The Right-Wing Plot to Weaken the Media

Supreme Court Justice Clarence Thomas and his wife, Ginni, at his Senate confirmation hearings in 1991. Doug Mills/AP

On Friday, Donald Trump delivered an unhinged and rambling rant at the Justice Department. He whined about the same old, woe-is-me grievances and excoriated his political enemies, calling them “scum.” He denounced by name legal activists who have dared challenge his administration’s actions, essentially placing targets on them. He also dwelled on his favorite theme of media bashing and went so far as to declare critical press coverage of him and federal judges “illegal.” This was Trump at his most demagogic and vengeful. It signaled that for all the acts of revenge he has implemented in the past six weeks, he is hungry for more payback And journalists remain at the top of his enemies list.

That same day, I spoke with David Enrich, an accomplished investigative reporter for the New York Times and the author of a new book, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful. In this work, he chronicles an important front in the right’s war on the media: an ongoing crusade by conservatives to weaken, if not demolish, New York Times v. Sullivan, the landmark 1964 Supreme Court decision that protects journalists and commentators from malicious and baseless libel suits. As Enrich chronicles in an engaging narrative, right-wing outfits and a small band of attorneys have been plotting for years to reverse Sullivan. If they succeed, the media—large and small, national newspapers and local bloggers—will be severely hampered and blocked from investigating and criticizing the powerful, and oligarchs, corporations, and politicians will have a freer hand to wield and abuse their power and escape scrutiny and accountability. Here’s an edited version of our chat.

Let’s start with the basics. What was the Sullivan case?

This case was brought by L.B. Sullivan, who was in charge of the Montgomery, Alabama, police department. He was angry about an ad the Times had run that criticized how Sullivan’s force had treated civil rights protesters. The ad contained a few factual errors, and he sued the newspaper for defamation and won. The Times appealed, and the Supreme Court, in a unanimous decision, ruled that public officials like Sullivan need to clear a higher bar to win defamation cases. It said they must prove that someone knowingly lied about them or was acting with reckless disregard for the accuracy of what they were reporting. The court reasoned that it was important to afford journalists and others breathing room to talk freely and openly about powerful people without worrying that honest errors would make them susceptible to ruinous litigation. The court later expanded this standard to cover other public figures, such as corporate executives, political candidates, and celebrities.

We're familiar with the story of how the right schemed for 50 years to overturn Roe v. Wade. In similar fashion, another conservative crusade has targeted Sullivan to make it much tougher for the media to scrutinize powerful interests. How did it get started, and why has this become a conservative movement goal?

For a long time after Sullivan, there was a broad bipartisan consensus that it had been decided correctly because it protected voices on the right, the left, and in between. Everyone seemed to like it. And then around 2015, Donald Trump comes on to the scene and makes media bashing a central part of his schtick. He's doing that, obviously, to rev up his base—and because the media could be an effective check on his lies and disinformation. Around that time, a couple of big court cases had occurred that demonstrated the power of lawsuits to potentially cripple news outlets like Gawker, a website that combined gossip and investigative journalism, often targeting elites. This combination of Trump's incendiary rhetoric—he vowed to weaken libel laws—and these cases inspired a group of conservative lawyers, activists, politicians, and judges to figure out ways to attack Sullivan.

Can you briefly describe the Gawker case? Most important, who was behind it?

Hulk Hogan, the wrestler, sued Gawker because it had published a snippet of a sex tape he was in. The case went to trial in Florida. Hogan had some good lawyers, and Gawker had acted somewhat in a cavalier manner, as it was wont to do. Hogan won a crippling verdict against Gawker for defamation of $140 million, which forced the outlet to shut down. But this was a small snapshot of the true picture. It later emerged that Peter Thiel, the Silicon Valley billionaire, had masterminded and financed this lawsuit. The reason Thiel wanted to destroy Gawker was that it had pioneered a model of covering Silicon Valley that was more skeptical and critical than what most of the mainstream media was doing. Much reporting on Silicon Valley marveled at its cool gadgets and inventions. Gawker was digging into the finances, ideological views, and tactics of the most powerful people in Silicon Valley, including Thiel, and he hated it. Gawker also published a piece that described Thiel as being gay, which was widely known in Silicon Valley, but, understandably, he wasn't happy with Gawker. But worse, Gawker was starting to influence how the the rest of the media was covering Silicon Valley. Thiel thought that by destroying the site, or at least severely hurting it, he could send a message to the rest of the media industry to be careful.

Thiel is a Big Tech oligarch who doesn’t like scrutiny—like many powerful people and institutions.  It seems that this campaign to overturn existing libel law is driven by their desire to avoid such coverage.

That’s exactly right. This is largely about muzzling voices and coverage that provides extra scrutiny of some of the most powerful people in the world. But that's why the First Amendment exists, right? So we have a vigorous, independent news media willing and able to criticize and interrogate people in power. The framers of the Constitution considered this essential to providing a check on government power and, in particular, the power of the president. It’s not a surprise that people who wield a lot of power and have a ton of money believe they will be better off if there are not loud voices criticizing them or examining them closely. We're seeing this with Thiel, Elon Musk, Trump, and other oligarchs and billionaires, but I found in reporting the book that this is happening at a more micro level across the country as well. For example, I write about a local real estate development company hiring lawyers to sue a community newspaper for defamation when it was investigating a real estate project.

That can have a chilling effect.

Yes. This campaign is posing a grave risk to the ability of journalists, especially those who don't have the institutional backing of a place like the New York Times, to perform good accountability journalism, in which they're seeking to uncover wrongdoing. That’s because these defamation cases can cost a lot of money to defend, even if you're right. The book is full of many cases that were brought by people who were trying to silence investigative reporters or critics in the press. They failed in winning defamation verdicts. But nevertheless, these cases took a toll on these outlets, just in terms of money spent on the defense. And there's emotional damages and strife caused by such a lawsuit. Just the filing of a case in and of itself can create a chilling factor and cause an institution to give up on this sort of reporting.

A libel lawsuit doesn’t need to end in a verdict for the plaintiff to be successful. The legal costs can ruin a small media outlet—and that’s quite the disincentive for investigative reporting.

Winning the court case is not always the point. It often takes years for a defamation case to work its way through the court system. That’s expensive and time-consuming. Many news outlets have libel insurance. A lot don't. But for those that do, when you get sued, even if you win, the price you then pay for libel insurance skyrockets. The financial toll lingers for years afterwards.

It’s using lawsuits that often have no shot at success for legal warfare.

This is a deliberate strategy by powerful people and a small group of law firms that have emerged in recent years that are devoted to threatening and suing journalists and news outlets. They correctly recognize that the act of simply writing a threatening letter can tie some news organizations in knots, and filing a lawsuit takes it to a whole other level. I work at the New York Times. We’re good at dealing with this kind of stuff. I'm sure you've dealt with this yourself. But one of the bright spots of journalism now is this explosion of independent voices, whether it’s someone with a Substack newsletter, a YouTube channel, or a podcast. This is a good thing for democracy, and it fills some of the void left by local newspapers closing. These independent journalists face the most serious risk—an existential risk in some cases—from this type of weaponized lawfare that’s meant to shut them up when they start looking into or criticizing powerful people.

One of the many cases you describe in your book—and each is like a television courtroom drama—involves Mother Jones. We wrote about a Republican multimillionaire who was supporting Mitt Romney. He sued us. We won handily. But even with libel insurance, it still cost us a lot of money. And we’re always on a tight budget. A media organization not as well supported as ours would have had a much tougher time. There’s a major character in this book who we haven't yet talked about: Clarence Thomas.

Thomas is central to this book because in 2019 he became the first sitting Supreme Court justice in 2019 to call for overturning Sullivan—which he did in a dissent. He is obviously one of the leading figures in the conservative legal movement. So he basically put out an open invitation, urging someone to bring him a case that he could use as a vehicle for overturning Sullivan. This movement was already underway, but that was an accelerating moment. I talked to conservative lawyers and activists around the country. When they heard Thomas put out this call, they started bringing more lawsuits, with the explicit goal of delivering to Thomas what he had asked for.

How did Thomas, to use a legal term, get this bug up his bum?

In the book, I trace Thomas's evolution on this. Let’s start with his confirmation hearing in 1991, when I was 12 years old. I remember the Anita Hill stuff. But before that came up, he was asked about Sullivan. Like many judicial nominees from both parties, he had had spent much of these hearings avoiding answering questions about specific cases. Yet on Sullivan, he gave a surprisingly candid response. He and his wife, Ginni, had been under a lot of media scrutiny as part of the confirmation process and were not enjoying that experience. But he described himself as having told her that this was the price of the First Amendment, and he noted that he valued free speech and freedom of the press. He said it was okay if people like him and his wife had to endure a little bit of discomfort because the press plays a vital role in our democracy. A few weeks later, Hill made her sexual harassment allegations against him, and Thomas went through a kind of mental health breakdown. He feels he's being terribly treated. That was a real turning point for him. Over the next 25 or 30 years, he came to completely blame the media for having started that scandal. He went quickly from viewing the media as an imperfect but vital pillar of democracy to the equivalent of a rabid dog that needed to be put down. He finally channeled that lingering outrage in 2019 when he called for overturning of Sullivan.

That’s a long-term crusade of revenge. Can you explain the significance of the defamation case Dominion Voting Systems brought against Fox News for spreading the lie that Dominion had rigged its voting machines to steal the 2020 election from Trump?

One of the arguments people seeking to overturn Sullivan make is that it has become virtually impossible for public figures to win defamation cases against the media. They argue the bar the Supreme Court set in 1964 is insurmountable. The Dominion case is a good example of how defamation law does and can work in this country: If you can prove that someone is lying, you win. As you know, in this case, Fox hosts and guests were repeatedly lying and spreading conspiracy theories that claimed Dominion, controlled by the Venezuelan government, secretly transferred votes from Trump to Joe Biden. That was not true and did great damage to Dominion's business. Dominion sued Fox for defamation, and, as part of the discovery process, it dug up internal emails and other communications showing Fox employees, like Tucker Carlson, talking openly about the lies that they were spreading. That is, they knew that what they were saying was false. But they disseminated it anyway. That meets the exact test that the Supreme Court set in Sullivan. Fox settled for $787 million, one of the biggest defamation payouts in US history. This shows that our current legal system works reasonably well. You do not need to upend the First Amendment to allow cases like that to go forward.

Another well-known person plays a prominent role in this campaign: Sarah Palin. How does she fit in?

Palin has a lawsuit against the New York Times that is another vehicle to overturn Sullivan. In the mid-2010s, Palin was fading from public view, losing her grip on the spotlight. People cared about her less and less. She was even struggling to get reality TV slot. And it seems like she set out to find someone to sue to shoehorn herself back into the national conversation. She initially considered a lawsuit against a hip-hop performer who had tweeted something mean and inaccurate about Palin, after mistaking an online parody for being real. But this musician quickly took it down and apologized. Palin was told she would lose that lawsuit and did not pursue it. In 2017, after a shooting that targeted Republican House members at a baseball practice, the New York Times published an editorial about political violence that linked Palin and an ad her political action committee had posted online in 2010 to the 2011 shooting of then-Rep. Gabby Giffords. But there was never any evidence to suggest that Palin's ad inspired or caused this shooting of Gifford and several others. The Times recognized that quickly, corrected the editorial, and apologized. This is exactly the type of situation that Sullivan anticipates: When a journalist or a news outlet gets a fact wrong, they are protected from being sued unless the plaintiff—in this case, Palin—can prove that not only were they defamed, but that the party who did the defaming was lying or acted with reckless disregard for the truth.

So Palin didn’t have much of a case. Yet she sued.

The case starts its way through the court system and gets immediately derailed on procedural issues. Palin appeals. Finally, there's a trial. The jury finds for the New York Times. Palin appeals, and the appeals court sends it back for another trial, which starts next month. All through this, the main lawyer for Palin is envisioning that this case will reach the Supreme Court, and he will have a chance to overturn Sullivan. It's unclear to me if that is a realistic possibility, but there’s no doubt that’s the intent.

It’s possible Palin might end up orchestrating a major blow to press freedom in the United States? That’s crazy. Your book reads a bit like a thriller. There’s one case after another brought by right-wing lawyers, all trying to build a pathway to the big prize of killing Sullivan. And conservative outfits have been encouraged by Thomas’ statements, as well as a comment from Justice Neil Gorsuch. But recently the Supreme Court took an action that caused media lawyers to breathe a sigh of relief. What happened and what’s the current state of play?

What's happened is that Gorsuch and Thomas have both declared publicly that they want to overturn Sullivan. There are a couple of other justices who, before they joined the court, made comments critical or questioning of Sullivan. That’s led legal observers to speculate that they might jump on this bandwagon. But there have been a couple of indications recently that those justices might stick with Sullivan. In two instances, these justices used the logic behind Sullivan in majority opinions in cases unrelated to Sullivan. It would be unusual for a justice to cite a precedent that he or she was hoping to overturn. People who follow this stuff closely perceive that as a positive signal that Sullivan is safe for now.

So no need to worry?

I'm not sure it's so simple. The court is going to support its precedents until it doesn't support its precedents. There are several justices whose views are not clear, including Justice Samuel Alito, who’s been on a campaign of trying to delegitimize the media for a couple of years. The likely scenario in the short- to medium-term is that the Supreme Court does not accept a case to overturn Sullivan outright. It’s much more likely they take a case that seeks to chip away at the edges of Sullivan and maybe make it easier for more people to sue the media, but not make it easier for everyone.

This would concern the definition of a public figure. In the original Sullivan decision, it was only government officials who had to meet the higher threshold of proving not only that they had been defamed, but that they had been defamed by someone had acted recklessly. For everyone else, there was a much lower standard to meet to win a case. In subsequent cases, the Supreme Court expanded that circle of people who had to meet that higher threshold. It’s possible the court could narrow that circle. If the Supreme Court were to chip away at any of these precedents, it could make it immeasurably harder for journalists and members of the public to criticize or scrutinize the affairs of people who don't work in the government but who still wield enormous power in our country—a billionaire or, on a local level, a real estate developer. Those are people who can have enormous amounts of clout and sway. It's important that everyone be able to write about them critically and dig into their affairs without worrying that if you screw up a fact by accident, you could be subjected to ruinous litigation. That's what could happen if some of these precedents are either overturned or narrowed. There’s still a lot at stake.

Got anything to say about this item—or anything else? Email me at ourland.corn@gmail.com

There are just too many Donald Trump scams to keep track of, be they lies about his blitzkrieg against democratic governance and decency, or his crass efforts to cash in with crappy crypto, ugly sneakers, Bible sales, a failing social media company, and whatnot. Here’s another con I spotted the other day. Trump’s political operation sent an email to his supporters—I’m assuming it went to millions—that said that “DOGE savings” could lead to a check for each of them.

This is false advertising. Donald Trump and Elon Musk contend their assault on the federal government is part of a supposed plan to slash $1 trillion to $2 trillion from the $6.75 trillion budget to erase the national deficit. This demolition operation is not saving anything near that amount. And their mission to eviscerate government is not actually for efficiency’s sake but to pave the way to autocracy and oligarchic rule. Moreover, any federal money not spent is not slated for a “DOGE dividend check.” But Trump is attempting to persuade his followers—that is, rubes—that they will end up with cash in their pocket due to this endeavor. If you’re looking for fraud, we found it.

White Lotus, Season 3. I don’t have much time for hate-watching. But I do hate-watch HBO’s White Lotus, the series created by Mike White that each season starts with a mysterious death at an ultra-luxury resort in an exotic locale. The show then rewinds a week, as the viewer wonders who died and whodunit. The series has moved from Hawaii in the first season to Sicily in the second and now lands in Thailand. And the formula repeats: a bunch of Obnoxiously Rich People—with suitcases stuffed with expensive clothes and bags filled with secrets—arrive in paradise, not realizing the days ahead ain’t going to be a picnic.

Credit where credit is due, White manages to keep the suspense taut, as each sunshine-y day proceeds. The secrets of the ORP seep out by the pool, or on the veranda, or during day trips. And you don’t know which one will lead to…murder! The interactions between the tourists and the locals and the help are usually tense. Even the ORP who try to play nice with the commoners can’t help but be condescending or oblivious. Money is blinding, White tells us.

There are few people to root for in these outings. That was also true for the crowd in Succession, but the Roys were deliciously devious in a Shakespearean fashion. The White Lotus guests are mostly annoying. And White loves to interrupt the action with shots of the roiling sea, cultural artwork featuring visages of ancient gods, and animals gazing at the humans. It’s poetic imagery, telling us there’s much under the surface, the gods see all, and even animals are intrigued by our folly. It’s also a little too much. But his depictions of the gorgeous environs are incredibly satisfying eye candy. Watching the latest band of ORP cruise past the lush islands of the Thai coast on a supersize yacht has juiced my wanderlust.

In the current season, a Hollywood actress and her two besties, a North Carolina financier and his wife and three kids, and a seedy mystery man and his British his gal-pal, visit the White Lotus resort in Thailand. The fun-chasing threesome is riven with deep-rooted conflict and pettiness. The businessman is facing big trouble back home (the FBI is in my office?!) and not telling his family (which includes an especially obnoxious older son played too well by nepo-baby Patrick Schwarzenegger), and mystery dude won’t share with his ditzy girlfriend the real reason they’re in Thailand. Meanwhile, a local who guards the entrance to the hotel (and who’s enamored with an employee who may not feel the same for him) gets into hot water for failing to prevent a robbery. And a wellness coach from the Hawaiian White Lotus is here to pick up a few new tricks from the Thai mind-and-body experts. At one point a gun goes missing. You know what Chekhov said.

White Lotus is both aggravating and enticing. I do want to know who bites the dust—and who did the deed. I just don’t want to spend eight episodes with these folks to find out. Yet I will.