How Trump Is Trying to Kill Press Freedom
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Why don't you go ahead and introduce yourself? Say your name. Tell me who you are, what you do. My name is David Enrich, and I am the business investigations editor at The New York Times. And I am the author of a new book called Murder to the Truth.

When I sat down with David earlier this week, I started by reading him a little bit of a filing with the Federal Communications Commission. The filing's from Monday, from CBS Broadcasting, asking the FCC to reject a complaint about its show 60 Minutes. Here's what it says.

The complaint filed against CBS for, quote, news distortion envisions a less free world in which the federal government becomes a roving censor, one that second guesses and even punishes specific editorial decisions that are an essential part of producing news programming.

That's like a barn burner of a statement to find in a little filing, huh? Yeah, it's pretty good. It sounds like they've got some lawyers with good writing skills and a clear sense of purpose.

CBS and its parent company Paramount are in a standoff with the FCC and President Trump over a 60-minute interview from last fall. And we're going to get deep into that case in a minute. But before we do, it's important to understand that the outcome might well determine the future of a free press in America. ♪

What we've seen in the past two months with Trump in office or the past four months since the election is just absolutely extraordinary. And if you had asked me to rate the probability of something like this happening six months ago or a year ago, I would have laughed at you. I think it is really hard to overstate the scope and severity of what is going on right now. And

You know, the CBS case has its own nuances and complications, not least of which is that CBS, while making statements like that, their parent company has been talking with Trump about settling their lawsuit. But I think there is no doubt based on what we've seen out of the White House, it seems like virtually every day that they are actively at war with the media in a way probably without precedent in U.S. history. How much press freedom is on the line? All of it.

Most of it? Much of it? Press freedom, like many other freedoms in the Bill of Rights, are sometimes kind of hard. It's not like an on-off switch, black or white, right? It's on a spectrum and there are shades of gray and there often are shades of gray that are very hard to recognize in the moment. It's only with hindsight when you see how far things have moved that it becomes apparent what we've lost. And

Look, what I know based on the reporting for this book is that it has become, even with the Constitution existing and some very important Supreme Court precedents existing, it has become increasingly dangerous from a legal, financial, and mental health standpoint to do, to investigate or even scrutinize or criticize the conduct of rich and powerful people in this country as a journalist or as just someone who is an active and engaged citizen. Today on the show...

David takes us inside the conservative campaign to weaponize the FCC, destroy a free press, and weaken the First Amendment. I'm Lizzie O'Leary, and you're listening to What Next TBD, a show about technology, power, and how the future will be determined. Stick around. This episode is brought to you by Discover.

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Tune in to Tech Unheard from ARM and NPM, wherever you get your podcasts. The incident that kicks off this story is a 60 Minutes interview with then-Vice President Kamala Harris from last fall, with a question from correspondent Bill Whitaker about the war in Gaza. What can the U.S. do at this point to stop this from spinning out of control? Well, let's start with October 7. 1,200 people were massacred.

250 hostages were taken, including Americans. Women were brutally raped. And as I said then, I maintain Israel has a right to defend itself. We would. And how it does so matters. The interview was edited. Standard practice for broadcast news. In the unedited interview, Harris seems to struggle for a more concise answer. Well, let's start with October 7th.

because obviously what we do now must be in the context of what has happened. And as I reflect on a year ago, and that 1,200 people were massacred, young people at a festival, at a music festival. The gist of what she said was the same. A little more word salad, but no deviations in policy.

The interview also took place over multiple recording days. Again, something that's standard in TV news.

But for the online right, it was a sign that CBS edited the interview to make Harris look better. And so this started kind of echoing through the conservative ecosystem. Elon Musk picked up on it and then Donald Trump picked up on it. And Trump's lawyers, I believe a week before the election, filed a lawsuit against CBS in federal court in Texas, not accusing them

of defaming Trump, which is his normal legal argument, because this had nothing to do with Trump. They accused CBS of basically violating state consumer protection laws in Texas that are meant to prevent things like deceptive advertising. And they argued that because this interview had been, had been deceptively edited, it was a part of, uh, an illegal campaign to trick, uh, Texas voters into supporting Kamala Harris. Now there are like a thousand things wrong with that argument. Uh,

But the biggest one that's wrong is that CBS eventually released the full unedited transcript of the interview as well as video, unedited video of the transcript. And it was not deceptively edited. It was they had picked different parts of the same answer to air on different programs, but they were more or less contiguous. And there was no editing of the substance of what she said. At the same time.

An outside group affiliated with Trump brought a complaint to the Federal Communications Commission saying CBS was not acting in the public interest. Here's where it gets tricky. CBS's parent company, Paramount, needs the Trump administration's help. Paramount wants to merge with the entertainment company Skydance. It is a multi-billion dollar deal. And the FCC, led by Trump appointee Brendan Carr, has to approve it.

Trump, of course, knows this. This is a classic example of the legal system being weaponized by Trump and his allies to exert a lot of pressure on news outlets to kind of pull punches in the way they're covering him. And if they don't, to use the great power that the Trump administration has to affect the kind of future businesses of

or to affect the finances of these businesses. Do what we want or you won't get your merger. Yeah, the funny thing about this one is that they have not said that explicitly. I don't think they really need to. And the reason I think they don't really need to is because the messages that my colleagues and I hear out of, from Paramount, CBS's parent company, are that they want to be settling these cases, making them go away, at least not entirely because they're so, they fly so directly in the face of the First Amendment.

but because they are concerned that the Trump administration will block this planned multibillion-dollar merger that will greatly enrich Paramount's controlling stakeholder. So... Sherry Redstone. Sherry Redstone. So Paramount has... The tension here is that Sherry Redstone has billions of dollars on the line, and CBS has its journalistic scruples on the line. And based on the reporting I've done and my colleagues have done, and other outlets as well,

If CBS settles this case or if Paramount settles this case, there is going to be an up and up rebellion among the journalists at CBS. You know, I think if you are a casual observer, you might view this back and forth over the 60 Minutes lawsuit.

or the suit against ABC News by the president or, say, meta platforms as things that all kind of happen to look alike. They're sort of similar. But what stands out from your reporting and from your book is that

They don't just happen to look similar. Is it fair to say they're part of a plan? Yeah, 100%. There's no question that Trump, since he first came on the scene nine years ago now, has

has been on a crusade to delegitimize and weaken the news media. And part of that has just been him trying to whip up populist furor and rally people against the elites, which is kind of a time-tested tradition from politicians of both parties. But a lot more of this is that Trump, in his first term, in his first run for the presidency, and even more so now, he and his white house have been relying on lies and conspiracy theories and distortions of facts.

to try and advance their agenda. Well, it is really hard to do that when you have a vigorous independent news media that is acting fearlessly and is going to refute those lies and distortions and conspiracy theories. And so it's, I think that is a big part of the reason that Trump and his allies have been so determined to put the media back in the pen and to weaken the protections that allow the media to operate without fear of being sued if they accidentally get a fact or two wrong about someone.

The case that established those media protections is a landmark ruling from the Supreme Court. It's a 1964 case called New York Times v. Sullivan, and it protects journalists who are making a good-faith effort to do their jobs, even if they make an honest mistake when reporting on a public figure.

It created a standard that's come to be known as the actual malice standard. It says that if you're a public figure or a public official, the only way you can win a defamation case against a journalist or a news outlet or just a member of the public or anyone else who says something is if you can, you not only have to prove that you were defamed and that the underlying facts were wrong, you need to prove that the person who wrote or said the offending remarks knew that what they were saying was false. So in other words, they lied.

or acted with reckless disregard for the accuracy of what they were saying. And the reasoning behind that was not to allow journalists or anyone else to defame powerful people with impunity.

It was responding to a very clear threat that had emerged, which was that Southern officials were trying to preserve white supremacy in the South by suing media outlets that wrote about the civil rights movement. And those threats were becoming effective. They were leading news outlets like the New York Times to pull their reporters out of places like Alabama. And the Supreme Court saw that as a clear violation of the First Amendment's guarantee of a free press. And

So the idea was to basically create some breathing room for journalists and anyone else when they're writing or speaking about powerful people, so that if you get a fact wrong, as long as you didn't do it on purpose or super recklessly, that is not grounds to win a lawsuit. When we come back, inside the conservative movement to destroy New York Times versus Sullivan.

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What is so interesting about your book is the campaign to undercut or destroy Sullivan. When did the Sullivan case begin to come under deliberate attack? You can trace it very directly back to the arrival of Trump on the national scene. And there for many years, decades, in fact, after Sullivan died,

There was broad bipartisan unity consensus that it was the right decision to protected not just the media, but activists of from both the left and the right. It protected large media, small media, liberal media, conservative media, and everyone agreed that that was really important. And, um,

Yeah. In 2016, Trump, just as his candidacy was really gaining traction in the primaries, arrived in Fort Worth, Texas for a speech. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws.

It was easy to dismiss what Trump said because it's not up to the president or Congress, much less a presidential candidate, to change libel laws. That's a question of the Supreme Court's interpretation of the First Amendment. Nonetheless, he really, in uttering those words and then repeating those words over and over again,

it really started a bit of a national conversation on this topic and inspired a bunch of conservative lawyers and activists and scholars to start doing research and kind of finding grounds to attack Sullivan, studying case law, and starting to bring cases that were obviously designed to win in court, but failing that could potentially be used to

to get the Supreme Court to take a second look at the Sullivan decision and some of the subsequent precedents that kind of further cemented its status. One important test came from a woman named Kathy McKee. She came forward in the mid-2010s and accused Bill Cosby of raping her decades earlier. Cosby denied the allegations, and his lawyer wrote a public letter calling her a liar. So she sued Cosby for defamation.

That defamation suit was dismissed in both the district court and a federal appeals court on technicalities. And then a guy named Charles Harder, a lawyer, latched himself onto this case. And Harder was, at that point, very famous for having represented two people. One was Harvey Weinstein, and the other before that was Hulk Hogan, when Hulk Hogan, with Peter Thiel's financial backing, destroyed Gawker. So Charles Harder defamed

attaches himself to this case and decides that he's going to help file a petition with the Supreme Court asking them to hear McKee's appeal. And the petition that Harder and his colleagues file has nothing to do with really with the particular facts of McKee's case or even whether or not she technically was defamed. It was inviting the Supreme Court to basically reconsider the Sullivan decision.

And or at least the solvent decision and the way it was being applied. And this kind of circulated within the Supreme Court for a period of a few months until finally in early 2019, the court announced unanimously that the justices had decided not to hear the case.

And there was one kind of caveat to that, which was that Thomas, instead of just saying, I too agree, we should not hear this case, took this opportunity to write a lengthy opinion calling for the reversal of Sullivan. And again, his opinion also had nothing to do with the facts of McKee's case. In fact, he agreed that it was not a good candidate with which to review Sullivan. But he basically issued this like open invitation, what someone referred to me recently as a bat signal that he sent out, saying, you know,

please, please find me and bring me another better, stronger case that I can use to kind of build a consensus on the court with which to attack Sullivan. I have what he wrote in front of me and it says, New York Times, he's talking about the case, and the court's decisions extending it were policy-driven decisions masquerading as constitutional law. To me, the thing that is a giveaway to Thomas's kind of bad faith interpretation of this

is that it's true that there's no mention of libel or defamation in the First Amendment. It's also true that there's a common law history going back to England where libelous speech is not protected, or is not considered a safe form of speech. Those things are true. Yeah, they're very different media laws than we do. Yeah, they do. And there is some argument to be made that in early U.S. history, there were different media laws, and maybe that is what the framers meant. That being said...

The notion that someone like Thomas would argue that we need to have a super strict kind of literal textual interpretation of the First Amendment is laughable because Thomas in case after case

that suits his political interests has concluded exactly the opposite. And you can look at his free speech cases about campaign finance law, for example, where he argues that corporations are people that deserve free unfettered speech rights in the form of spending their money. And again, maybe you can, there can be a legitimate disagreement about whether that is a good interpretation or not of the constitution, but there's no way to say, I'm going to have a super strict interpretation of the first amendment when it comes to libel law,

And then this other interpretation of the same exact 45 words of the same amendment to conclude that there's no way to restrict this type of campaign finance speech. So here we are now in 2025, in the second Trump term. Who is answering the bat signal? The bat signal is being answered by conservative lawyers, conservative interest groups, conservative think tanks, conservative politicians.

and most of all, conservative judges. And there have been a number of other cases where Thomas has repeated and expanded on his desire to overturn Sullivan. He's picked up the support of at least one other justice, Neil Gorsuch. He's picked up the support of a bunch of other federal judges at both the appellate level and the district court level, and a whole bunch of state court judges as well who have, in opinions, in defamation cases, have noted Thomas's...

Thomas's opinion in the McKee case and other cases has evidence that the libel laws in this country need to be kind of reined in and it needs to be easier for public figures to sue the media, even when they are just being sued over innocent mistakes. So there is, I mean, there is,

There's a clear trend of lawsuits and legal threats being weaponized against journalists right now in this country. And there's also a very clear trend of some of the same lawyers and activists who are bringing those threats and filing those lawsuits of campaigning at both the state and federal level to dilute the protections that the media has. And

The result of that is that it's become an increasingly kind of hostile and dangerous place to be a reporter from a legal perspective. And that's not, there's nothing to do with me. I work at the New York Times. I'm fine. This is just at a local level, independent journalists and local news outlets are being pushed to the brink of extinction regularly by these tactics. And I think in some ways it's by design. I mean, you, as you say, work at probably the most powerful news organization in

In the world, if in the country, certainly, if not the world. But I'm thinking about the Clarksdale Press Register in Mississippi, where a judge issued a temporary restraining order that the city requested requiring a local newspaper to take a critical editorial down.

Do you see the line there from what you're reporting on to this? This is the fruits of this years-long campaign to give legal and constitutional cover to judges and legislators and plaintiffs all over the country to push the envelope on First Amendment and freedom of the press protections. And judges are humans, and they are influenced by...

the media and by the opinions of their other judges and by the pressure they receive from people whom they respect. And so to me, the fact that we have been kind of normalizing these lawsuits, normalizing these attacks on Sullivan, it gives judges, especially judges at a state level who generally operate without a huge amount of scrutiny, it gives them intellectual license to take a

slightly different approach to legal matters. You and I work in an industry that has not had a great few years, 10 years, I don't know. I've been doing this for 20-ish. And as I have been contemplating this, so much of me wonders how much of that is also by design. Like on the one hand, I hear complaints from readers and listeners. I'm like, okay, yeah, sure. You know, we also...

deserve to be held to account. But are some of these complaints astroturfed? I think as a starting point, it's important to acknowledge, as you just basically did, that we as journalists and we as the media industry are flawed, right? We make mistakes. We have biases that lead us to go too hard or too soft on people. We miss lines of coverage. We overemphasize other lines of coverage. This isn't just a matter of getting facts wrong occasionally. Sometimes there are big structural problems that

lead us to make mistakes. And we far too often, in my opinion, and by we, I mean the media writ large. I'm not talking about any individual news outlet. But I think far too often, we are not good at holding ourselves accountable and being transparent with readers when we've screwed up and explain to them why we've screwed up. Like what went wrong? And so I think that is a big contributor to the declining trust that we are seeing in the media all over the country. But, and this is a really important but,

The people who are weaponizing that are doing so in bad faith. These are people that generally know, they generally have experience with journalists. In some cases, they're journalists themselves, and they know that by and large, there certainly are some exceptions, but by and large, journalists are doing their best to capture the truth

and to hold powerful people and institutions to account. And that while we do make mistakes, that those mistakes are not generally the result of malice. They're the result of us being humans. And humans are imperfect and we make mistakes. And so I think there's a very concerted and quite clear campaign, especially on the right, to...

to seize on any example they can find, whether it's a mistake by a news outlet or just coverage that they find objectionable or cases where someone's getting sued for something and to seize on those, to paint a broadly inaccurate picture. And I think a deliberately distorted picture often of a media that is reckless, out of control, deeply and irrevocably biased and biased.

one direction or another, and that we are not to be trusted under any circumstances ever. And that is, for all of the media's many sins, that is, I think, a grossly unfair criticism. What happens if Sullivan goes away? If Sullivan goes away, powerful people get away with a lot more stuff. And by powerful people, I mean...

your politicians, your billionaires, but also your local real estate developer and your local city council. And it becomes much harder, in some cases probably impossible, for news outlets, especially smaller independent ones, especially new ones, to be able to write critically and aggressively about

and to scrutinize the affairs of people that they cover because they know that one little mistake without Sullivan could leave you vulnerable to ruinous litigation. This is a question of whether when you make innocent mistakes, you risk being sued into oblivion and what the natural response to that

phenomenon is with journalists where they realize that they run such a huge risk of getting sued that they are going to steer away from certain lines of coverage or writing about certain types of people and that that chilling effect will have i think a very real and very rapid effect on who gets covered and how and is going to accrue to the benefit of rich powerful people and institutions that have things that they're trying to hide

David Enrich, thank you so much for your work and for coming on. Thank you for having me.

David Enrich is the business investigations editor for The New York Times. And that is it for our show today. What Next TBD is produced by Evan Campbell and Patrick Ford. Our show was edited by Elena Schwartz. And Slate is led by Hilary Fry. TBD is part of the larger What Next family. And if you like what you heard, the number one best way to support what we do here is to join Slate Plus.

You get all your Slate podcasts ad-free, including this one, and some other great stuff, like no hitting the paywall on the Slate site. All right, we'll be back next week with more episodes. I'm Lizzie O'Leary. Thanks for listening.