Latest / Question Everything / Pounding Beers in a Shed, and Other Dispatches from the War on Free Speech

Transcript

Pounding Beers in a Shed, and Other Dispatches from the War on Free Speech · Question Everything

• 0:00
  Speaker 1: Today on Question Everything, how high-powered people in cities and
• 0:03
  Speaker 1: towns across America are targeting reporters, going after their stories,
• 0:08
  Speaker 1: and have been for a while now, right under our noses.
• 0:11
  Speaker 2: So you had the great honor and pleasure of reporting
• 0:13
  Speaker 2: alongside me for several years in the U.K.
• 0:32
  Speaker 3: Honor, pleasure.
• 0:34
  Speaker 1: This is Hamza Syed. He was on the show recently.
• 0:37
  Speaker 1: He and I reported together in Britain when we were
• 0:39
  Speaker 1: making this series called The Trojan Horse Affair for Serial
• 0:42
  Speaker 1: and The New York Times. It was my first time
• 0:44
  Speaker 1: doing investigative reporting over there.
• 0:46
  Speaker 3: I mean, it was a spectacle, to be honest. It
• 0:49
  Speaker 3: was a daily pantomime watching you try to report in Britain.
• 0:53
  Speaker 3: You kept referencing the First Amendment repeatedly. You kind of
• 0:57
  Speaker 3: kept going back to how you miss it. It would
• 0:59
  Speaker 3: come up in social conversations.
• 1:01
  Speaker 1: Really?
• 1:02
  Speaker 3: Yeah.
• 1:03
  Speaker 1: I really miss the First Amendment. Whales.
• 1:07
  Speaker 3: You said that in whales, like gazing at the stars.
• 1:14
  Speaker 1: So that's how— I mean, I remember feeling that. I
• 1:16
  Speaker 1: don't remember saying it as much. You'd say it. You'd
• 1:18
  Speaker 1: share it. You'd share it. I learned from doing that project,
• 1:21
  Speaker 1: apparently somewhat melodramatically, that while the United Kingdom is a
• 1:25
  Speaker 1: democracy and yet has a free press— What that means,
• 1:28
  Speaker 1: having a free press, is way different in practice than
• 1:31
  Speaker 1: what it means over here. Like, having the First Amendment,
• 1:34
  Speaker 1: it really matters. I was just very surprised that I
• 1:38
  Speaker 1: missed it so tangibly. I just never expected in a
• 1:42
  Speaker 1: fellow democracy to have it feel so appreciably different to report.
• 1:51
  Speaker 1: Every day something would happen where I'd be like, damn,
• 1:54
  Speaker 1: I missed the First Amendment. We'd be trying to get
• 1:57
  Speaker 1: records from an open trial that was heard in public,
• 2:00
  Speaker 1: records that would definitely be accessible in the U.S. But
• 2:03
  Speaker 1: in the U.K., no First Amendment, no cigar. We'd get
• 2:06
  Speaker 1: a letter from some government lawyers mad about information we'd
• 2:09
  Speaker 1: been leaked, threatening to go to court and get a
• 2:11
  Speaker 1: judge to gag us from saying anything about it. In
• 2:15
  Speaker 1: the U.S., thank you, First Amendment, that's pretty much impossible
• 2:19
  Speaker 1: to do. You can't prevent a reporter from publishing like that.
• 2:22
  Speaker 1: But in Britain, officials and rich people, they do it
• 2:25
  Speaker 1: all the time. Plus, everyone is just way more worried
• 2:29
  Speaker 1: about defamation suits over there. Because, like we got into
• 2:32
  Speaker 1: in our last episode, without the First Amendment, it's a
• 2:35
  Speaker 1: lot easier to sue for defamation and win in the
• 2:38
  Speaker 1: British legal system. I found that this showed up in
• 2:42
  Speaker 1: a million little insidious ways, in big decisions and small ones,
• 2:47
  Speaker 1: that were being made by reporters, editors, lawyers, but also
• 2:52
  Speaker 1: just people who might be sources for journalists, potential whistleblowers.
• 2:56
  Speaker 1: victims of abuses. They're way more cautious, way more frightened
• 3:01
  Speaker 1: of speaking out in a way that might rattle people
• 3:03
  Speaker 1: in power.
• 3:04
  Speaker 3: Everybody we spoke to, certainly anyone who spoke to us
• 3:07
  Speaker 3: on the record, were speaking circular because of the risk
• 3:11
  Speaker 3: of a defamation. So nobody would say directly what they
• 3:15
  Speaker 3: were thinking, what they were feeling.
• 3:17
  Speaker 1: Hamza and I actually got a couple defamation threats ourselves
• 3:20
  Speaker 1: as we were reporting that story before we aired anything.
• 3:23
  Speaker 1: One threat was from the city council in Birmingham, England.
• 3:26
  Speaker 1: which had gotten wind of some information we'd uncovered that
• 3:29
  Speaker 1: exposed certainly incompetence and maybe even a cover-up by officials there.
• 3:34
  Speaker 1: They didn't want us to report it, so they sent
• 3:36
  Speaker 1: us a scary letter, which was way less scary, though,
• 3:39
  Speaker 1: than it would have been because we were working for
• 3:41
  Speaker 1: an American news outlet, which meant our lawyers were able
• 3:44
  Speaker 1: to write a strongly worded letter back telling them basically
• 3:47
  Speaker 1: to go shove it, listing all the ways their case
• 3:49
  Speaker 1: would never be successful because of the First Amendment. It
• 3:53
  Speaker 1: seemed to work. We called their bluff and ran the story.
• 3:56
  Speaker 1: and they never did sue us. But still, it caused
• 3:59
  Speaker 1: us a ton of distraction and anxiety and took up
• 4:02
  Speaker 1: a lot of resources. For me and Hamza, we had
• 4:05
  Speaker 1: to slow our reporting for a while and focus on
• 4:07
  Speaker 1: responding to this. For multiple editors who had to get involved,
• 4:11
  Speaker 1: not to mention lawyers on both sides of the Atlantic.
• 4:14
  Speaker 1: Those lawyers were not cheap. We were fortunate that our
• 4:16
  Speaker 1: employer could support all this, but it didn't stop my
• 4:19
  Speaker 1: grumbling to Hamza.
• 4:20
  Speaker 3: You kept insisting, like, how do you guys report? How
• 4:23
  Speaker 3: do you have a functioning democracy, if you have no
• 4:26
  Speaker 3: right to be able to, you know, inform the public,
• 4:31
  Speaker 3: do your job. I was, you know, thinking, mate, I
• 4:33
  Speaker 3: hear you, you know, I hear you, but I can't
• 4:35
  Speaker 3: resolve this for you, mate, you know?
• 4:37
  Speaker 1: I mean, them's the rules, mate, you know what I mean?
• 4:39
  Speaker 3: We're in Britain, there ain't no constitution here.
• 4:41
  Speaker 1: Yeah. I am so freaking grateful for the First Amendment.
• 4:55
  Speaker 1: And like a lot of us, I'm worried that we're
• 4:58
  Speaker 1: seeing it get eroded or ignored, that day by day
• 5:01
  Speaker 1: almost we're losing the protections for speech and journalism that
• 5:05
  Speaker 1: for a long time set the U.S. apart. I've felt
• 5:09
  Speaker 1: it a lot lately watching the egregious retaliation we've seen
• 5:12
  Speaker 1: in just the last month or two by the Trump
• 5:14
  Speaker 1: administration against international students at universities who've spoken out in
• 5:18
  Speaker 1: support of Palestinians. and criticized Israeli and U.S. policies. The
• 5:23
  Speaker 1: government has detained some of these students and is holding
• 5:26
  Speaker 1: them right now without charges, threatening them with deportation. Our
• 5:30
  Speaker 1: show is actually hosting a free speech event next week
• 5:33
  Speaker 1: with the student newspaper at one of the campuses where
• 5:35
  Speaker 1: this happened, Tufts. We'll air that next Thursday. But if
• 5:38
  Speaker 1: you listened to yesterday's episode with Times editor David Enrich,
• 5:42
  Speaker 1: and if you didn't, please go do that because what
• 5:44
  Speaker 1: you're hearing right now is the second part of a series,
• 5:47
  Speaker 1: you'll know that there's also a growing organized movement to
• 5:51
  Speaker 1: hollow out the First Amendment's protection of the press by
• 5:54
  Speaker 1: trying to get the Supreme Court to overturn its 1964 decision,
• 5:58
  Speaker 1: New York Times v. Sullivan. Times v. Sullivan is the
• 6:03
  Speaker 1: decision that really gives the First Amendment teeth and protects
• 6:07
  Speaker 1: journalists or anybody who's scrutinizing a public figure from defamation suits,
• 6:11
  Speaker 1: trying to shut down that criticism, or at least it's
• 6:14
  Speaker 1: supposed to. As David Enrich was reporting his book, it's
• 6:19
  Speaker 1: called Murder the Truth, about the effort to get rid
• 6:22
  Speaker 1: of Times v. Sullivan, he discovered that even with the
• 6:25
  Speaker 1: Sullivan decision still in place, over the last decade, the
• 6:28
  Speaker 1: environment for reporting has already gotten way worse in this country.
• 6:33
  Speaker 1: Right now, reporters and newsrooms in towns and cities across
• 6:37
  Speaker 1: the U.S. are facing a wave of legal challenges that
• 6:40
  Speaker 1: are making it way harder for them to do their jobs.
• 6:43
  Speaker 2: People with a lot of money and power, they've set
• 6:47
  Speaker 2: out in a pretty deliberate, well-organized way to just make
• 6:51
  Speaker 2: it much harder for journalists or anyone else to level
• 6:56
  Speaker 2: serious criticism.
• 6:58
  Speaker 1: The U.S. is looking, I truly hate to say this,
• 7:02
  Speaker 1: more like Britain. From Placement Theory and KCRW, I'm Brian Reed.
• 7:06
  Speaker 1: We have some of those stories in just a second.
• 7:18
  Speaker 1: Lots of the cases David found where people have been
• 7:21
  Speaker 1: trying to bully reporters into staying silent about critical stories,
• 7:25
  Speaker 1: they haven't happened in splashy suits against national news outlets
• 7:28
  Speaker 1: like Gawker or CNN. They're often against tiny, independent, usually
• 7:33
  Speaker 1: local outlets trying to hold people accountable in their communities. Like,
• 7:38
  Speaker 1: for example, in the town of Carroll, Iowa, west of
• 7:41
  Speaker 1: Des Moines in 2017. So there's a newspaper in Iowa
• 7:44
  Speaker 1: called the Carroll Times-Herald. There's a reporter at that newspaper
• 7:47
  Speaker 1: who named Jared Strong, and he gets a tip that
• 7:51
  Speaker 1: there is a love triangle involving a local cop. So
• 7:55
  Speaker 1: he starts to report it out, and he very quickly
• 7:58
  Speaker 1: gets confirmation there was indeed a local cop for the
• 8:02
  Speaker 1: local police department who had been engaged in this kind
• 8:06
  Speaker 1: of tawdry three-way affair, including with a girl who was
• 8:10
  Speaker 1: in high school. So he informs the local police department
• 8:14
  Speaker 1: that he's working on this story to kind of confirm
• 8:16
  Speaker 1: some details and ask them for comment. And the local
• 8:20
  Speaker 1: police chief on a recorded phone call threatens the paper's
• 8:23
  Speaker 1: publisher saying that just a reminder, you know, we can
• 8:28
  Speaker 1: pull you over whenever we want and we can harass
• 8:30
  Speaker 1: you if you go down this path. The publisher of
• 8:33
  Speaker 1: the paper who had the paper had been owned in
• 8:36
  Speaker 1: his family for generations, you know, basically told him to
• 8:40
  Speaker 1: stuff it. They published the story and the local cop
• 8:45
  Speaker 1: named Jacob Smith finds a lawyer and sues. both the
• 8:49
  Speaker 1: paper and the reporter, Jared Strong.
• 8:52
  Speaker 2: The lawyer goes on the public radio station there and
• 8:55
  Speaker 2: really just smears the reporter and the news outlet over
• 8:58
  Speaker 2: and over again. And it basically turned this reporter and
• 9:02
  Speaker 2: his boss's lives upside down. And Jared was kind of pushed.
• 9:06
  Speaker 2: He knew that what he had written was right, but
• 9:08
  Speaker 2: he also knew that this was a legal process that
• 9:10
  Speaker 2: could go on for a long time. And he It
• 9:14
  Speaker 2: really pushed him psychologically a lot further than he.
• 9:17
  Speaker 1: Wanted to be pushed.
• 9:18
  Speaker 2: I think he really was having some serious mental health concerns.
• 9:21
  Speaker 1: How so? What was that like?
• 9:23
  Speaker 2: The way he described it is that he was drinking
• 9:26
  Speaker 2: way too much. He was spending a lot of alone
• 9:29
  Speaker 2: time in the tool shed he had out back, listening
• 9:33
  Speaker 2: to the radio interview in which this lawyer had smeared
• 9:36
  Speaker 2: him on repeat while pounding beers and sometimes being so drunk.
• 9:42
  Speaker 2: That it was really affecting his ability to do his
• 9:45
  Speaker 2: job properly. That, by the way, is a pattern that
• 9:50
  Speaker 2: I've seen over and over again, talking with journalists who
• 9:52
  Speaker 2: work for smaller news outlets or independent journalists, that these
• 9:55
  Speaker 2: legal attacks and threats exact an incredible psychological effect. toll
• 10:00
  Speaker 2: on people that is separate from the issue of whether
• 10:02
  Speaker 2: they can afford lawyers and pay all the legal bills.
• 10:05
  Speaker 2: There's something that really has a potential to crush people
• 10:09
  Speaker 2: here and to drive them away from journalism and certainly
• 10:12
  Speaker 2: drive them away from controversial stories.
• 10:15
  Speaker 1: But this reporter, Jared Strong, didn't back down. He and
• 10:18
  Speaker 1: his paper fought the suit and And eventually they won.
• 10:21
  Speaker 1: The judge determined that the papers reporting about the police
• 10:23
  Speaker 1: officer was accurate. The cop actually admitted in a deposition
• 10:27
  Speaker 1: that he'd had a relationship with a 17-year-old high school
• 10:30
  Speaker 1: student and that he knew it was wrong. But by
• 10:33
  Speaker 1: that point, the paper had spent so much money defending
• 10:35
  Speaker 1: themselves and lost so much subscription revenue based in part
• 10:38
  Speaker 1: on the negative campaigning against them.
• 10:40
  Speaker 2: They finally win the case and it's exacted such a toll,
• 10:45
  Speaker 2: despite having won, that the owner is forced to sell
• 10:48
  Speaker 2: the newspaper.
• 10:51
  Speaker 1: The Carroll Times Herald had been in the publisher's family,
• 10:53
  Speaker 1: locally owned, for nine decades. And so this is what's happening,
• 11:02
  Speaker 1: and Times New Sullivan is the law of the land. Yeah. Like,
• 11:05
  Speaker 1: this is what's happening now. All over the country.
• 11:08
  Speaker 2: I mean, this is just one random incident involving one
• 11:11
  Speaker 2: random newspaper. And it's happening, I mean, I've got a
• 11:14
  Speaker 2: bunch of other kind of similar stories in the book,
• 11:16
  Speaker 2: but I can't tell, the number of stories like this
• 11:18
  Speaker 2: that are on the cutting room floor is.
• 11:21
  Speaker 1: Is enormous. I read the book. There's the paper in
• 11:26
  Speaker 1: Colorado Springs that was exposing environmental hazards in a high-end
• 11:29
  Speaker 1: housing development that was built on an old mine. After
• 11:33
  Speaker 1: the real estate company threatened the paper a bunch, it
• 11:36
  Speaker 1: stopped its coverage of the development, and the reporter on
• 11:38
  Speaker 1: the story ended up quitting his job and moving out
• 11:41
  Speaker 1: of town. The development's still there, selling people houses. There's
• 11:45
  Speaker 1: the blogger operating out of his parents' house in California...
• 11:49
  Speaker 1: who was doing serious investigative reporting about the finances of
• 11:52
  Speaker 1: Russian oligarchs, who quit journalism after one of them sued
• 11:56
  Speaker 1: and he was hospitalized with panic attacks. There's the New
• 11:59
  Speaker 1: Hampshire businessman, owner of the state's largest network of drug
• 12:03
  Speaker 1: and alcohol rehab centers, who sued New Hampshire Public Radio
• 12:07
  Speaker 1: for reporting about sexual misconduct allegations against him. Someone later
• 12:11
  Speaker 1: threw a brick through the window of the reporter's home.
• 12:17
  Speaker 2: There's a case I talk about in Wisconsin involving a
• 12:21
  Speaker 2: newly started community news outlet that accurately covered a town
• 12:26
  Speaker 2: meeting where a prominent local businessman used a homophobic slur
• 12:31
  Speaker 2: to describe someone else at the meeting. Did this in public,
• 12:35
  Speaker 2: in full public view. The reporter was not actually at
• 12:38
  Speaker 2: this meeting but talked to a bunch of people who
• 12:40
  Speaker 2: were there who all confirmed that it was this particular
• 12:44
  Speaker 2: individual who had uttered the slur. And they wrote a story,
• 12:48
  Speaker 2: as one would, and the guy sued, claiming that he
• 12:51
  Speaker 2: hadn't uttered the slur.
• 12:53
  Speaker 1: And again, putting aside whether he did say the.
• 12:56
  Speaker 2: Slur or not, like I would say with 95 percent
• 12:59
  Speaker 2: confidence he did say it because this local paper had
• 13:02
  Speaker 2: all the reporting.
• 13:03
  Speaker 1: He sued.
• 13:04
  Speaker 2: The lawsuit went on so long before it was eventually
• 13:06
  Speaker 2: dismissed that Shereen Seward, who is the woman who started
• 13:10
  Speaker 2: this community news outlet, was basically– she was basically ready
• 13:14
  Speaker 2: to give up. I mean, she told me, I do
• 13:15
  Speaker 2: not know why I continue doing this. It is not
• 13:17
  Speaker 2: worth it at this point. And just having grave doubts
• 13:20
  Speaker 2: about her ability or her kind of capacity to continue.
• 13:25
  Speaker 1: The local businessman has, quote, unequivocally denied saying the slur.
• 13:30
  Speaker 1: What's he up to now? He's a Wisconsin state senator.
• 13:37
  Speaker 2: One of the things I've seen with these lawsuits over
• 13:39
  Speaker 2: and over again is that the ones that are most
• 13:42
  Speaker 2: effective at shutting down coverage or and in some cases
• 13:45
  Speaker 2: pushing news outlets and journalists to the brink, are not
• 13:48
  Speaker 2: successful and rarely never stood any chance of being successful
• 13:51
  Speaker 2: on the merits in terms of winning in court. They
• 13:54
  Speaker 2: were threats and they were being weaponized to make the journalists'
• 13:57
  Speaker 2: lives miserable and to force news outlets and publishers to
• 14:01
  Speaker 2: kind of do this cost-benefit analysis of, well, do we
• 14:04
  Speaker 2: continue this line of coverage and risk our very existence?
• 14:08
  Speaker 1: Or do we live.
• 14:09
  Speaker 2: To fight another day and just kind of steer clear
• 14:12
  Speaker 2: of this topic or kind of dilute what we're saying?
• 14:14
  Speaker 1: And, I mean, both of those outcomes suck. These cases
• 14:22
  Speaker 1: David highlights in his book, they're not strong cases. What
• 14:25
  Speaker 1: these journalists reported should be protected by the First Amendment
• 14:29
  Speaker 1: and Times v. Sullivan. Many of these cases do end
• 14:32
  Speaker 1: up getting thrown out by the courts or are never
• 14:34
  Speaker 1: actually even filed in the first place. They're just threats.
• 14:39
  Speaker 1: But a threat can be damaging enough, even if it
• 14:41
  Speaker 1: never becomes an actual lawsuit. It's easy to rack up
• 14:44
  Speaker 1: legal fees, like we did when we got threatened in
• 14:47
  Speaker 1: the UK. Plus, lots of outlets feel the need to
• 14:49
  Speaker 1: pay for insurance that covers them if they do get
• 14:51
  Speaker 1: sued for defamation. We have it at this show. It
• 14:55
  Speaker 1: does not cover threats, by the way. It only kicks
• 14:57
  Speaker 1: in if you actually get sued. And even then, there's
• 14:59
  Speaker 1: a deductible, etc. It's like health insurance. This is not
• 15:04
  Speaker 1: the spirit of free, rough debate that the Supreme Court
• 15:08
  Speaker 1: was trying to foster with Times v. Sullivan. David says
• 15:19
  Speaker 1: the threats, the lawsuits, the intimidation, the persistent attacks on journalists,
• 15:24
  Speaker 1: it's all part of a wider strategy to stop tough
• 15:27
  Speaker 1: press coverage in the country, to make it harder, more risky,
• 15:31
  Speaker 1: to hold leaders accountable. It's like, imagine if freedom of
• 15:35
  Speaker 1: speech were a big ship and there's a group of
• 15:38
  Speaker 1: pirates trying to take it down. If they can manage
• 15:41
  Speaker 1: to destroy the engine, that would be the fatal blow.
• 15:44
  Speaker 1: That's revoking Times v. Sullivan. But the engine room, it
• 15:48
  Speaker 1: has lots of defenses. It's hard to get at. It's entrenched.
• 15:51
  Speaker 1: You might eventually be able to strike it, but it
• 15:53
  Speaker 1: could take a while until you have your shot. So
• 15:56
  Speaker 1: in the meantime, the pirates try to damage the ship
• 15:58
  Speaker 1: how they can, pelt it with musket fire or cannonballs
• 16:01
  Speaker 1: or whatever, and knock down some defenses. Those small news outlets, Gawker,
• 16:06
  Speaker 1: start springing real leaks, hoping maybe one of those will
• 16:10
  Speaker 1: eventually give them access to the engine room. That's what's
• 16:14
  Speaker 1: been happening over the last decade and has especially picked
• 16:17
  Speaker 1: up after Clarence Thomas wrote his opinion in 2019 in
• 16:20
  Speaker 1: the case against Bill Cosby, where Thomas announced to the country,
• 16:24
  Speaker 1: Times v. Sullivan's wrong. Bring me a case so we
• 16:27
  Speaker 1: can obliterate it.
• 16:29
  Speaker 2: Him taking up this case, it really ignited this whole
• 16:32
  Speaker 2: kind of small industry of people who were trying to
• 16:37
  Speaker 2: come up with intellectual, legal, and constitutional bases from which
• 16:42
  Speaker 2: you could attack Sullivan.
• 16:44
  Speaker 1: You had interest groups and think.
• 16:46
  Speaker 2: Tanks You had lawyers that had found Thomas in general
• 16:50
  Speaker 2: to be inspiring, who read every word that Thomas ever wrote,
• 16:54
  Speaker 2: saw this opinion, and started bringing cases. And you had
• 16:58
  Speaker 2: academics starting to do research into this area, I think
• 17:02
  Speaker 2: in part inspired by Thomas.
• 17:04
  Speaker 1: People are testing out arguments, building a legal playbook, seeing
• 17:08
  Speaker 1: what might stick. In the Wisconsin case, for instance, the
• 17:12
  Speaker 1: lawyer wrote an appeal arguing that his client shouldn't be
• 17:15
  Speaker 1: considered a public figure. This is the guy who was
• 17:17
  Speaker 1: a businessman when the case was first filed, but who now,
• 17:20
  Speaker 1: as this appeal was written, was a state senator. A
• 17:24
  Speaker 1: lot of the arguments for why the First Amendment, why Sullivan,
• 17:27
  Speaker 1: needs to be weakened boil down to this. Critics say
• 17:31
  Speaker 1: it's because as it stands, journalists can say or print
• 17:34
  Speaker 1: whatever they want, and it's essentially impossible for a public
• 17:37
  Speaker 1: figure to win a defamation suit against them. They complain
• 17:40
  Speaker 1: that Sullivan puts the bar unrealistically high and that news
• 17:44
  Speaker 1: organizations take advantage of it. The problem with that argument
• 17:47
  Speaker 1: is that a bunch of recent high-profile cases point against that.
• 17:52
  Speaker 1: The families, for example, whose children were killed in Sandy Hook, Connecticut,
• 17:57
  Speaker 1: they were public figures by dint of being part of
• 17:59
  Speaker 1: an important news event. And still, they successfully sued Infowars,
• 18:04
  Speaker 1: the channel run by the conspiracy theorist Alex Jones, for
• 18:07
  Speaker 1: defaming them when he claimed that their kids were crisis actors.
• 18:12
  Speaker 1: There's the Rolling Stone case, where the dean from UVA
• 18:14
  Speaker 1: won $ 3 million after the magazine unfairly tied her to
• 18:17
  Speaker 1: a culture of rape flourishing on campus. Dominion Voting Systems,
• 18:23
  Speaker 1: the voting machine company that sued Fox News for defamation
• 18:26
  Speaker 1: and extracted the largest known defamation settlement in American history
• 18:30
  Speaker 1: from them, $ 787. 5 million. They were considered a public figure.
• 18:36
  Speaker 1: So is E. Jean Carroll, who won her cases against
• 18:39
  Speaker 1: Donald Trump for lots of money. So big defamation suits
• 18:42
  Speaker 1: can be won by public figures when the lies are
• 18:45
  Speaker 1: found to be egregious enough. But that hasn't stopped the
• 18:51
  Speaker 1: pirate attack. Along with all the lawsuits and legal arguments,
• 18:55
  Speaker 1: some research has started circulating, supposedly showing that the media
• 18:58
  Speaker 1: gets more wrong these days. David backchecks this research in
• 19:02
  Speaker 1: his book. It's not right, but it makes it into
• 19:05
  Speaker 1: the conservative legal bloodstream anyway. It starts showing up in
• 19:08
  Speaker 1: more decisions critical of Sullivan. including a couple by another
• 19:12
  Speaker 1: Supreme Court justice, Neil Gorsuch, who joined Clarence Thomas, suggesting
• 19:17
  Speaker 1: that it might be time to give that precedent another look.
• 19:21
  Speaker 1: And this has all trickled down through the court system nationwide.
• 19:27
  Speaker 2: Judges at the federal level and the state level who
• 19:30
  Speaker 2: used Thomas's, not only his critique of Sullivan, but his invitation,
• 19:34
  Speaker 2: his bat signal to bring more cases, I think as
• 19:37
  Speaker 2: kind of an opportunity to to push the boundaries a
• 19:40
  Speaker 2: little bit?
• 19:40
  Speaker 1: No, it's nefarious. And they see an opening. They see
• 19:43
  Speaker 1: that the public opinion is turned against reporters and journalists.
• 19:47
  Speaker 1: And clearly these ideas are taking hold. I mean, it
• 19:50
  Speaker 1: came out in the Pulitzer, the recent decision in the
• 19:52
  Speaker 1: Pulitzer suit, which we covered on our show. You close
• 19:55
  Speaker 1: listeners to our show will remember we did a little
• 19:57
  Speaker 1: story a while ago about how Donald Trump is currently
• 20:00
  Speaker 1: suing the Pulitzer Prize Board for defamation. And the day
• 20:03
  Speaker 1: before we ran that story back in February, there was
• 20:06
  Speaker 1: a decision in the case from a panel of judges
• 20:08
  Speaker 1: in Florida. And there were these few pages at the
• 20:11
  Speaker 1: end of the decision from one of the judges, Ed Artaud.
• 20:14
  Speaker 1: These are pages Judge Artaud chose to write on his own.
• 20:17
  Speaker 1: They were not legally necessary or central to what was
• 20:19
  Speaker 1: being decided. He just felt moved to write them, I guess.
• 20:23
  Speaker 1: And what he used them to do is rail against
• 20:26
  Speaker 1: Times v. Sullivan, all but begging the Supreme Court to
• 20:29
  Speaker 1: overturn it. It seems to be a trend here where
• 20:31
  Speaker 1: it's like these cases that don't demand some long takedown
• 20:36
  Speaker 1: of Sullivan— Judges use the opportunity to just offer up
• 20:40
  Speaker 1: that Sullivan's terrible and overturn it. That's what happened in
• 20:42
  Speaker 1: that case. Yeah. It ended with like a quote of
• 20:45
  Speaker 1: all caps fake news from a judge. No, I mean,
• 20:48
  Speaker 1: I've read it.
• 20:50
  Speaker 2: And while there's no impact necessarily from a judge complaining
• 20:54
  Speaker 2: about Sullivan, if they're not in the Supreme Court because
• 20:56
  Speaker 2: they can't overturn it or buck precedent, it can filter
• 20:59
  Speaker 2: into their thinking in ways that do affect the trajectory
• 21:01
  Speaker 2: of cases and lead cases to linger longer and and
• 21:06
  Speaker 2: to produce results in some instances that really under a
• 21:11
  Speaker 2: stricter interpretation of Sullivan and a more kind of loyal
• 21:14
  Speaker 2: interpretation of Sullivan, I do not think would be happening.
• 21:26
  Speaker 1: I got a text one Saturday night around the time
• 21:28
  Speaker 1: of that case from my buddy who's a newsroom lawyer.
• 21:32
  Speaker 1: At the Austin airport, coming back from a media law conference,
• 21:36
  Speaker 1: Things are bleak, man. This was the week that Steve Wynn,
• 21:40
  Speaker 1: the casino billionaire, had asked the Supreme Court formally to
• 21:44
  Speaker 1: revisit Times v. Sullivan. So I figured that's what everybody
• 21:47
  Speaker 1: was talking about. But no, my friend said. He didn't
• 21:50
  Speaker 1: even hear that come up. Folks are fatalistic about a
• 21:53
  Speaker 1: lot of things, he texted me. But I would say
• 21:55
  Speaker 1: there's only a low to medium fear that SCOTUS will
• 21:58
  Speaker 1: overturn Sullivan. So what are people more afraid of than that,
• 22:02
  Speaker 1: I asked. Frivolous defamation suits, he said. According to The
• 22:06
  Speaker 1: Buzz at this media law conference, even with Sullivan in place,
• 22:11
  Speaker 1: courts seem way less inclined to toss out cases that
• 22:14
  Speaker 1: not all that long ago would have been tossed out.
• 22:17
  Speaker 1: And again, for.
• 22:17
  Speaker 2: The New York Times, that's not a problem. If you
• 22:21
  Speaker 2: are a guy with your blog that we're taking on
• 22:24
  Speaker 2: Russian oligarchs and a case is going to drag on
• 22:26
  Speaker 2: an extra six months, that's thousands of dollars you don't have.
• 22:30
  Speaker 2: And again, this pattern repeats itself over and over again.
• 22:32
  Speaker 2: So there's a real cost to this.
• 22:34
  Speaker 1: That cost... It can be hard to see sometimes, because really,
• 22:38
  Speaker 1: it's tallied in stories not run, leads not pursued, in
• 22:43
  Speaker 1: watered-down language and questions unasked. And it's hard to perceive
• 22:48
  Speaker 1: an absence. Again, it took me reporting in a place
• 22:51
  Speaker 1: without the First Amendment to really understand it myself. After
• 22:56
  Speaker 1: Hamza's and my series came out, we got on a
• 22:59
  Speaker 1: Zoom with a reporter from The Guardian who was supposed
• 23:01
  Speaker 1: to write about our investigation. We were prepared to answer
• 23:03
  Speaker 1: hard questions. But she started the conversation by saying the
• 23:07
  Speaker 1: Guardian had gotten a threatening letter about our story from
• 23:09
  Speaker 1: the government. So right before the call, she'd scrapped a
• 23:13
  Speaker 1: bunch of the questions she planned to ask us. She
• 23:16
  Speaker 1: was going to avoid asking specific questions about the people
• 23:19
  Speaker 1: we'd spent years reporting on. She would avoid asking about
• 23:22
  Speaker 1: what we'd actually uncovered in our investigation, the substance of
• 23:25
  Speaker 1: our reporting. I remember the way she said it. It
• 23:28
  Speaker 1: was like it was normal. Like, of course you'd censor
• 23:31
  Speaker 1: yourself after a legal threat. Instead... She asked Hams and
• 23:35
  Speaker 1: I what kind of stuff we did to relax during
• 23:37
  Speaker 1: our reporting trips. This episode was produced by Emily Malterre.
• 23:46
  Speaker 1: It was edited by Jen Kinney with help from Neil Drumming.
• 23:49
  Speaker 1: Robert Simeon and I executive produced this show. Our show
• 23:52
  Speaker 1: is also produced by Sophie Casis and Zach St. Louis. Please,
• 23:56
  Speaker 1: if you like Question Everything, if you appreciate what we're doing,
• 23:59
  Speaker 1: go rate and review us on Apple Podcasts and Spotify.
• 24:03
  Speaker 1: It helps people who don't know about us yet find
• 24:05
  Speaker 1: out about what we're doing and also just share the
• 24:07
  Speaker 1: show with your friends. We appreciate it. Also, check out
• 24:10
  Speaker 1: David Enrich's book, Murder the Truth. This episode was fact-checked
• 24:13
  Speaker 1: by Annika Robbins and sound designed by Brendan Baker. Matt
• 24:17
  Speaker 1: McGinley wrote our music. Our partners at KCRW include Arnie Seipel,
• 24:22
  Speaker 1: Gina Delvac, Tejal Ajmera, Natalie Hill, and Jennifer Farrow. We'll
• 24:25
  Speaker 1: see you next week.