think it runs 80 pages. And the. On his own throws it out saying it's a political diatribe. I want a legal complaint. We're a court that's how we are.
- [55:34]
Naeem Raza
He said it was a complaint. A complaint is not a public forum for vituperation and invective. I never wanna play Scrabble with this guy. Okay, so he throws that out.
- [55:42]
David McCraw
So he throws it out. And then Donald Trump's lawyers file a new complaint which reads like a standard libel case that's in at 40 pages. 40 pages. Limited to 40 pages. And we moved to dismiss. And Penguin Random House moves to dismiss. Last week, there was oral argument in Tampa for why the case should be dismissed. And we have a variety of grounds. I think they're good that the complaint has to allege actual malice, didn't do so successfully, has to allege that things are statements of fact. In fact, many of the things are statements of opinion. You cited many of them about the Apprentice, was it who made whom? That's an opinion. You know, what's. This is his office a little threadbare? That's a matter of opinion. And I think all those things are gonna become clear that when you actually focus on, are they facts or are they opinions? That you'll see a lot of the suit is really about not liking our point of view. So the judge issued an order. Essentially, he says, I've listened to the motion to dismiss arguments, and I'm gonna give the President another chance to try to improve his complain, have another month to try to write a complaint that I would not be dismissed.
- [56:59]
Naeem Raza
Okay, so the judge defers, doesn't deny this motion to dismiss. President Trump goes on Truth Social, and he says this, and I'd love you to respond to it. This is Monday, the 27th, right after the judge's ruling, or the judge's deferral comes out. He frames it as victory. He says, breaking news. The failing New York Times. After 10 years of harassment, slander, and libel. His words, not mine, just failed again in their desperate attempt to have our powerful defamation lawsuit against them dropped. As we requested, the highly respected judge has called for an updated complaint which will lay out in extreme detail all the ways in which the Times has repeatedly and consistently acted with actual malice in defaming me, my family, our great MAGA movement, and America itself. We will continue to hold the Times and their comrades and the mainstream media accountable for publishing, promoting, and dealing in fake news. Thank you for your attention to this matter. Signed President Donald J. Trump.
- [57:54]
David McCraw
I think if he watched the end of the NBA Finals, he would be saying, San Antonio won. That is not what happened.
- [58:03]
Naeem Raza
Okay, so being asked by a judge to rewrite your case a third time is not winning?
- [58:08]
David McCraw
No. And the judge did not say it was inadequate. But the judge didn't say it was adequate. The judge just said, try again. And I think that it's logical that if you're asked to try again, that means your previous attempt is pretty close to the line of being dismissed.
- [58:25]
Naeem Raza
So what happens next?
- [58:27]
David McCraw
So they will, in a month, the Trump side will put in a new complaint. We will again move to dismiss. Penguin Random House will again move to dismiss. I think we have a really strong motion.
- [58:40]
Naeem Raza
Yeah. You've spoken a lot about the US Here. I would have never imagined as a Pakistani American who grew up in Indonesia and Sudan, that when we're talking about press freedom that we'd be speaking about the United States. I'm curious how you look at the US where does the US Sit in terms of international threats to press freedom?
- [59:03]
David McCraw
I know that it's popular to talk about how you see these ratings that the US Is down around Sudan or something.
- [59:11]
Naeem Raza
Yeah. This is the global press freedom rankings. And it's like Norway, I think estonia are number one and two. The US is somewhere at like 60. Right.
- [59:20]
David McCraw
And I don't buy that. I mean, look, we still have an amazing amount of press freedom. We have a lot of work to do to keep it. We're gonna do that. And you see what goes on in other countries, it's kind of baked in to their national security laws. And so we still, I think, are top tier. If you spend any time like I do, in really dealing with what it's like to report in Hong Kong, China, Gaza, across the Middle east, you understand that we have a pretty good deal,
- [59:57]
Naeem Raza
a first world problem.
- [59:58]
David McCraw
Yeah.
- [59:59]
Naeem Raza
On the U.S. front, where do you see it all coming to a head? Do you think one day the Times will show up in court with Donald Trump? Do you see another kind of landmark press freedom case like a New York Times, Sullivan? Like a Pentagon Papers case? In your 24 years, you haven't seen a Supreme Court First Amendment case for the New York Times. Do you think we will get to one?
- [60:20]
David McCraw
I don't really think that the action's going to be unliable. I think that law is going to stay fairly stable, Move a little bit to the left, a little bit to the right, but it's stable. I think the access cases that we're fighting, Pentagon being the key one, that's where the new frontier is, the weakness in law. In the US law has always been on news gathering. The Supreme Court did an amazing job over a 25 year period. 1964, 1989. To ensure the right to publish information. But they sort of balked at the idea that there should be a right to get information. And that's going to be the frontier.
- [61:02]
Naeem Raza
Okay, so that's the case that could be.
- [61:04]
David McCraw
I think all of those cases are protecting news gathering, protecting the right to record, protecting access to administration information and access to courts, all of those things. I think that's really gonna be the frontier.
- [61:16]
Naeem Raza
Wow. Okay. And we'll see if the Supreme Court hears it. Cause actually, there have been First Amendment cases that have gone to the Supreme Court. They've declined to hear them.
- [61:22]
David McCraw
Yeah. Unliable on defamation. They've had 15 or so chances to undo ties versus Sullivan. They choose not to.
- [61:30]
Naeem Raza
Yeah. Okay. David, I'm gonna let you go. Thank you so much for being so generous with your time. I think it's, you know, for me, for. I think as someone who doesn't have a legal department now that I'm out doing independent journalism.
- [61:40]
David McCraw
Those aren't lawyers out there.
- [61:42]
Naeem Raza
Yeah. I mean, I think they would do a great job, but Centeno would be a great lawyer. But I think that we're all watching what the New York Times does and what it means for everybody else that does journalism. In a time when even the term journalism is like, who's a journalist and who's not is often in the eye of the beholder. And so I think, you know, I know how important your job is and how much. How scarce your time is, especially as this president has you working overtime every night. So thank you so much for showing up and being here.
- [62:13]
David McCraw
Thank you. That was a really, really wonderful interview. At least for me. I hope it was for you very much so.
- [62:18]
Naeem Raza
I end every episode of Smart Girl. Dumb questions. Asking my guests, who are so smart about their topic what they are dumb about. What is a dumb question that you have been afraid to ask out loud?
- [62:27]
David McCraw
I have one for you.
- [62:28]
Naeem Raza
Okay.
- [62:29]
David McCraw
How did we learn how to stand in elevators? It's amazing to me that.
- [62:34]
Naeem Raza
Oh, that everyone stands.
- [62:35]
David McCraw
Everybody stands the same way. Right. Like, why don't you walk in and face each other? Why don't you have a little.
- [62:41]
Naeem Raza
But you do if you know each other, Right.
- [62:43]
David McCraw
Only then.
- [62:43]
Naeem Raza
Only then.
- [62:44]
David McCraw
And then. And when somebody gets off the elevator, there's this sort of gentle move that, you know, step, step, step. It's really like, there's no rules. It doesn't say, you know, in emergency, call this number. And standing here. Yeah.
- [62:55]
Naeem Raza
I think that actually, to test this theory, David, you should enter every elevator that you go into from now on. With a moonwalk and then turn around and face everybo. Do you think that would be weird at the Times?
- [63:05]
David McCraw
I think that there would be a complaint to hr.
- [63:07]
Naeem Raza
You know, I have to say I didn't think that the Times elevator system could get any worse. But that might be the one way that it would make it worse. The New York Times elevators are famously bad and confusing. Thank you.
- [63:16]
David McCraw
That's true.
- [63:16]
Naeem Raza
I'm going to be entering elevators a lot differently now. I'm going to try doing all kinds of things. Standing diagonally, maybe moving around in the elevator. But I so enjoyed that conversation. I really encourage people to read David's book which is called Truth in our Times. And he really, really like goes deep on a number of stories that like, will be like a nostalgia road for you through major news stories of our times and how the New York Times and David himself has, has like played a role in some of the most consequential moments of our recent history and culture and politics. That's it for this episode of Smart Girl Dumb questions. I'm your host, Naeem Raza. I enter elevators in all the wrong ways. This episode was produced with Sun Nigam and Andrea Lopez Crusado. It was engineered by Colin Lee. It was shot at Wonder Studios with Desta Wonderad and Aisha Jordan here in New York City. I'll see you next week for an all new Smart Girl Dumb question.
- [64:20]
Advertisement Voice
What if I told you you only have 12 hours to legally have sex?
- [64:24]
Naeem Raza
To finding true love or just like
- [64:26]
David McCraw
a good guy from the director of
- [64:29]
Advertisement Voice
Easy A and anyone but you.
- [64:31]
Naeem Raza
This whole thing is nuts.
- [64:33]
David McCraw
There's nothing traditional about this lane.
- [64:35]
Advertisement Voice
On August 7th, the clock starts on the summer's biggest rom com.
- [64:39]
Naeem Raza
I'm Owen.
- [64:40]
Advertisement Voice
Ally.
- [64:41]
David McCraw
What about you and me?
- [64:41]
Advertisement Voice
Monica Barbaro. Callum Turner.
- [64:43]
David McCraw
I've been told I'm a seven.
- [64:45]
Naeem Raza
By who?
- [64:45]
David McCraw
Your mother?
- [64:46]
Naeem Raza
Mom?
- [64:46]
David McCraw
No, she thinks I'm a 10.
- [64:47]
Advertisement Voice
One night only. Rated R only in theaters August 7th.
- [64:51]
Naeem Raza
I see you.
- [64:52]
Advertisement Voice
Avatar Fire and Ash is now streaming on Disney plus. It's the film critics are calling the best avatar yet. A true epic and completely jaw dropping.
- [65:03]
Naeem Raza
This is the only pure thing in this world.
- [65:06]
Advertisement Voice
Return to Pandora on Disney plus.
- [65:08]
David McCraw
It will be an adventure for the
- [65:09]
Advertisement Voice
whole fam and watch the Oscar winning fun phenomenon at home.
- [65:12]
Naeem Raza
This is sick.
- [65:16]
Advertisement Voice
Avatar, Fire and Ash now streaming on Disney Plus. Rated PG 13.