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In 1960, the New York Times published a text, under the headline “Heed Their Rising Voices,” that made some false or exaggerated claims about official repression of the burgeoning civil rights movement in Alabama. The gist of the text was true. It wasn’t a news story—or even an opinion column—written by anyone at the Times, but rather an ad seeking to raise funds for the movement. And the Times distributed only a few hundred copies a day in Alabama. Nonetheless, L.B. Sullivan, a city commissioner in Montgomery (who had, additionally, not even been named in the ad), decided to sue the paper, claiming that it had defamed him. Other officials followed suit. Their objective, as the journalist Anthony Lewis later put it, was to use libel law as “a state political weapon to intimidate the press” into shying away from covering the civil rights movement, while painting journalists as commies.
Things looked bleak for the Times, which was barely profitable at the time and faced an area of the law that often favored plaintiffs. Sure enough, a segregated Alabama courtroom ruled against the paper; the state’s highest court did likewise. But then something unexpected happened: the US Supreme Court weighed in and not only sided with the Times, but established a sweeping new precedent for libel, ruling that, henceforth, public officials who sued would have to show that they were defamed with “actual malice,” i.e., intentionally, or with “reckless disregard” for the truth. The goal, one justice wrote, was to ensure “breathing space” for robust public debate. In the years that followed, other rulings would expand the precedent from the New York Times v. Sullivan case, applying it not only to public officials but to public figures more broadly, including in some cases where plaintiffs hadn’t sought the limelight.
In 2022, David Enrich, who today leads a small team of investigative reporters at the Times, reached a realization: virtually every time his team dug into a powerful interest, it would receive a deluge of threatening legal letters in response. These days, the Times is in rude financial health, and has a crack in-house legal department, but Enrich started to wonder whether the same thing was happening to less secure news organizations and independent journalists; he made some calls and heard “many, many horror stories from all over the country about either threats or lawsuits that have pushed people and institutions to the brink,” and sometimes over it, he told me recently. He also noticed that many of the lawyers making such threats were campaigning for the Sullivan precedent to be overturned altogether. And so he decided to write a book about it all: Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful. It came out yesterday.
The book has already attracted widespread attention among journalists at a moment of heightened fears for press freedom following Donald Trump’s return to office. When Enrich started out on the path to the book, Trump was still in the political wilderness, and Enrich had no clue that its eventual publication would be “so alarmingly well-timed,” he told me. But Trump had already played a key role in the story that Enrich would tell, not only by prolifically suing journalists himself, but by arguing, during his first campaign for the presidency, that libel laws should be “opened up.” And 2016 was a pivotal year in the story in other ways. A lawsuit brought by Hulk Hogan over a sex tape bankrupted Gawker; the case was about privacy, not defamation, but it nonetheless showed the power of litigation to bring a news outlet to its knees. And Rolling Stone was found to have defamed an official at the University of Virginia when it published a story about a sexual assault that was later discredited. These suits were “not exactly the same; I think you could make a good argument that the Rolling Stone case had a lot of merit, actually,” Enrich says. But they both “catapulted these once-obscure lawyers into a national spotlight, and they then used that spotlight to take up Trump’s cry for overturning Sullivan and weakening First Amendment protections for journalists.”
Since then, two Supreme Court justices—Clarence Thomas and Neil Gorsuch—have publicly called for Sullivan to be reconsidered, and Trump and his allies have ramped up their strategy of suing the press, as a way both of cowing journalists and of sending a political message to the MAGA base. In his tightly reported book, Enrich shows how we got here. The story is not without nuance: not every plaintiff he describes is unsympathetic; not every critic of Sullivan is on the political right (and some who might like to keep the precedent in place are). In the end, though, he paints a clear picture of a right-wing crusade to weaken press protections in order to blunt scrutiny of the rich and powerful—one that is already exerting a devastating financial and emotional toll on American journalists, even as Sullivan remains the law of the land. On the eve of publication, I spoke with Enrich about his book. Our conversation has been edited for length and clarity. (And, when you’re done reading, check out the latest episode of our podcast The Kicker: an interview with the veteran media lawyer Lynn Oberlander that gets into the same themes.)
JA: You have said that the rise of Donald Trump was key in catalyzing the campaign to overturn Sullivan. To what extent is that the case, do you think? It seems to me, reading your book, that this is a story that is very much about him, but also kinda not. How should we think about that?
It’s very hard for me to disentangle this current war against the press from Donald Trump; I think that there would [still] be increasing distrust in media, and a very splintered media landscape, and politicians seeking to exploit the distrust in media and exacerbate it, but I do not think that any of this would exist on the scale it currently does were it not for Trump. I think that he seized on a moment and a feeling that many Americans had about elites being out of touch with the experiences of normal Americans. He saw the media as a really attractive proxy for those feelings and then turned that into not just rhetoric against the media—which many politicians have used, although Trump’s has been much more incendiary and borderline violent—but a policy prescription to make it easier for powerful people like him to sue the media.
One thing I personally think is a misperception is this idea that the right-wing justices on the court are totally in Trump’s pocket. When it comes to the question of Sullivan, we have these two right-wing justices—Thomas and Gorsuch—saying that it should be reexamined. To what extent should we think that, because Trump has made this an issue, the court as a whole is likely to follow suit? What are the factors that could go into this eventually getting reviewed?
If and when it does get reviewed, I don’t think it’s going to be because Trump is banging the drum; I think it’s going to be because at least four justices, maybe five, think that the existing standards are out of whack with today’s reality. While I don’t think it’s a question of the justices taking orders, I do think that they are normal human beings that exist in a media ecosystem like the rest of us—and they, like the rest of us, have the potential to be swayed by a really aggressive right-wing campaign to distort the facts on the ground about what is happening with press freedoms and the media itself. I’m terrible at doing this—my predictions always turn out wrong—but I think the most likely outcome is not that Sullivan gets overturned outright, or even that the court hears a case trying to overturn Sullivan, necessarily. The Sullivan decision applied only to public officials, and then there were a number of subsequent cases where that was broadened to include public figures and even in some cases borderline public figures who did nothing to seek the spotlight. If I were going to make a bet, I would bet that the court, at least initially, takes a look at whether there are too many people who get drawn into the Sullivan web by dint of having a minor role in a public controversy. That’s a type of initial step that could be much more politically palatable for moderate justices on the court and for the public as well. But I think it has potentially really dangerous consequences for the ability of journalists to do their job and for the public to be well-informed. If the Supreme Court makes it easier for, say, the local real estate developer to win a lawsuit against some guy with a Substack newsletter in their town, everyone is going to feel that chilling effect.
Is there the potential, if there is a review of any of these decisions, for there to be a weird alignment of justices rather than it just breaking down on predictable ideological lines? In your book you note that Justice Elena Kagan has to some extent criticized Sullivan in the past…
I’m bad at making predictions and I’m not an expert on the inner workings of the Supreme Court. Those caveats aside, I think there are potentially some strange bedfellows here. You’ve got Thomas and Gorsuch. Kagan—as a professor many years ago—wrote a piece that raised some questions about Sullivan and critiqued some of these subsequent decisions that expanded Sullivan to apply to public figures. Justice John Roberts, back when he was a White House lawyer, made some comments that at least seemed open to questioning Sullivan, if not outright critical of it. We don’t really know where Amy Coney Barrett and Brett Kavanaugh stand on this. Samuel Alito is a complicated one: he has historically been pretty quote-unquote “liberal” on First Amendment issues; that said, he has also demonstrated, especially recently, a real animosity toward the media. The bottom line is yeah, there could be some strange crosscurrents here.
I don’t want to be in a position of making a prediction. It’s not just that I don’t want to be proven wrong—it’s that it’s complicated; it depends on the circumstances of the individual case and what else is going on in the world. But for people who are following this stuff closely, there’s been a lot written over the past year or two about, Well, there’s only two justices who support overturning Sullivan. And that’s true as far as we know; at least, no one else has spoken up about it. But I think that really understates the possible risks here of a different coalition of justices—including Thomas and Gorsuch, but by no means limited to them—really taking a Weedwacker to some of these very important peripheral precedents that affect the media’s ability to aggressively write about public figures.
Mentioning the circumstances of the individual case feels like an important point: what comes across in your book really well is that, yes, there is a concerted right-wing legal movement trying to get Sullivan overturned, but at the same time not all of the plaintiffs are individually unsympathetic. I think most observers would probably agree that individuals in society should have some form of legal recourse against the media saying things that are untrue…
No one is disputing that; I’m certainly not. It’s really important for people to have recourse when they are defamed. [But] I think that there are a very, very small handful of cases that show people who are drawn into the public-figure web, whose reputations were hurt, and who lacked adequate recourse. And in each of those, I think you can make a pretty good argument that while that situation was not great at all for the person whose reputation suffered, there was a really strong public interest in allowing that kind of speech to take place without having a chilling effect where you have litigation penalizing people for speaking out. The classic example is this case [from the nineties and early two thousands] in which one of the only female fighter pilots in the US at the time sued a conservative group that had written a report that questioned whether she had received unfair double standards and that was the reason she had advanced through the military. Frankly, it destroyed this pilot’s career. But the truth is that while there were some inaccuracies and lack of context in the report, those are exactly the type of errors that are supposed to be protected by the First Amendment—because no one would dispute that it’s in the strong public interest for journalists or activists to be able to scrutinize the Pentagon’s policies.
The thing I’d emphasize is that the people citing that case and others like it to argue for overturning or narrowing Sullivan are not making that argument on behalf of clients like [the pilot]. They’re generally making that argument on behalf of people that use lawsuits and legal threats in a weaponized manner. This is not a campaign that’s trying to protect innocent people whose reputations were unfairly maligned by the media. It is much more about trying to get the media and other public critics to pull punches or to shut up altogether when powerful people’s interests are on the line.
You mention in the book, but not in a huge amount of detail, that there was this attempt in Florida to tighten libel laws—and that, in the end, it was torpedoed by right-wing media, who said, Hang on, this is gonna be really bad for us. Is there a possibility that something like that backlash could happen to any attempt to overturn Sullivan at a national level?
I think there is a wide recognition in some corners of the right—certainly among many journalists—that the Sullivan precedents are allowing them to remain in business. Fox News is the classic example of this: they have repeatedly used Sullivan to defend themselves, sometimes with success, when they have spread misinformation or disinformation or lied. So they recognize it; whether that suits their ideology is another question. The beauty of Sullivan, in my mind—and the beauty of the First Amendment more broadly—is that it protects all voices, not just those we agree with or disagree with. That’s why for a very long time there was such bipartisan unity on the importance of Sullivan. Trump has shattered that consensus to a large degree.
I think it can sometimes be tempting to see big Supreme Court precedents as like a switch—they’re there until they’re not. I think that’s how Roe v. Wade was seen by a lot of people. But perhaps we should see them more as a continuum than a binary thing. Before Roe was even overturned, abortion rights were functionally in sharp decline in numerous states; with Sullivan, as you show in the book, so many outlets are in such a vulnerable position financially that just fighting lawsuits that don’t have merit under Sullivan can be crippling. Is there a case to be made that the spirit of Sullivan has already been functionally overturned, or that we’re getting closer to that point?
I think that’s a really good way of describing it—it is a continuum, and we are already moving down it. There is no doubt that a lot of journalists all over the country are already censoring themselves in some cases—or being forced to shut down—because of these legal threats and these lawsuits. That is exactly the type of situation that Sullivan was supposed to prevent, and it’s a sign to me that even though Sullivan remains the law of the land, the weaponization of legal threats and libel lawsuits has already been chipping away pretty severely at that precedent. That is already taking a really severe toll on freedom of the press in certain parts of the country, especially as it pertains to smaller and independent journalists and news outlets.
Other notable stories:
- Trump’s on-again, off-again tariffs—and their effect on the overall economy—are continuing to drive the news cycle. Yesterday, they formed the basis of pointed questions in the White House briefing room, including from Peter Doocy, of Fox, who asked whether it might be harder for the administration to persuade federal workers to quit if their retirement accounts are getting hit; meanwhile, a reporter from the Associated Press asked Karoline Leavitt, the press secretary, whether she’d ever paid a tariff after she denied that they were a domestic tax. (“It’s insulting that you’re trying to test my knowledge of economics,” Leavitt said.) For CJR, Sacha Biazzo reports that the threat of tariffs is already hitting US publishers that import paper from Canada. (I wrote about a similar phenomenon the last time Trump was in office.)
- On Monday, Alex Jones said that Jamie White, who worked for his conspiracy site InfoWars, had been “brutally murdered” outside his apartment complex in Austin. (“I lay all of this squarely at the feet of these DAs, and of the Soros crime syndicate, and of the Democratic Party,” Jones said, blaming them for cutting police budgets and prosecuting officers. “You murdered Jamie White. You opened the door. You created the climate. You created the conditions on purpose.”) Police and White’s family have suggested that he was shot by thieves who were in the process of burglarizing his car. “I hope whoever took his life is caught and brought to justice,” White’s sister told The Independent. “My father and I are devastated, to say the least.”
- The Washington Post’s Laura Wagner profiled Anas Baba, of NPR, who is one of the few journalists for a US outlet to have continued working full-time in Gaza since Israel started bombarding the territory in the wake of October 7. In other press-freedom news, an appeals court in Guatemala ordered José Rubén Zamora, a muckraking journalist whose case has become a global cause célèbre, back to jail; he had been released to house arrest late last year. And Chad, an increasingly repressive African nation, is going after three journalists, one of whom has worked for a French public broadcaster, on suspicion of colluding with Russia’s mercenary Wagner group.
- Yesterday, I wrote in this newsletter about Romania’s recent decision to bar Călin Georgescu—a nearly unheard-of far-right candidate who unexpectedly prevailed in the first round of a presidential election last year after gaining traction on TikTok, only for the election to be annulled after officials suggested that Russia had meddled—from running in the rescheduled election in May. (Georgescu has found support on the US right.) He appealed the decision to Romania’s constitutional court, but yesterday, that body upheld the ban on his candidacy. Politico has more.
- And journalists often fret that members of the public are tuning out the news—but probably didn’t expect that they’d have to worry about the mayor of New York doing the same. Yesterday, the scandal-plagued Eric Adams told reporters that he hasn’t consumed any news in a month, relying instead on secondhand reports from staff, even as he prepares to face Andrew Cuomo in a mayoral primary. “I didn’t realize it’s almost like if you eat junk food every day, you’re going to get physical obesity,” Adams said, of his news diet. “I was going through mental obesity.… Three months from now, I’m going to read and hear all that y’all said about me. But right now, [Cuomo] can’t get under my skin, because I don’t even know what he’s saying.”
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