Latest / Question Everything / Freedom of the press is great, until you're the target

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Freedom of the press is great, until you're the target · Question Everything

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Speaker 1: Hey, hey, Brian here. Today on the show, the people
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Speaker 1: who are trying to disembowel the First Amendment. I want
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Speaker 1: to tell you a little story here about one man's
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Speaker 1: change of heart. And I'm sharing this because it's a
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Speaker 1: change of heart that is also happening writ large across
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Speaker 1: the country in the hearts of politicians and lawyers and judges.
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Speaker 1: And it presents a devastating threat to free speech, and
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Speaker 1: just the ability for any of us to question and
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Speaker 1: criticize people in power. It starts in 1964. A 25-year-old
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Speaker 1: law clerk named Alan Dershowitz showed up to his job
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Speaker 1: at the Supreme Court, where he was working for one
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Speaker 1: of the justices. This was in the thick of the
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Speaker 1: civil rights movement, and the justices were about to issue
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Speaker 1: a decision in an important case. Four years earlier, civil
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Speaker 1: rights activists had run a full-page ad in the New
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Speaker 1: York Times criticizing the way officials in southern states had
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Speaker 1: cracked down on protesters, and specifically on Martin Luther King Jr.
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Speaker 1: There were some inaccuracies and exaggerations in the ad. For instance,
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Speaker 1: it said King had been arrested seven times when it
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Speaker 1: was actually four, and that police had padlocked student protesters
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Speaker 1: inside a dining hall, which hadn't happened. And so a
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Speaker 1: city commissioner in Montgomery, Alabama named L.B. Sullivan sued the
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Speaker 1: New York Times for defamation. Now, for an article or
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Speaker 1: statement or an ad or anything else to be defamatory legally,
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Speaker 1: it has to harm your reputation and it has to
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Speaker 1: be false. A true statement can't be defamatory. Neither, by
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Speaker 1: the way, can an opinion or satire.
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Speaker 2: L.B.
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Speaker 1: Sullivan wasn't even named in the civil rights ad, but
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Speaker 1: he claimed he was being defamed simply by being an
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Speaker 1: Alabama official involved in the effort to go after protesters.
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Speaker 1: And an Alabama jury agreed with him. Sullivan won his case.
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Speaker 1: Then the New York Times appealed, and it went all
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Speaker 1: the way up to the Supreme Court. Really, what L.B.
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Speaker 1: Sullivan was doing was part of a bigger strategy.
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Speaker 3: Southern officials were trying to shut down coverage of the
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Speaker 3: civil rights movement, and it was working.
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Speaker 1: This is David Enrich, an investigative editor at the New
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Speaker 1: York Times. I learned about this change of heart story
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Speaker 1: from him. The Sullivan lawsuit scared the paper. Like, the
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Speaker 1: New York Times, it pulled its reporters out of Alabama.
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Speaker 1: and its lawyers were discouraging them from writing about institutional
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Speaker 1: racism in the South because they were getting lawsuits filed
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Speaker 1: against them. The Supreme Court justices, they looked at this
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Speaker 1: and decided it wasn't okay.
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Speaker 4: The way L.B.
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Speaker 1: Sullivan was using defamation law to shut down criticism, it
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Speaker 1: was at odds with the First Amendment. They thought it
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Speaker 1: was too easy for public officials to retaliate against people
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Speaker 1: for their speech. So the justices agreed unanimously, all nine
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Speaker 1: of them, to rule in favor of the New York Times,
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Speaker 1: and also that they should set a new, higher bar
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Speaker 1: to make it harder for guys like Sullivan to use
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Speaker 1: defamation suits as a weapon against the press. And this
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Speaker 1: meant that from then on, in order for a public
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Speaker 1: official to win a defamation case, they'd have to prove
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Speaker 1: that the person who was writing or speaking about them
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Speaker 1: was knowingly lying or just recklessly disregarding the truth. An
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Speaker 1: honest mistake in getting a fact wrong, a slight exaggeration,
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Speaker 1: a gray area, those would no longer be enough for
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Speaker 1: a public official to win a defamation suit. Not long
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Speaker 1: after this, in some other cases, the Supreme Court ended
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Speaker 1: up expanding on Sullivan to say that it didn't only
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Speaker 1: apply to public officials, but to any public figure. A
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Speaker 1: well-known CEO, a celebrity, even a regular person who found
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Speaker 1: themselves thrust into a major news story. The court's thinking
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Speaker 1: on this was that in order for the First Amendment
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Speaker 1: to truly live up to its purpose... to protect vigorous,
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Speaker 1: sometimes rough public debate about our leaders, their policies, their conduct,
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Speaker 1: the important issues of the day. Journalists and the public
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Speaker 1: need breathing room, basically, to investigate, to raise questions. And yes,
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Speaker 1: that might mean sometimes saying something that's mistakenly untrue about somebody.
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Speaker 3: Because they think it's really important for public figures to
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Speaker 3: be scrutinized and not have to worry about that if
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Speaker 3: you make an innocent mistake, if you get a fact
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Speaker 3: wrong by accident, that you're going to be sued into oblivion.
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Speaker 1: Alan Dershowitz, the law clerk, helped write the decision in
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Speaker 1: this case. The decision became known as Times v. Sullivan,
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Speaker 1: and it was issued on March 9, 1964. It ushered
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Speaker 1: in a new era of protections for journalists and anyone
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Speaker 1: in America who wants to speak critically about a public figure. Dershowitz,
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Speaker 1: as you may know, went on to have a big
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Speaker 1: career as a constitutional lawyer. He became a professor at Harvard.
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Speaker 1: He represented high-profile clients, O.J. Simpson, Jeffrey Epstein, President Trump.
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Speaker 1: And over the decades, he spoke proudly of the Times v.
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Speaker 1: Sullivan decision, even when, as he became famous himself, he
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Speaker 1: was on the receiving end of some pretty nasty speech.
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Speaker 2: You can go online and you can see that I
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Speaker 2: murdered my first wife.
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Speaker 1: This is Dershowitz speaking at an event on the 50th
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Speaker 1: anniversary of the Sullivan decision.
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Speaker 2: It's on a Holocaust denial website. My first wife died tragically,
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Speaker 2: but I did not murder her. You can also find
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Speaker 2: on the website a cartoon of me done by another
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Speaker 2: Holocaust denier in which I am sitting in front of
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Speaker 2: a television set watching the Israelis murder Palestinian children in Lebanon,
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Speaker 2: and I am masturbating in joy to watching these scenes.
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Speaker 2: And you can get those online. They're disgusting, they're despicable.
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Speaker 4: And worse.
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Speaker 2: Anybody who's a public figure can be maligned and attacked
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Speaker 2: in the worst possible way without any recourse. My children
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Speaker 2: read this stuff, my grandchildren read this stuff.
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Speaker 5: It's horrible.
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Speaker 2: That's the price of New York Times versus Sullivan, and
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Speaker 2: it's a price worth paying. Because if you think of
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Speaker 2: what the opposite would be, everybody in politics is pretty thin-skinned.
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Speaker 2: And if you started having lawsuits against everybody who was...
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Speaker 2: in any way controversial, it would really weaken the Constitution considerably.
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Speaker 2: So it's a cost worth paying. And if you don't
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Speaker 2: like the heat, stay out of the kitchen.
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Speaker 1: That was Alan Dershowitz in 2014, defending Times v. Sullivan.
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Speaker 1: Six years later, Dershowitz sued CNN, and he is now.
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Speaker 4: Filing legal motions explicitly calling.
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Speaker 1: For its overturning. He did a total 180. He no
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Speaker 1: longer believes in the standard that he helped create.
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Speaker 3: It's a remarkable and very rapid transformation of someone– by
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Speaker 3: someone who is a constitutional lawyer, had been a very
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Speaker 3: well-regarded constitutional lawyer.
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Speaker 1: Was involved in writing the decision of Sullivan.
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Speaker 4: It's bananas.
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Speaker 1: Dershowitz isn't the only one to do a 180 on
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Speaker 1: Times v. Sullivan in recent years. A number of prominent
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Speaker 1: lawyers and judges who once advocated for it have now
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Speaker 1: joined a growing campaign to take it down.
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Speaker 4: David N.
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Speaker 1: Rich wrote about this change in a new book he
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Speaker 1: has out. It's called Murder the Truth, Fear the First Amendment,
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Speaker 1: and a Secret Campaign to Protect the Powerful. For two years,
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Speaker 1: David's been investigating how in a very short amount of time,
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Speaker 1: an entire movement has sprung up and is gaining force
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Speaker 1: to get the Supreme Court to do away with Times v.
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Speaker 4: Sullivan.
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Speaker 1: Not unlike the Supreme Court did with Roe v.
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Speaker 4: Wade.
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Speaker 1: In recent years, two Supreme Court justices have even issued
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Speaker 1: opinions publicly calling for someone to bring them a case
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Speaker 1: that they can use to overturn Sullivan, to erase this
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Speaker 1: bedrock decision that has protected journalism and free speech for
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Speaker 1: more than 60 years. Today, get a load of what
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Speaker 1: Alan Dershowitz is going after CNN for. He's claiming CNN
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Speaker 1: defamed him by mischaracterizing legal arguments he made as Trump's
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Speaker 1: lawyer during the president's first impeachment trial. A pretty in-the-weeds accusation,
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Speaker 1: if you ask me, and a far cry from the
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Speaker 1: Alan Dershowitz who, just over 10 years ago, was willing
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Speaker 1: to put up with the masturbation cartoon in the name
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Speaker 1: of free speech. What happened? Why can he suddenly no
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Speaker 1: longer take the heat? I've asked Dershowitz what happened.
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Speaker 3: And he said what's happened is that the media ecosystem
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Speaker 3: has changed dramatically and now everyone can lie with impunity,
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Speaker 3: which is not true.
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Speaker 1: What does David think is really going on with Dershowitz?
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Speaker 4: He has a house on Martha's Vineyard and Martha's Vineyard
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Speaker 4: is very liberal.
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Speaker 1: Bear with me here. And there's another possible motivation which
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Speaker 1: we'll get into later. But to David, a big one
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Speaker 1: is this. Alan Dershowitz was a longtime Democrat. And once
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Speaker 1: he started defending Trump, he felt that all the negative
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Speaker 1: coverage he got led to him being canceled, basically, in
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Speaker 1: his fancy blue vacation community.
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Speaker 3: I think he feels like his stature as a well-regarded
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Speaker 3: Harvard professor who summers on the vineyard has been really
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Speaker 3: harmed by his association with Trump. And he has been
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Speaker 3: kind of excommunicated from the community.
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Speaker 4: In Martha's Vineyard.
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Speaker 3: He's very unpopular and he's complained loudly about how He
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Speaker 3: feels like his island refuge is no longer hospitable to him.
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Speaker 4: Oh, yeah.
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Speaker 1: There was like that grocery store fight with Larry David.
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Speaker 3: Yeah. And I'm not trying to be– like make a
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Speaker 3: joke about this. I think that that has really affected
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Speaker 3: his enjoyment of his life, that people on Martha's Vineyard
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Speaker 3: don't like him. And he resents the fact that he
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Speaker 3: can't represent who he wants without getting blowback from the
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Speaker 3: communities in which he lives and works.
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Speaker 1: Is what we're dealing with here basically a bunch of
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Speaker 1: thin-skinned men, mostly rich, who want to be able to
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Speaker 1: do what they want without being criticized or investigated? Is
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Speaker 1: that essentially what's happening here and they're trying to gut
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Speaker 1: the First Amendment? I think that's a slightly more benign
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Speaker 1: take than I have.
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Speaker 5: Go on.
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Speaker 4: I think that is true. Yeah.
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Speaker 3: But I also think there is something worse going on,
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Speaker 3: which is that people with a lot of money and
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Speaker 3: power recognize that a robust and independent media that's not
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Speaker 3: afraid of getting sued if they inadvertently.
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Speaker 4: Get a fact wrong, that it's a threat to them.
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Speaker 3: They've set out in a pretty deliberate, well-organized way in
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Speaker 3: the past decade or so to just make it much
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Speaker 3: harder for journalists or anyone else to level serious criticism,
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Speaker 3: to really muzzle people who would be blowing the whistle
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Speaker 3: on serious wrongdoing.
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Speaker 1: Today on Question Everything, this massive about-face that Alan Dershowitz
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Speaker 1: is just one part of, how did it happen? How
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Speaker 1: did one of the most universally respected Supreme Court cases
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Speaker 1: in history, Times v. Sullivan, end up in the crosshairs
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Speaker 1: so quickly? And how threatened is it? We actually have
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Speaker 1: two episodes about this since it's such an infuriating and
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Speaker 1: important story. This is the first. The next will drop tomorrow.
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Speaker 1: From Placement Theory and KCRW, I'm Brian Reed. Stick around.
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Speaker 1: For decades after Times v. Sullivan was decided in 1964,
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Speaker 1: it was uncontroversial. People across the political spectrum agreed that
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Speaker 1: this was a well-decided case that created crucial protections. And
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Speaker 1: David tells a story in his book to show just
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Speaker 1: how strong the support for Times v. Sullivan was until
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Speaker 1: quite recently. It's about an author who discovered a crack
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Speaker 1: in Sullivan's armor, a loophole that powerful people could exploit
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Speaker 1: to go after reporters, and the commitment with which people
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Speaker 1: came together to close it up. The author's name was
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Speaker 1: Rachel Ehrenfeld. She was an Israeli-American researcher who, after 9-11,
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Speaker 1: wrote a book detailing how terrorists get financed. Based on
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Speaker 1: her research, she pointed at a Saudi sheik who had
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Speaker 1: allegedly backed terrorists.
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Speaker 4: The Saudi sheik sued Rachel Ehrenfeld for defamation in London.
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Speaker 4: Rachel Ehrenfeld didn't live in London. She lived in New York.
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Speaker 1: The sheik didn't live in London either. But he sued
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Speaker 1: Ehrenfeld there because the U.K. doesn't have the First Amendment,
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Speaker 1: so they don't have times v. Sullivan. And so defamation
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Speaker 1: cases are notoriously much easier to win there. In the lawsuit,
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Speaker 1: the sheikh said that Ehrenfeld's book had sold 23 copies
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Speaker 1: in England, and that's why he was justified suing her there.
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Speaker 3: Ehrenfeld, I mean, she was offended. She was pissed off
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Speaker 3: because she didn't think she had written anything that was incorrect.
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Speaker 3: And to date, nothing has emerged to disprove that he
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Speaker 3: was financing terrorism.
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Speaker 4: Other than his denials.
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Speaker 3: Most people in that situation, I think, would, you know,
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Speaker 3: go to London, hire lawyers, fight the lawsuit. Ehrenfeld was
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Speaker 3: not a normal person. She felt very, very, very strongly
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Speaker 3: in the principles of the First Amendment. And she told
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Speaker 3: me that part of the reason she had moved to
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Speaker 3: the U.S.
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Speaker 4: In the first place was because she thought the First
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Speaker 4: Amendment was what made America special.
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Speaker 1: So Ehrenfeld boycotted the trial and didn't show up. The
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Speaker 1: British judge ruled that she had to pay the sheikh
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Speaker 1: more than $ 220, 000. That's outrageous, she thought. What's the point
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Speaker 1: of the First Amendment if people can get around it
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Speaker 1: this way? So she started lobbying lawmakers, first in New
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Speaker 1: York State and then in D.C.
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Speaker 4: She went national.
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Speaker 3: And she eventually got a bunch of lawmakers in Congress
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Speaker 3: to take this up for themselves. And in 2010, they
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Speaker 3: passed what became known as the Speech Act.
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Speaker 1: The Speech Act says that a defamation judgment from another
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Speaker 1: country can't be enforced in America. Basically, even if you
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Speaker 1: win a defamation suit somewhere else, you can't make the
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Speaker 1: person pay unless the country has free speech protections that
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Speaker 1: are at least as strong as what we have here
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Speaker 1: in the U.S., at least as strong as Times v.
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Speaker 4: Sullivan.
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Speaker 1: England does not have that. And so the judgment against
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Speaker 1: Rachel Ehrenfeld was rendered moot. And now every American is
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Speaker 1: protected from something similar happening to them. David tells this
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Speaker 1: story of the Speech Act because it shows just how
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Speaker 1: quickly opinion on Times v. Sullivan has splintered. When the
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Speaker 1: Speech Act passed in 2010... It passed both houses of
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Speaker 1: Congress unanimously. Not a single person objected or voted against it.
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Speaker 4: That's incredible.
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Speaker 1: Think about that. This legislation, which strengthened Times v. Sullivan
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Speaker 1: and further enshrined it into U.S. law, a law strengthening
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Speaker 1: press protections, defending journalism... getting the support of every senator,
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Speaker 1: Democrat and Republican, every representative, Democrat and Republican.
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Speaker 4: And this was in 2010, right? I mean, I knew
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Speaker 4: about the Speech Act.
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Speaker 1: I did not know it was passed unanimously in both
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Speaker 1: chambers of Congress.
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Speaker 4: That's crazy.
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Speaker 3: Yeah, and again, fairly recently. This is right around, I mean,
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Speaker 3: Obama was president. The Tea Party was in, was blossoming.
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Speaker 4: Yeah, it was a.
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Speaker 1: Fractious time still.
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Speaker 4: It was a very fractious time. And I went back
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Speaker 4: and read.
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Speaker 3: There are a bunch of different versions of the bill
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Speaker 3: that have been floating around, including some that were sponsored
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Speaker 3: primarily by conservative Republicans, were speaking very happily and lovingly
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Speaker 3: about the Sullivan decision.
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Speaker 4: But what was the gist?
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Speaker 3: The gist was that this is one of the most
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Speaker 3: cherished First Amendment cases in our country's history. The First
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Speaker 3: Amendment is what makes us great. And this is a
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Speaker 3: decision that protects everyone. And I think part of what
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Speaker 3: made this an appealing case for conservative Republicans was that
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Speaker 3: Rachel Ehrenfeld was a conservative herself. And it was framed
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Speaker 3: explicitly as protecting the right of journalists and others to
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Speaker 3: investigate the sources of terrorism financing. And one of the
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Speaker 3: lead sponsors on the bill that ultimately passed the Senate
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Speaker 3: was Jeff Sessions, who is obviously very conservative. His aide,
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Speaker 3: Stephen Miller, who is now Trump's one of his closest aides,
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Speaker 3: was working for Sessions at the time and was one
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Speaker 3: of the people who's issuing press releases about this bill
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Speaker 3: championing it.
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Speaker 4: And to me, it's just like a very powerful reminder
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Speaker 4: of you don't.
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Speaker 3: Have to look back that far to see that there
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Speaker 3: was a time when people recognized that the First Amendment
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Speaker 3: protects everyone.
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Speaker 4: It's not just the mainstream liberal media. It's everyone.
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Speaker 1: When did the cracks start to show in that support
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Speaker 1: for Times v.
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Speaker 4: Sullivan?
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Speaker 1: You know, as you started to dig into this and
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Speaker 1: figure out, like, how did this change so fast? How
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Speaker 1: do we go from this support to a really growing
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Speaker 1: movement against it, to totally overturn it?
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Speaker 3: I mean, this is going to sound just maybe a
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Speaker 3: little too obvious, but, like, Donald Trump in February of
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Speaker 3: 2016 showed up for a campaign rally in Fort Worth, Texas.
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Speaker 4: When the New York Times... He.
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Speaker 3: Launched into a tirade against the media and blurted out
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Speaker 3: for the first time that he wanted to change the
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Speaker 3: libel laws in this country.
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Speaker 2: I'm going to open up our libel laws so when
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Speaker 2: they write purposely negative and horrible and false articles, we
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Speaker 2: can sue them and win lots of money.
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Speaker 4: Kind of gesturing at the media people in the back.
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Speaker 4: We're going to open up those libel laws.
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Speaker 3: And that was the first time that I'm aware of
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Speaker 3: of a major party presidential candidate using libel laws in
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Speaker 3: a stump speech.
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Speaker 1: David says Trump coming out hot against libel laws, libel,
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Speaker 1: by the way, just means defamation that's written, coincided with
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Speaker 1: a hugely consequential media case decided the same year. It
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Speaker 1: wasn't a defamation case. It was a privacy suit. But still,
18:17
Speaker 1: it launched a new offensive against the media. It was
18:20
Speaker 1: the lawsuit the wrestler Hulk Hogan filed against Gawker. for
18:25
Speaker 1: publishing parts of a sex tape of him sleeping with
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Speaker 1: his best friend's wife. In March of 2016, Hogan won
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Speaker 1: a massive victory. The jury awarded him $ 140 million, which
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Speaker 1: put Gawker out of business. A couple months later, it
18:41
Speaker 1: emerged that Hulk Hogan had a secret supporter backing his case.
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Speaker 1: A Silicon Valley billionaire has made it his mission to
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Speaker 1: put the digital media company Gawker out of business.
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Speaker 5: The outspoken Silicon Valley investor Peter Thiel now acknowledges he
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Speaker 5: financed Hogan's lawsuit.
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Speaker 1: Billionaire Peter Thiel, one of the founders of PayPal, as
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Speaker 1: well as the intelligence company Palantir, and an early Trump donor,
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Speaker 1: had a vendetta against Gawker. They had reported about the
19:09
Speaker 1: fact that he's gay. And also, David suspects this is
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Speaker 1: possibly more impactful... Gawker was doing skeptical coverage of Thiel
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Speaker 1: and other powerful men in Silicon Valley at a time
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Speaker 1: when much of the media was enamored of them. The
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Speaker 1: Gawker case captured the imaginations of rich, powerful people unhappy
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Speaker 1: with news coverage. The idea that one man could finance
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Speaker 1: the evaporation of an entire outlet, it was inspiring. Three
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Speaker 1: days after the verdict, Donald Trump told the Washington Post
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Speaker 1: editorial board, The Hulk Hogan thing was a tremendous shock
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Speaker 1: to me. That was amazing, Trump said. And even though
19:52
Speaker 1: the Gawker suit wasn't about defamation, it inspired a surge
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Speaker 1: of new lawsuits that were. A niche corner of the
19:59
Speaker 1: legal industry popped up to handle this, and more and
20:02
Speaker 1: more money flowed into it. A small but powerful group
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Speaker 1: of attorneys started building law firms to specialize in going
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Speaker 1: after media outlets. Carter Stonerock and Claire Locke are two
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Speaker 1: prominent ones. These firms do take on valid defamation cases.
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Speaker 1: For instance, Claire Locke successfully represented an associate dean at
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Speaker 1: the University of Virginia when she sued Rolling Stone. You
20:25
Speaker 1: might remember this. The magazine published a story about rape
20:27
Speaker 1: on campus that wasn't based on solid evidence and wasn't
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Speaker 1: fact-checked properly, which made the dean look bad. She won
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Speaker 1: $ 3 million. But for every solid claim these firms and
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Speaker 1: others bring, David says there are dozens of bogus ones
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Speaker 1: just meant to bully reporters. In his book, David argues
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Speaker 1: that this has coalesced into a coordinated campaign of media harassment.
20:51
Speaker 1: It's become a very lucrative business for some of these lawyers.
20:56
Speaker 1: And it would be even more lucrative if Times v.
20:58
Speaker 1: Sullivan wasn't standing in the way. In 2017, One of
21:08
Speaker 1: these specialist lawyers, a guy named Charles Harder, made a
21:11
Speaker 1: gambit to try and get the Supreme Court to actually
21:13
Speaker 1: chip away at Sullivan. He brought the court a case
21:17
Speaker 1: that he thought was well-positioned for this. It was a
21:22
Speaker 1: sympathetic plaintiff, a woman named Catherine McKee, who in 2014
21:27
Speaker 1: said publicly that Bill Cosby had raped her 40 years earlier.
21:33
Speaker 1: Cosby's lawyer called McKee a liar. And McKee sued Cosby
21:37
Speaker 1: for defamation. Because she said she was not a liar,
21:41
Speaker 1: her account of Cosby raping her was true. But she lost,
21:46
Speaker 1: partly because of Times v. Sullivan. McKee is a longtime actress. Plus,
21:52
Speaker 1: when she decided to go public with her allegation against
21:54
Speaker 1: Bill Cosby, she became part of a big news story.
21:58
Speaker 1: That means she's considered a public figure. So Sullivan applies.
22:02
Speaker 1: And the bar for her to win a defamation suit
22:04
Speaker 1: is high. A judge in Massachusetts determined that her claim
22:09
Speaker 1: about Cosby's attorney calling her a liar didn't clear it.
22:14
Speaker 3: In this case, the lawyer had been very careful and
22:16
Speaker 3: had specifically cited evidence of her being a liar, which
22:20
Speaker 3: was that when she was a kid, she had admitted
22:23
Speaker 3: that she lied about her age and her race to
22:26
Speaker 3: get jobs as a showgirl in Las Vegas.
22:30
Speaker 1: A woman says she was raped. Her accused rapist's attorney
22:33
Speaker 1: calls her a liar. but she can't win a defamation
22:36
Speaker 1: suit against him because of Sullivan. Charles Harder, the specialist attorney,
22:42
Speaker 1: thought McKee's situation might convince the Supreme Court justices that
22:45
Speaker 1: the costs of Times v. Sullivan were too high and
22:49
Speaker 1: that it needed to be reconsidered. And while it didn't
22:51
Speaker 1: work in the way Harder had hoped, the justices declined
22:54
Speaker 1: to hear McKee's case, it still led to a crucial
22:57
Speaker 1: win for the movement to kill Sullivan.
23:00
Speaker 3: All of the justices agreed that they should not hear
23:03
Speaker 3: the case. But instead of just doing what they do
23:05
Speaker 3: in those situations, which is saying the petition is denied,
23:09
Speaker 3: they did that. And then Thomas issued his own concurring opinion.
23:13
Speaker 1: Justice Clarence Thomas used McKee's case as an opportunity to
23:17
Speaker 1: turbocharge the anti-Sullivan campaign. Thomas didn't need to write anything
23:22
Speaker 1: extra here, but he did. 14 pages saying, This was
23:27
Speaker 1: not the right case for the Supreme Court to look at,
23:30
Speaker 1: but it inviting someone else at some point in the
23:33
Speaker 1: future to bring a better case with which he could
23:35
Speaker 1: overturn New York Times v.
23:36
Speaker 4: Sullivan.
23:38
Speaker 1: And Thomas laid out an intellectual argument for why the
23:40
Speaker 1: landmark case, which in 1964 had been decided unanimously, was
23:45
Speaker 1: totally wrong. He wrote that because the idea of a
23:49
Speaker 1: public figure is not explicitly mentioned in the 45 words
23:52
Speaker 1: of the First Amendment or elsewhere in the Constitution, Times v.
23:56
Speaker 1: Sullivan's logic should be thrown out and that he was
24:00
Speaker 1: ready to do that. once someone brought him the right
24:02
Speaker 1: case to do it with. This was a huge deal.
24:06
Speaker 1: This was not even nine years after Congress had passed
24:09
Speaker 1: the Speech Act, where, remember, every single member of Congress
24:13
Speaker 1: from both parties had affirmed the importance of Times v.
24:16
Speaker 4: Sullivan.
24:17
Speaker 1: Now, the most influential conservative on the Supreme Court was
24:21
Speaker 1: suddenly broadcasting to the world, bring me a case, and
24:24
Speaker 1: let's do away with Sullivan. I think of it as
24:27
Speaker 1: like a bat signal. I remember when it happened.
24:29
Speaker 4: Yeah. A bat signal is a perfect phrase for it.
24:31
Speaker 4: It's like, come, come, come on, come on. I might
24:33
Speaker 4: borrow that.
24:33
Speaker 2: Yeah.
24:33
Speaker 4: Yeah. You can have it. Thank you.
24:35
Speaker 1: But he's just deciding to use this opportunity to put
24:39
Speaker 1: out this signal and say, bring me a case and
24:41
Speaker 1: we'll revisit Times v.
24:43
Speaker 6: Sullivan.
24:43
Speaker 4: That's like almost literally what he said.
24:45
Speaker 3: He injected himself into this at that moment because he
24:48
Speaker 3: wanted to make a big, loud public statement and encourage
24:52
Speaker 3: others to file more of these lawsuits and with the
24:55
Speaker 3: hope that they would make their way to the Supreme
24:57
Speaker 3: Court and that he and his colleagues could use that
25:01
Speaker 3: as a vehicle.
25:02
Speaker 4: To kill Sullivan.
25:04
Speaker 1: Not only was Thomas' bad signal a huge departure from
25:07
Speaker 1: the longstanding consensus, what David discovered is that for Clarence Thomas,
25:12
Speaker 1: like Alan Dershowitz, this was also a huge personal about-face
25:16
Speaker 1: on Times v. Sullivan and the very idea of what
25:19
Speaker 1: a free press should be. That story, after a quick break.
25:31
Speaker 1: As he was writing his book, David Enrich said to himself,
25:35
Speaker 1: I wonder if Clarence Thomas was asked about Times v.
25:37
Speaker 1: Sullivan during his confirmation hearings. So he went back to watch.
25:41
Speaker 4: I didn't even know this question would come up. I
25:43
Speaker 4: was really surprised.
25:45
Speaker 1: This moment has barely ever been written about. But during
25:48
Speaker 1: his confirmation hearings in 1991, Thomas did speak about Times v. Sullivan.
25:53
Speaker 1: And David says, interestingly... It was the only time in
25:56
Speaker 1: his hearings where instead of avoiding weighing in directly on
25:59
Speaker 1: a case, like Supreme Court nominees are coached to do,
26:02
Speaker 1: Thomas came out full-throated in support of it.
26:05
Speaker 6: I was telling my wife during this process, no matter
26:10
Speaker 6: how badly it turned out as far as the publicity,
26:13
Speaker 6: I think that the freedom of the press is essential
26:18
Speaker 6: to a free society.
26:20
Speaker 4: She sort of looked at.
26:21
Speaker 6: Me because we were going through the midst of it,
26:24
Speaker 6: sort of, are you out of your mind?
26:26
Speaker 1: This was while reporters had been digging into Thomas' career,
26:28
Speaker 1: his personal life. They'd traveled to his hometown in Georgia
26:32
Speaker 1: and interviewed his sister, who disclosed to them she'd once
26:34
Speaker 1: had an abortion. He and his wife, Ginny, didn't enjoy
26:38
Speaker 1: the magnifying glass.
26:41
Speaker 4: And still.
26:41
Speaker 3: He framed this as the price we pay, that you know,
26:45
Speaker 3: in Sullivan, this was what the Supreme Court was trying
26:47
Speaker 3: to protect because they think it's really important for public
26:50
Speaker 3: figures to be scrutinized.
26:52
Speaker 6: I think what the court was attempting to do there was,
26:55
Speaker 6: of course, to balance the First Amendment rights, the freedom
27:00
Speaker 6: of the press as we know it, and to not
27:05
Speaker 6: have that in a way impeded by one's abilities to
27:09
Speaker 6: sue the media or to intimidate the media. That is something,
27:14
Speaker 6: of course, that one could debate, but I think it
27:17
Speaker 6: is demonstration, a clear demonstration on the court's part, that
27:22
Speaker 6: the freedom of the press is important in our society,
27:25
Speaker 6: it's critical in our society, even though individuals may at
27:30
Speaker 6: times be hurt by.
27:34
Speaker 4: The use of that right. Do you see any need
27:37
Speaker 4: to change that standard? I.
27:40
Speaker 6: At this moment, certainly have not thought about changing that
27:44
Speaker 6: standard and have no agenda to change that standard. I
27:46
Speaker 6: think the court is, my view, as I've attempted to
27:50
Speaker 6: express here, is that we should protect our First Amendment
27:54
Speaker 6: freedoms as much as possible.
27:58
Speaker 1: Just weeks after Thomas said these words to the Senate
28:01
Speaker 1: Judiciary Committee, Anita Hill sat in front of the same
28:04
Speaker 1: 14 men. and described how Clarence Thomas had sexually harassed
28:08
Speaker 1: her for years when he was her supervisor at the
28:11
Speaker 1: Department of Education and the Equal Employment Opportunity Commission. Recounting
28:15
Speaker 1: comments she says he made to her about genitalia, pornography,
28:19
Speaker 1: sex acts, which Thomas denied. It set off a media
28:23
Speaker 1: firestorm of exponential proportions.
28:27
Speaker 3: You know, if Thomas had felt like he had been
28:29
Speaker 3: put through the ringer by the media before that point,
28:32
Speaker 3: What followed was, you know, orders of magnitude more intense.
28:36
Speaker 3: It was a searing moment for him. And there was
28:40
Speaker 3: a very real chance that he was going to get
28:42
Speaker 3: voted down by the Senate. And even when he prevailed,
28:45
Speaker 3: I think it had left just these deep, indelible.
28:49
Speaker 4: Scars on him.
28:50
Speaker 3: And the way he started talking about the media very
28:53
Speaker 3: shortly after that was as if he was talking about
28:56
Speaker 3: like a rabid animal that needed to be put down.
28:59
Speaker 4: He was just exuding... Venom? Does venom get exuded?
29:04
Speaker 3: He was exuding hatred and animosity and perceiving the media
29:09
Speaker 3: as out to get him and having kind of been
29:10
Speaker 3: on this personal mission to torment him.
29:13
Speaker 1: Where are you seeing these comments pop up?
29:15
Speaker 3: It was primarily in speeches that he gave where he
29:18
Speaker 3: would make kind of almost kind of like half-joking references
29:22
Speaker 3: to the media and like why he doesn't read newspapers
29:25
Speaker 3: and recommends it's bad for your health to read the
29:27
Speaker 3: newspapers because they're all out to get you and things
29:29
Speaker 3: like that.
29:30
Speaker 5: Justice Thomas, there is a new book out, a best-selling
29:34
Speaker 5: book written by a well-known journalist about how the media
29:37
Speaker 5: is undermining American democracy. Do you feel that the media
29:42
Speaker 5: is in fact undermining American democracy?
29:46
Speaker 6: Well, I don't read enough of it to know.
29:47
Speaker 4: Thank you.
29:56
Speaker 6: I simply don't. I try to avoid doing things that
29:59
Speaker 6: are harmful to me. And I would suggest others to
30:04
Speaker 6: do the same.
30:12
Speaker 3: It really, to me, really crystallized when I read Thomas's memoir,
30:16
Speaker 3: which was published in 2007, which in some ways is
30:19
Speaker 3: like a very inspiring personal story. On the other hand,
30:22
Speaker 3: it is littered with factual inaccuracies and possibly lies. And
30:27
Speaker 3: one of the most frequent areas in which he is
30:30
Speaker 3: twisting the truth is with his treatment of the media.
30:32
Speaker 3: And there's one example after another in the book where
30:35
Speaker 3: he recounts how the media got this wrong. The media
30:38
Speaker 3: screwed me in this way. They twisted this. They misled
30:42
Speaker 3: people on that.
30:43
Speaker 1: But still, in the speeches and the memoir, Thomas never
30:47
Speaker 1: came out against Times v. Sullivan until 2019. when 28
30:52
Speaker 1: years after Anita Hill's allegations broke, the McKee-Cosby case came
30:57
Speaker 1: before him. Another woman bringing allegations of sexual misconduct in
31:02
Speaker 1: the Cosby case rape against another powerful man. Am I
31:09
Speaker 1: right in just kind of observing, like this was very
31:12
Speaker 1: clear to me reading your reporting, that a lot of
31:15
Speaker 1: the backlash to Times v. Sullivan right now and over
31:18
Speaker 1: the recent years is driven by men who've been accused
31:21
Speaker 1: of sexual assault and the press has reported on it.
31:23
Speaker 4: So, well, let's just take stock of that. So you've
31:27
Speaker 4: got Thomas.
31:29
Speaker 1: There's also Steve Wynn, the Vegas casino magnate and Trump donor.
31:33
Speaker 1: He sued the Associated Press and one of their reporters
31:35
Speaker 1: and lost after they reported on two sexual assault complaints
31:39
Speaker 1: against him. Then he filed a petition to the Supreme
31:41
Speaker 1: Court explicitly asking that the justices use his case to
31:46
Speaker 1: overturn Sullivan. They declined. And then there's Alan Dershowitz. He
31:52
Speaker 1: was accused of sexual assault by one of Jeffrey Epstein's victims,
31:56
Speaker 1: Virginia Giuffre. They both sued each other for defamation. They
32:00
Speaker 1: both eventually dropped their suits, and Giuffre said she was
32:04
Speaker 1: possibly mistaken in naming Dershowitz. But even though he hasn't
32:08
Speaker 1: said it's connected, it was shortly after Giuffre sued him
32:11
Speaker 1: that Dershowitz changed his tune on Times v.
32:14
Speaker 4: Sullivan.
32:15
Speaker 1: Plus, there's Donald Trump himself, accused of sexual assault and
32:19
Speaker 1: who lost a defamation case about it.
32:21
Speaker 3: What was that, four, five examples? Yeah, I think that
32:24
Speaker 3: is not an unfair statement. And I mean, I think
32:27
Speaker 3: it makes a certain amount of sense if you think
32:29
Speaker 3: about it.
32:29
Speaker 4: I mean, there are.
32:30
Speaker 3: Few allegations one can face in public life that are
32:33
Speaker 3: worse than being accused of sexual assault, even when those
32:37
Speaker 3: allegations are correct and justified. And I think that someone
32:42
Speaker 3: on the receiving end of allegations like that gives you
32:44
Speaker 3: a really powerful incentive to try and muzzle the people
32:47
Speaker 3: who are making those allegations.
32:50
Speaker 1: Listen, there are a bunch of important cases that have
32:53
Speaker 1: threatened Sullivan that don't involve sexual abuse. There's one where
32:56
Speaker 1: a Liberian politician sued a nonprofit for exposing payments she
32:59
Speaker 1: took from an energy company. There's Sarah Palin's case against
33:03
Speaker 1: the New York Times, which she actually just lost this week,
33:06
Speaker 1: but she could still appeal. Palin sued the Times over
33:09
Speaker 1: an editorial that did inaccurately link her to a shooting
33:12
Speaker 1: in Arizona before the paper corrected it. Her lawyers have
33:15
Speaker 1: been angling for it to reach the Supreme Court as
33:17
Speaker 1: a Sullivan case. There's Hogan and Gawker. There's Donald Trump
33:21
Speaker 1: suing the Pulitzer Prize board over the award it gave
33:23
Speaker 1: for Russia coverage, which we talked about on this show.
33:27
Speaker 1: David covers this broad ground in his book. But reading it,
33:31
Speaker 1: this pattern of men accused of misconduct playing an outsized
33:35
Speaker 1: role in this effort that would make it much riskier
33:38
Speaker 1: for women and others to speak out, riskier than it
33:42
Speaker 1: already is, it did jump out at me. It does
33:46
Speaker 1: seem to be a motivator here and these men are
33:48
Speaker 1: so powerful and have so much money or are literally
33:51
Speaker 1: going to be the ones deciding these cases.
33:53
Speaker 2: Right.
33:53
Speaker 4: It's true.
33:55
Speaker 1: So understanding how strong that motivation might be to weaken
33:58
Speaker 1: this protection that the press has that accusers have. Look,
34:02
Speaker 1: I mean that is a through line that I think
34:06
Speaker 1: you are very right to identify in which I'm kind
34:09
Speaker 1: of embarrassed to say it had not occurred to me
34:11
Speaker 1: until I walked into the studio and started talking with you.
34:15
Speaker 1: But I agree that it's like there's no question that
34:18
Speaker 1: there is some kind of connective tissue here. They have
34:21
Speaker 1: faced accusations of sexual misconduct that have clearly kind of
34:27
Speaker 1: activated them. I think the most chilling detail in David's book,
34:39
Speaker 1: which just made me realize how kind of unbelievable it
34:42
Speaker 1: is that we have a protection as strong as Sullivan.
34:45
Speaker 1: that we got it, and how if we give even
34:48
Speaker 1: an iota of it up, I don't think we'll ever
34:50
Speaker 1: get it back. It was something a researcher uncovered about
34:53
Speaker 1: the judge in Alabama who, before it ever got to
34:56
Speaker 1: the Supreme Court, first heard the Times v. Sullivan case.
35:00
Speaker 1: This is the judge who oversaw the decision in favor
35:03
Speaker 1: of L.B. Sullivan, the Montgomery official, and against the New
35:06
Speaker 1: York Times for running the ad about civil rights. That
35:09
Speaker 1: judge maintained segregated seating in his courtroom and believed in
35:14
Speaker 1: This is his quote, white man's justice. He was also
35:19
Speaker 1: a pedophile who'd been arrested for molesting a boy. The
35:23
Speaker 1: judge's study was adorned with photos of nude boys. And
35:27
Speaker 1: according to this researcher, his courtroom gavel was inlaid with
35:32
Speaker 1: small photos of a boy. We're in a tough position
35:39
Speaker 1: because we need the people in power to preserve our
35:42
Speaker 1: right to criticize them. to investigate them. But who wants
35:47
Speaker 1: to give us that right if they have something serious
35:50
Speaker 1: to hide? Tomorrow, we have part two of our series
36:03
Speaker 1: on this campaign to blast away protections for journalists in America.
36:07
Speaker 1: Or if you're listening to this episode later, part two
36:08
Speaker 1: is available in your feed right now. All of David's
36:12
Speaker 1: reporting about This movement to get the Supreme Court to
36:15
Speaker 1: do away with Times v. Sullivan, it absolutely freaked me out.
36:18
Speaker 1: But he uncovered something else in his years of investigation that,
36:22
Speaker 1: I don't know, might be even more frightening. A coordinated
36:27
Speaker 1: wave of press suppression, often of independent, small-time local reporters
36:32
Speaker 1: doing really, really good work, that has already made its
36:35
Speaker 1: way across the country.
36:37
Speaker 3: There's something that really has a potential to crush people here.
36:41
Speaker 3: and to drive them away from journalism and certainly drive
36:43
Speaker 3: them away from controversial stories. We get into those stories
36:46
Speaker 3: in our next episode.
36:49
Speaker 1: Again, David Enrich's book is called Murder the Truth, Fear
36:52
Speaker 1: the First Amendment, and a Secret Campaign to Protect the Powerful.
36:56
Speaker 1: I recommend it. We reached out to Clarence Thomas and
37:00
Speaker 1: Alan Dershowitz for comment on this episode, but didn't hear back.
37:05
Speaker 1: In our newsletter this week, I'm going to tell the
37:06
Speaker 1: story of why I am so personally grateful to Rachel
37:09
Speaker 1: Ehrenfeldt and every member of Congress in 2010, because my
37:14
Speaker 1: lawyers once used the Speech Act to fight off a
37:16
Speaker 1: legal threat that I was facing in England. Go to
37:19
Speaker 1: kcrw.com slash question everything to sign up. Today's episode was
37:27
Speaker 1: produced by Emily Malterre. It was edited by Jen Kinney.
37:30
Speaker 1: Robin Semien and I executive produced this show. Also on
37:33
Speaker 1: our team, producers Sophie Casis and Zach St. Louis, and
37:37
Speaker 1: contributing editor Neil Drumming. This episode was fact-checked by Annika
37:40
Speaker 1: Robbins and sound designed by Brendan Baker. Matt McGinley made
37:44
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Speaker 1: block in Congress right now. Call your representative and tell
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