The new book Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful by The New York Times business investigations editor David Enrich chronicles an ongoing campaign by the wealthy and powerful to overturn the landmark Supreme Court decision New York Times Co. v. Sullivan, which in 1964 established bedrock protections against spurious defamation and libel cases in the U.S. legal system. By “subject[ing] people to this torturous, long-running and extremely expensive legal process,” those who can afford to pay for expensive and threatening defamation lawsuits can silence any public criticism and suppress others’ rights to free speech, says Enrich. “It has huge implications for our democracy and the ability of everyone to speak their mind.”
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.
We turn now from attacks on the right to protest to attacks on press freedom. President Trump is escalating his criticism of the news media, claiming many outlets are engaged in illegal activity. This is part of what he said last week during a speech at the Great Hall of the Department of Justice.
PRESIDENT DONALD TRUMP: I believe that CNN and MSDNC, who literally write 97.6% bad about me, are political arms of the Democrat Party. And in my opinion, they’re really corrupt, and they’re illegal. What they do is illegal. … These networks and these newspapers are really no different than a highly paid political operative. And it has to stop. It has to be illegal. It’s influencing judges, and it’s entered — it’s really changing law, and it just cannot be legal. I don’t believe it’s legal.
AMY GOODMAN: President Trump’s comments come amidst a right-wing push to overturn protections for the press to investigate public figures, a right guaranteed by the landmark 1964 Supreme Court decision New York Times v. Sullivan.
We’re joined now by David Enrich. He’s New York Times’ business investigations editor. His new book is titled Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.
If you can start off — it’s great to have you with us, David — by talking about what this Supreme Court decision, this landmark decision in the 1960s, Sullivan, was all about?
DAVID ENRICH: Well, it was brought on behalf of supporters of Martin Luther King, and it basically detailed this litany of abuses by Southern officials. The gist of it was completely true: Southern officials were trying to preserve white supremacy. Some of the facts were either wrong or exaggerated, and a powerful Southern official named L.B. Sullivan, sued The New York Times and won at trial. And the goal, basically, of Sullivan and his pals was that by filing lawsuits that seized on tiny little inaccuracies, you could punish the media for covering the civil rights movement.
And so, this went up to the Supreme Court, and the Supreme Court ruled, in a unanimous decision in 1964, that in order to preserve free speech and allow people to write and criticize and investigate powerful people and institutions, the media and the public needed breathing room so that if they got a fact wrong by mistake or made an honest error, they would not be sued into oblivion. And so, that Supreme Court ruling has really set the stage for decades of investigative journalism and for normal people, non-journalists, as well, to speak up and kind of reveal abuses and criticize people who hold positions of power, both at the national level or at a community level, as well.
AMY GOODMAN: And what does this mean for the First Amendment?
DAVID ENRICH: And it means that the First Amendment gives everyone the right to speak and to interrogate powerful people, and you do not need to worry about — there should not be a legal cloud hanging over your head when you criticize or investigate someone powerful, and you do not need to worry that an innocent mistake is going to bankrupt you because of litigation.
AMY GOODMAN: So, let’s go back to 2016, Donald Trump vowing to make it easier to sue news organizations.
DONALD TRUMP: 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, so that when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money.
AMY GOODMAN: So, that was before Donald Trump became president the first time around. Talk about the significance of what he’s saying and the overall campaign, as in your subtitle, the Secret Campaign to Protect the Powerful.
DAVID ENRICH: Well, when Donald Trump made those remarks in 2016, it kind of acted as the firing of a starter’s pistol in a race, and it sent a signal to the entire kind of conservative movement, and, in particular, the conservative legal movement, that a race was on to try to dismantle some of the long-standing First Amendment protections for the media and for others. And you can trace very directly back to that speech that he gave in Fort Worth, Texas, in February of 2016 the arrival on the scene of this kind of small cottage industry of high-priced lawyers whose entire practices were devoted to suing and threatening news outlets.
And the more successes they piled up, the more the strategy caught on, so that by the time — and within a couple of years, there was a real grassroots movement, funded and fueled by the likes of the Federalist Society, the Heritage Foundation, the Claremont Institute, to really weaponize defamation laws to make it much, much scarier, really, especially for small and independent news outlets and journalists, to write about powerful people — not just the president of the United States, but across — but in their local communities, a big company, maybe a powerful real estate developer, things like that. And this strategy has now worked its way all the way up to the Supreme Court, where there is increasing support for either doing away with New York Times v. Sullivan altogether, or at least chipping away at it around the edges.
AMY GOODMAN: So, you’re the business investigations editor at The New York Times. What led you to write this book?
DAVID ENRICH: Well, we were getting, and still do get, inundated with legal threats basically every time that we start writing about or investigating someone powerful. And it occurred to me — you know, The New York Times is in a pretty good position to handle that kind of threat, but it occurred to me a few years ago that, you know, the experience might be very different if you worked at a smaller outlet or if you were an independent journalist. And, you know, there are so many independent journalists right now, which I think is a really good thing for the media and a good thing for our democracy. But it’s people with a Substack newsletter or a blog or a podcast who are uniquely vulnerable to these types of threats and these types of litigation, because they are enormously expensive to defend against.
And they’re not always meant to — these challenges are not always meant to win in court. They’re often meant to just subject people to this torturous, long-running and extremely expensive legal process. And a lot of people make the economically rational decision, which is that in the face of those threats and in the face of that litigation, they’re going to back down rather than fight, which is exactly what the people making those threats want you to do.
AMY GOODMAN: So, talk about how Hulk Hogan or, as you point out, much more relevantly, Peter Thiel fit into this story.
DAVID ENRICH: Yeah, so, Peter Thiel had a long-running grudge against —
AMY GOODMAN: And explain who he is.
DAVID ENRICH: Yeah, Peter Thiel is one of the most powerful people in Silicon Valley. He was an early supporter of Donald Trump, and he’s very closely aligned with people like Elon Musk. And he —
AMY GOODMAN: Co-founder of PayPal.
DAVID ENRICH: Co-founder of PayPal, yes, and one of the owners of Palantir, as well. And he had a long-running grudge against the website Gawker, because Gawker was really pioneering a form of journalism that was very skeptical of Silicon Valley elites and was kind of puncturing some of the bubble surrounding them. And so he set out in the early 2010s to destroy Gawker. And he went searching. He hired a bunch of people. He put a bunch of money into this. And he eventually settled on a case involving Hulk Hogan. Gawker had published a snippet of a sex tape involving Hulk Hogan.
And so, Peter Thiel secretly financed and organized a multifaceted legal campaign using Hulk Hogan as a vehicle for retribution against Gawker. He won — Hulk Hogan won. Peter Thiel won. Gawker was destroyed. And this became a real blueprint for other billionaires and other powerful people to really attack the media. They saw that they — a well-funded, well-orchestrated, secret legal campaign — had the ability to absolutely destroy a well-established media outlet.
AMY GOODMAN: So, Gawker was destroyed. Now talk about some of the Supreme Court justices’ views. Particularly begin with Clarence Thomas.
DAVID ENRICH: Well, Clarence Thomas, during his confirmation hearings in 1991, expressed real support for New York Times v. Sullivan. He then went through a period where he got some very negative media coverage, and his views seemed to shift. And so, by 2019, Clarence Thomas became the first sitting Supreme Court justice to openly call for the overturning of New York Times v. Sullivan.
His argument originally was grounded in the 45 words of the First Amendment, which do not mention libel or defamation, and therefore should not — he argued that should not be protected under the First Amendment. Really, though, this was a part of a campaign by Thomas and his allies to really erode the powers of the media and the protections for the media and normal people to speak up when they saw abuses and to criticize people like him.
And so, he, now joined by Neil Gorsuch, as well, have really embraced this call and are trying to recruit other justices, I think, and are calling for other people to file lawsuits that might make their way up to the Supreme Court that will challenge these long-standing precedents that protect, again, not just press freedoms, but the right of a person in a community to circulate a petition, for example, or make a comment on Facebook about their mayor, things like that. So this is not just about protecting journalists. It’s really about protecting anyone who wants to stand up and have their voice heard on matters of public importance.
AMY GOODMAN: Where does Neil Gorsuch stand?
DAVID ENRICH: Gorsuch has joined Thomas in wanting to have this overturned. And his views really — and he views Sullivan as protecting all sorts of online defamatory speech. The arguments that he has made — I mean, one of the things I do in this book is really deconstruct those arguments. And it turns out, a lot of them are premised on not just kind of faulty logic, but inaccurate data that he cited, that he got from a law review article that was filled with a lot of false assumptions and kind of misinterpreted data. And so, he has actually had to correct his opinion calling for the overturning of New York Times v. Sullivan, but it is still being cited to this day by the conservative legal movement as one of the real kind of sources of information and authority that should be used to overturn it.
AMY GOODMAN: You begin your book, the prologue, “A Panicked Phone Call.” You tell the story of Guy Larson [sic]. Tell us who he — Guy Lawson — is.
DAVID ENRICH: So, Lawson is an American journalist and author who wrote a book that became the basis for the movie War Dogs, with — starring Jonah Hill. And the book basically tells the story of how these three stoners from Miami Beach become international arms traffickers. It’s kind of a rollicking, really fascinating tale. Some of the action is set in Albania. And there’s a bit part in the book played by the son of Albania’s former prime minister, who is kind of an autocratic strongman. And the details in the book, as far as I’ve been able to determine, were completely accurate. But for argument’s sake, the son of the strongman claims that he was kind of smeared in the book and that some of the facts were wrong, so he filed a lawsuit against Lawson in U.S. court, and it’s worked its way — it’s been kind of years winding its way through the legal process. It got dismissed by multiple courts. But years later, it worked its way up to the Supreme Court, and it became one of the latest vehicles to try and challenge Sullivan.
And it was seized on by people who had been inspired by Clarence Thomas, who had basically issued an open invitation to lawyers and, you know, prospective litigants, begging them to bring him a case that he could used to overturn Sullivan. It made its way up to the Supreme Court. They did not get enough votes to actually overturn Sullivan, or even hear the case, but it became another vehicle for Clarence Thomas and Neil Gorsuch to really, you know, bring this issue much more to public light and to argue forcefully that Sullivan should be overturned. And those calls, while unsuccessful — they did not get the Supreme Court to change the legal standard — they inspired hordes of lawyers, activists and other judges at lower levels across the country to really lean into this argument. And you can look at cases all over the country, and you can see that they are slowing down, they are taking longer, they’re not getting dismissed as quickly. And that creates all sorts of pain and difficulties for — especially for local and independent journalists, who now have much kind of higher odds of being dragged through expensive litigation.
AMY GOODMAN: So, you talk about — let’s look a some of the cases that President Trump is involved with right now. He sues ABC. He sues The Des Moines Register. He sues CBS. Is he trying to bring these cases to the Supreme Court? Now, of course, ABC, there was a settlement. Explain what these cases were about and what it means to settle.
DAVID ENRICH: Yeah, well, first of all, Trump is very much trying to get a case to the Supreme Court that will lead to the overturning of Sullivan. I don’t think any of those three cases you mentioned are the likely vehicles, but there are a bunch of others working their way through the federal appeals system that I think stand a much better chance.
These more recent lawsuits against ABC, CBS and The Des Moines Register are all pretty clearly efforts by Trump and his allies to weaponize the law to get — to kind of punish criticism and to deter others from speaking up and saying critical things. And they involve different legal theories. The ABC case was a straight-up defamation case. The Des Moines Register and the —
AMY GOODMAN: I mean, ABC case, where George Stephanopoulos had said President Trump —
DAVID ENRICH: Yeah.
AMY GOODMAN: — was found civilly liable for rape. Now, again —
DAVID ENRICH: Yeah.
AMY GOODMAN: — the judge in the case said, in common parlance, this case would be about rape.
DAVID ENRICH: Yeah, and even in the technical details, that he was actually found liable by the jury for sexual abuse, not rape. But so, even if you assume, for argument’s sake, that that’s an important difference and that Stephanopoulos got it wrong — and I think Stephanopoulos would say he didn’t get it wrong — but for argument’s sake, let’s say he did get it wrong. That is exactly the type of mistake that is supposed to be protected by New York Times v. Sullivan, because it is an honest, good-faith error, and you should not be held liable. ABC nonetheless decided that it was prudent to settle this case.
AMY GOODMAN: Or Disney did —
DAVID ENRICH: Well, right.
AMY GOODMAN: — which owns ABC.
DAVID ENRICH: Disney, as parent company, did. And, I mean, I think the rationale for that — and we’re seeing this play out in other settings, as well — is that these big multinational companies, that have varied interests, are trying to protect their corporate interests and do not feel like having outstanding litigation against the president of the United States is in their best interest, and so they are, pretty clearly, I think, taking the side of their profits in the long term over the First Amendment concerns that many of their journalists have. And you’re seeing a very similar dynamic playing out with CBS right now.
AMY GOODMAN: And CBS is the case of 60 Minutes.
DAVID ENRICH: Yeah.
AMY GOODMAN: And Trump is suing them for $20 billion, I think, at this point, for how they edited a Kamala Harris piece.
DAVID ENRICH: Yeah, and this is the very definition of what I think is a meritless lawsuit. And at the time the lawsuit was filed, there were some discrepancies in the way CBS kind of cut or aired parts of Kamala Harris’s interview with 60 Minutes. We now have the full, unedited transcript. We have the full, unedited recordings of those interviews. And it is plainly clear, objectively, that the interview, while edited, was not done so deceptively. There are not material differences between the different things that aired on different CBS shows. And so, the lawsuit, clearly, to me at least, and certainly all the legal observers I’ve spoken to, with the exception of people aligned with Trump, is not a strong legal argument. And yet, CBS’s parent company, which has a multibillion-dollar merger pending, that it needs —
AMY GOODMAN: Paramount.
DAVID ENRICH: Yeah — that it needs federal approval for, has started talking with the Trump side about possibly settling this. And the rationale, again, is quite clear: They are concerned, on the Paramount side, that if they do not settle this, that the Trump administration is going to essentially punish them by holding up this multibillion-dollar merger. And so, you have journalists and, I think, media executives at CBS who are apoplectic about the prospect of settling this, because, A, they are on very strong legal footing, and, B, it would set a terrible precedent that the companies are going to cave to this kind of legal extortion. But I think — we’ll see what happens.
AMY GOODMAN: How does protection of the press in the United States compare to other countries? And talk about libel tourism.
DAVID ENRICH: Yeah. So, the U.S. is — the First Amendment is a really special thing in the U.S. It’s one of the things that distinguishes America from many other democracies. So, if you look at countries like the U.K., for example, or Australia, which are, you know, very democratic — small-D democratic countries, it is much harder for journalists and others to write critical things or to investigate powerful people and institutions in those countries, because their libel laws make it much easier to sue, and that also allows you to much more easily and kind of potently threaten people.
And so, you have — in the U.K., for example, we’ve had this phenomenon, as you just said, called libel tourism, where people, rich people, like Russian oligarchs, and big companies file lawsuits against journalists from all over the world in the British court system. And that has created a real chilling effect even for American journalists, who sometimes find themselves getting sued in British courts just because you published something. It goes online. It’s accessible probably everywhere in the world. That can expose you to liability in the British court system.
Now, it’s getting a little bit harder to actually bring those suits right now, but, to me, it’s a really clear reminder of the importance of the protections we have in the U.S. It really does differentiate this country from many others. And it means we have a much more robust and aggressive media. And again, it also means that just normal people who want to circulate a petition online can do so without fear that if they get a fact wrong, they are not going to be bullied and intimidated and potentially sued because of just minor inaccuracies.
AMY GOODMAN: So, finally, after you wrote this book, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, were you more or less hopeful?
DAVID ENRICH: Oh my goodness, less hopeful. We have a real problem right now in this country. We have very strong legal protections, and yet people and companies and institutions are, on a daily basis, threatening journalists and threatening normal people, and they are getting their way a lot of the time, and that’s with our legal protections in place. And the assault on these protections is very much underway. It’s a very much alive threat, I think. And we’re seeing the White House engage in this almost on a daily basis, it seems. So I think the threat is growing, and it has huge implications for our democracy and the ability of everyone to speak their mind and criticize powerful people.
AMY GOODMAN: We’re going to talk about some of the particular cases you look at in the book after the show, and we’ll post it as a web exclusive at democracynow.org. David Enrich, New York Times business investigations editor. His new book, just out, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.