Trump’s Attacks on the Press and Freedom of Expression

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Speaker 1 Hi, everyone, from New York Magazine and the Vox Media Podcast Network. This is on with Kara Swisher, and I'm Kara Swisher.
President Donald Trump loves bashing the press.

Speaker 1 In In fact, it's his favorite sport. Those attacks helped him win the presidency in 2016 and they formed a core of his appeal.
But the onslaught is no longer just rhetorical.

Speaker 1 Trump is using lawsuits to intimidate the press and he's inspired a conservative legal movement to overturn the Supreme Court case that sets a high bar for proving defamation.

Speaker 1 And his assault on the press is part of a larger pattern of intimidating freedom of expression on multiple fronts, including against the legal profession, universities, and even corporations that implement DEI.

Speaker 1 So I'm speaking with a a panel of exceptional journalists to break it all down.

Speaker 1 David Enrich is the business investigations editor for the New York Times and author of a very timely book, Murder the Truth, Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.

Speaker 1 Ruth Marcus was a longtime columnist for The Washington Post and also a fantastic reporter who recently resigned after one of her columns was spiked.

Speaker 1 Since then, she's been on a tear writing brilliant pieces for The New Yorker, and I've known her for a very long time. And she's, again, a tremendous journalist.

Speaker 1 And Ben Mullen is a media reporter for the New York Times who's constantly getting scoops on the news biz. So stick around.

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Speaker 1 David, Ruth, Ben, thanks for coming on. Thanks for having us.
Thanks for having us. So, each of you, how would you describe the current state of news media in America?

Speaker 1 The 2024 World Press Freedom Index ranked America 55th out of 180 countries and labeled it as problematic, and that was before President Trump took office for the second time.

Speaker 1 Is that accurate, alarmist, or are things even worse than that ranking suggests? Let's hear from all three of you, starting with Ruth, then Ben, then David.

Speaker 3 Kara, I saw this word the other day, parless, P-A-R-L-O-U-S, in case anybody wants to work on their S-A-T verbal scores. And it means fragile and endangered.

Speaker 3 And I think that really captures where I think the news media is. I think we're getting incoming from two directions at once, and I know we'll talk about both of them.

Speaker 3 One direction is something you know about way better than I do, which is our

Speaker 3 collapsing or collapsed, or at least needs to figure out a way for newspapers like the Washington Post, which I just left, to regenerate our collapsing business model.

Speaker 3 And that is the kind of separate but

Speaker 3 at least equally scary incoming from an administration that describes us as enemies of the state and is going to use whatever powers are within its purview or more than that because it will assert powers it doesn't have to try to cow and intimidate us into submission.

Speaker 3 So that's my cheery thought.

Speaker 2 Parlus.

Speaker 2 Okay, good.

Speaker 1 Okay, good. Ben?

Speaker 12 I agree completely with Ruth. I think the economics part of this is very important.

Speaker 12 And I also, you know, it occurs to me over the weekend with the way that the White House Correspondents Association has been responding to this move from the Trump administration essentially to remove people from the press pool and to basically determine who sits in the briefing room.

Speaker 12 I've been talking to people people in the White House Correspondents Association who basically are very concerned with the way this is being handled. And so I do think,

Speaker 12 you know, after 2016 and the Trump 1.0, I think people thought that the media more or less kind of was aware of how to cover Trump.

Speaker 12 But I think a lot of the things that the White House is doing right now is catching the press on its back foot. And so I think generally speaking, the press had years to prepare.

Speaker 12 And in some cases, I don't think they really are ready. And the last thing I would say is, I think some of this has to do with leadership.

Speaker 12 You know, the problem, I think, is that for a very long time, the best and the brightest in the media, there was a succession plan. There was great people joining the media.

Speaker 12 But I think a lot of the problem right now is that the bench is a little small. And a lot of the best and the brightest maybe aren't going into media anymore.

Speaker 12 You know, they're going into places whose business models haven't been as eroded. And so

Speaker 12 I think that's a big struggle.

Speaker 1 That's a really good point. David?

Speaker 4 I mean, I think it depends what you mean by the media and by the press. And I think there is a kind of a barbell effect going on right now.

Speaker 4 There are some very big establishment news outlets like where Ben and I work that are thriving. And I think, you know, we're imperfect.

Speaker 4 We make a lot of mistakes, but I think by and large, we do a pretty good job. And then there's a lot of stuff in the middle that is really struggling.

Speaker 4 But then there's this proliferation of independent voices right now that I think is a really healthy sign for journalism and for democracy, frankly.

Speaker 4 And I think that, I mean, it's parless to use Ruth's word in that, you know, independent journalists, for the most part, are susceptible to the threats coming from the White House and the threats from legal action and things like that.

Speaker 4 But I think it's a real opportunity right now for the media writ large to be kind of thinking about new opportunities and kind of embracing this explosion of diversity and new voices that we're seeing, which I think.

Speaker 4 They are small though i having started many of them for many years they're small you're small they are small businesses in terms of comparatively compared to the large they are but they can wield a lot of influence and and one of the things i've just seen i've become a fairly uh enthusiastic user of Blue Sky.

Speaker 4 And I've seen a lot of voices who I had never heard of before, which is probably a failing on my part, that are breaking a ton of news.

Speaker 4 And they're doing it in a way that is not the way the New York Times or the Washington Post or the Wall Street Journal would do it.

Speaker 4 They're doing it direct to their viewers and their readers, and they're rebuilding trust in a way that I think the mainstream media has really struggled mightily with over the past years.

Speaker 1 We'll talk about trust in a minute because I think it goes hand in glove to the ease of attacks. But let's talk about the environment the news media is operating in.

Speaker 1 We just covered a couple of things: the economic problems, the pressure, and everything else.

Speaker 1 Ben, the FCC chair, Brendan Carr, has ordered investigations into Comcast, Verizon, ABC, NBC, NPR, CBS, and YouTube TV.

Speaker 1 Democratic Senator Blumenthal calls them unprecedented and intrusive investigations against media broadcasters under arbitrary and capricious pretenses.

Speaker 1 Just for full disclosure, I call Brendan Carr an uncuous toady.

Speaker 1 Give us your reaction.

Speaker 12 I think

Speaker 12 many media companies are afraid of Brendan Carr. I mean, we saw Paramount announce its rollback of its DEI policies.
We saw Disney do the same before Brendan Carr's investigation.

Speaker 12 Paramount obviously has a merger it needs to get through.

Speaker 12 And so I think one of the things you're seeing is many of these companies are

Speaker 12 taking a hard look at their DEI policies in part because they all are going to have business before the federal government, particularly Brendan Carr, and they probably don't want to run afoul of him.

Speaker 4 Can I try and put a finer point on this? And I don't think this is about DEI that much.

Speaker 4 I think this is about the Trump administration in general, trying to find any points of vulnerability and weakness that news outlets have, whether the large newspapers or large broadcast networks, and trying to pressure them and trying to make their life uncomfortable.

Speaker 1 In that vein, the Associated Press is banned from the White House press pool. Trump's upset that it won't refer to the Gulf of Mexico as the Gulf of America AP sued.

Speaker 1 And as executive editor Julia Pace put it, the lawsuits isn't about the name of the Gulf, but quote, it's really about whether the government control what you say. Talk about that example.

Speaker 1 Why ban the AP over something as trivial as the name name of the Gulf? And what's the larger strategy?

Speaker 4 They're doing it because it allows them to flex their muscles and it sends a very loud message, not just to the AP, but to every other news outlet and journalist in America, that if you write things or say things that are not in line with what the Trump administration wants you to, they are going to consider using their enormous levers of power to get you to comply.

Speaker 4 And it's not just the AP, right? I mean, Trump has personally sued CBS News and the Des Moines Register and their pollster.

Speaker 4 He has issued a variety of other private legal threats against major news outlets. He has his FCC chairman, as we just said, exerting a lot of pressure.

Speaker 4 So this is a really multifaceted assault, I think, by the administration on journalism.

Speaker 4 And they're trying to get people scared that if they speak up or investigate or are critical or do not get in line, that there could be real potential consequences.

Speaker 1 Yeah. Go ahead.

Speaker 3 They are getting,

Speaker 3 it's not just that they're trying to get people scared. They are demonstrably getting people scared.
You see the spate of settlements, and I'm using air quotes here by ABC, essentially payoffs to

Speaker 3 the Trump or Trump-related entities in order to avoid harm to businesses that are extraneous to the media companies that are or the news organizations that are at the center of this.

Speaker 3 And I I think it shows one of the harms of having news organizations housed within larger, sprawling corporate enterprises or related to larger, sprawling corporate enterprises.

Speaker 3 But I want to make one more point, which is this is this is a multifaceted assault on the news media, but it is not simply an assault on the news media.

Speaker 3 There is a similar parallel assault on other vectors of possible opposition to the Trump administration. We see an assault on law firms.
We see an assault on judges. We see an assault on universities.

Speaker 3 This is all of a piece because if you can scare enough people against standing up to you, then you can run roughshod over constitutional rights.

Speaker 3 And this, and I, for people who don't know me, I am not normally an alarmist person, but I am in high alarm because of the totality of this assault.

Speaker 1 Okay, let me ask you specifically, the Trump administration is working on dismailing the U.S. Agency for Global Media.

Speaker 1 In response, a recent Wall Street Journal opinion headline read: Defunding Voice of America is a win for China and Iran.

Speaker 1 Ruth, you recently posted on Blue Sky, thinking today of all the fine journalists at Voice of America, Radio for Europe, and elsewhere who can no longer do their excellent and indispensable work.

Speaker 1 Talk about the indispensability, because I think a lot of people don't understand it or think it's an anachronism from the past. What's the larger strategy here?

Speaker 1 Killing Voice of America doesn't actually save much money.

Speaker 3 This is, as with killing USAID,

Speaker 3 this is number one, not in any way about saving money because the amounts are trivial.

Speaker 3 And number two,

Speaker 3 this is a use of American soft power to show other democracies and other nations that journalism, that free, objective, unfettered by the government journalism,

Speaker 3 what it can bring to a society.

Speaker 3 And now in another one of these things that is going to hurt our country in the long run because it's turning us from, I'm just going to continue to sound overwrought here, from a beacon of democracy into

Speaker 3 an instrument of repression.

Speaker 3 We are shutting down independent, trusted voices, and we are showing ourselves to be not the shining example, but an example of what happens when you interfere with free journalism.

Speaker 1 So, Ben, last week you covered a congressional hearing on PBS and NPR where Republicans accused the public broadcasters broadcasters of liberal bias.

Speaker 1 Most of them quoted Yuri Berliner, by the way, a very grumpy person in my experience, a former senior editor for NPR who wrote an expose last year. I'm not even going to call it an expose.

Speaker 1 It was just a rant. It was a grumpy rant.
According to him, NPR's DC office employed 87 registered Democrats and zero registered Republicans. Talk a little bit about this because also

Speaker 1 Trump and others are calling out the head of NPR, Catherine Mayer, and somehow trying to link her to SignalGate because she's on the board of Signal

Speaker 1 and for calling Trump a fascist, which she also did. But talk a little bit about that.

Speaker 12 Right.

Speaker 1 Because they don't get a lot of their money from Congress. That's right.

Speaker 12 NPR gets between, depending on how you slice it, gets between, I think, 1% and 5% of their money, either directly or indirectly from the Corporation for Public Broadcasting, which is the government-funded organization that funds public media in the U.S.

Speaker 12 And so... When I interviewed Marjorie Taylor Greene, I think two weeks ago, ahead of these hearings, the point that she made was, well, they shouldn't receive any funding.

Speaker 12 And if it's only 1%, well, then they can do without 1%.

Speaker 12 But if you talk to people on the other side, what they say is that for every dollar that's given to one of the local public media stations, they are able to fundraise basically $7 to match it.

Speaker 12 So they view that public funding as kind of a kernel around which they build their business. Crucially,

Speaker 12 public media in the United States, if it's defunded, it's not going to affect probably the national organizations NPR and PBS as much.

Speaker 12 What it will affect is the local stations in very rural areas, which are news deserts that actually do need to be served by public media.

Speaker 1 But what about the idea that public media is biased against conservatives? I mean, there are points to be made. A lot of people are Democrats.

Speaker 1 I think they're very fair, both of them, and in fact, have a whole panoply of stuff that has nothing to do with politics.

Speaker 1 How do you push back on that notion?

Speaker 12 Well, the objections that were raised during the hearing were around NPR's coverage of the Hunter Biden laptop story and around the reporting around President Trump's campaign's connections to Russia.

Speaker 12 Interestingly, during the hearing, Catherine Maher made an admission that I don't think I've seen her make elsewhere, which was that NPR kind of aired in its coverage of the Hunter Biden laptop story.

Speaker 12 So that was a notable admission, and people at NPR basically took note of that.

Speaker 12 But I think some of these accusations that Catherine Marr is some kind of secret intelligent plant or that she was in an earlier point in her career. That stuff is obviously not true.

Speaker 1 But is it getting traction or is it just a feint to be able to remove NPR and others from the field?

Speaker 12 Well, on the day after the hearing, on Thursday, Ronnie Jackson, who I believe is President Trump's former personal physician, put forward a bill essentially

Speaker 12 that would defund NPR and PBS. So I think this is real.
I mean, I think there's a real chance this could happen.

Speaker 1 Which they've tried for years.

Speaker 4 Well, what I was going to say is that there is, look, the media, including NPR, certainly including the New York Times, including the Washington Post, we are imperfect. We screw up.
We make mistakes.

Speaker 4 We're not always the best at acknowledging those mistakes. We have biases.
And sometimes those biases lead us to come down too hard on someone or too soft on someone.

Speaker 4 But in general, in my experience, the journalists and news organizations are operating in good faith. And yes, we're imperfect, but those mistakes are honest ones.

Speaker 4 What is not in good faith are the attacks that are coming from the likes of Marjorie Taylor Greene. She knows full well that journalists are doing their best.

Speaker 4 She disagrees with some of what they produce, but this is, I really, I keep coming back to the fact that this is, this is a broad campaign that is designed to undercut the credibility and to, frankly, delegitimize news outlets like NPR, not because people think that they are ideologically biased, but because they are doing their best to report the truth and correct distortions and lies.

Speaker 4 And frankly, a lot of what is coming out of the Trump administration over the past two months have been distortions and lies that they're using to promote their agenda.

Speaker 4 And so I think this is part of a broad effort to delegitimize and weaken institutions and individuals that are really kind of speaking truth and trying to correct and refute the deliberately wrong statements that are often coming out of the administration and coming out of people like Marjorie Taylor Greene.

Speaker 1 We'll be back in a minute.

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Speaker 1 All right, let's pivot and focus on the legal environment the media is operating in.

Speaker 1 David, your book, Murder the Truth, Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, is about the attempts to overturn and chip away at New York Times company versus Sullivan, the Supreme Court case that establishes a high bar for proving defamation.

Speaker 1 Talk a little bit about the secret campaign mentioned in the subtitle and how it operates.

Speaker 4 Well, this started kind of organically with a bunch of lawyers who sue the media and threaten the media for a living, really becoming increasingly outspoken about the fact that New York Times versus Sullivan creates a very high bar for such lawsuits by public figures to win.

Speaker 4 And they started chipping away at it.

Speaker 4 The real kind of crucial moment came when Clarence Thomas in 2019 added his voice to this chorus calling for it to be overturned or at least narrowed. And since then, it has just really exploded.

Speaker 4 There's been a whole bunch of conservative legal groups that have jumped on the bandwagon. There have been judges at the federal and state level all over the country who have embraced this idea.

Speaker 4 And there have been lawyers all over the country who have been inspired by Trump, by Clarence Thomas, by others, and have started bringing legal actions, not just against the likes of the New York Times or the Wall Street Journal, but against smaller news outlets and independent journalists.

Speaker 4 And oftentimes, these it's basically putting giving a choice to independent and smaller outlets where they either comply and walk away from critical coverage or investigations of powerful local people, or they risk getting sued into oblivion.

Speaker 4 And my book kind of goes through a bunch of these examples, but that's happening. And it is driving places and people out of business.

Speaker 4 And it is essentially a quiet form of censorship that's occurring all over the country. And

Speaker 4 I mentioned earlier just the great trend that we're seeing with this explosion of independent voices on Substack or on podcasts or whatever.

Speaker 4 And it is those voices that are at unique and I think kind of existential risk from this emerging type of lawfare that we're seeing.

Speaker 1 Right. But it's not just small independent companies.
Disney, ABC News' parent company settled defamation lawsuit brought by Trump.

Speaker 1 That was when Trump sued after George Stephanopoulos incorrectly said that Trump had been liable for rape. Ben, this was seen as a very winnable case for ABC.

Speaker 1 Talk about why they settled and what does it say about Bob Iger and the rest of their corporate leadership?

Speaker 1 On one hand, I can see why they did it because he said it a lot.

Speaker 1 On the other, maybe there were texts or something like that that were problematic. But

Speaker 1 how do you look at it? Because most people thought ABC would have won this hands down.

Speaker 12 Yeah, I think that's the consensus from a lot of First Amendment lawyers that I've heard from is that ABC probably would have won that case.

Speaker 12 I was hearing from people at the time that, and I think this may have been reported in the New York Post, that George Stephanopoulos

Speaker 12 had been warned by somebody on the production side ahead of time on this specific point.

Speaker 12 And if that were true, then it would have made his argument a little more difficult relative to whether he had actual malice when he reported this.

Speaker 12 Because if he was warned, the other side might be able to argue that he had displayed reckless disregard for truth.

Speaker 12 So there's some stuff that we don't know that may have been unearthed in Discovery that could have made things difficult for Disney.

Speaker 12 But I think the perception from people outside was that Disney did not want to pick a fight with President Trump, basically.

Speaker 1 But Ruth, during the 2016 election, Trump actually sat down with you and the rest of the Washington Post editorial board and discussed comments he made about wanting to open up libel laws.

Speaker 2 This is with 2000.

Speaker 1 This is something he's put on his line. According to David, those comments have now metastasized into this larger political and legal movement.
At the time, what was your takeaway from that meeting?

Speaker 1 Did you ever imagine we get to this point where Sullivan is actually under threat? And let me add, is it under threat? What is the appetite? You know, talk about previously and then now. And

Speaker 1 what about the rest of the course? Obviously, Thomas has been open

Speaker 1 about overturning Sullivan. Even Justin Justin Kagan has written skeptically about Sullivan.
We could have another abortion situation here.

Speaker 3 We could, and David knows way more about this than I do. But at the moment, I do not count up the votes on the court to overrule New York Times v.
Sullivan.

Speaker 3 There may be some votes, but I still think probably not a majority to severely limit the protections of New York Times v. Sullivan.
But I don't think that should make anybody feel complacent.

Speaker 3 The reason is that

Speaker 3 even with the protections of the case, and David alluded to this, the situation that we face is that, as we see, major media organizations, particularly those with extraneous businesses, have every reason to be cowed by this administration, which is going to use its power in very malevolent ways to bully people into submission.

Speaker 3 Big media organizations are going to be intimidated.

Speaker 3 And let me tell you, the smaller ones, the individual people with substacks, they could face, as David suggested, ruinous moments if they are gone after, even under the high standards that we have now.

Speaker 1 When he said that at the time, what did you think? Why did you ask about that?

Speaker 3 He had taught, well, because we cared about it. This is March of 2016.

Speaker 3 It looked at the moment like

Speaker 3 Donald Trump was going to be the Republican nominee. He had said these ominous things about cutting back the libel laws.
I wanted to understand what it was that he meant by that.

Speaker 3 I think I wrote a column immediately after that saying that he did not understand anything about the need for protections of the media and had no respect for

Speaker 3 our constitutionally defined and protected role and how dangerous it would be to cut back on the protections of New York Times v. Sullivan.

Speaker 3 I have to say the thing that I did not imagine was media organizations being as intimidated as they are.

Speaker 3 And also all of the other ways, clever ways that you don't need the courts to go along with you on that an administration that's bent on silencing opposition can use to try to intimidate all of us.

Speaker 1 Trevor Burrus So, David, you said they might not overturn it. What are the chipaway in practical terms? Give me an example.
Right. Yeah.

Speaker 4 And so, I mean, I agree with Ruth that there might not be enough votes to overturn it outright. I think a much more likely scenario is that there's some narrowing of it.

Speaker 4 So in the original New York Times versus Sullivan decision applied only to public officials, so like elected leaders, people like that.

Speaker 4 And in subsequent decisions, the court broadened it out to include public figures, so like a billionaire or a celebrity or a university president, someone like that.

Speaker 4 And so I think one of the certainly one of the things that advocates on the right are trying to do is to get the court to narrow the group of public figures, if not eliminate public figures altogether, as a class of people who are subject to these higher standards.

Speaker 4 And, you know, there are some cases working their way through the federal court system right now that might be good test cases for the Supreme Court to do that.

Speaker 4 And if they were to narrow it so it only applies to public officials or it only applies to a smaller group of public figures.

Speaker 4 I mean, that is, it sounds kind of technical and boring, but it's actually really important, I think, because it would.

Speaker 1 Yeah, as long as Elon still stays in that group, I'm going to.

Speaker 4 Well, but even Elon's probably going to stay in the group is my guess.

Speaker 4 But there's, you know, if you're a local news outlet or if you're the New York Times and you want to write about someone who is in the public eye, is in the middle of a public controversy, is holding great sway over something at the moment, you need the journalists need to.

Speaker 4 have the breathing room to be able to write about that person aggressively and critically without worrying that an honest mistake is going to open them up to liability.

Speaker 1 So speaking of that, Trump isn't just using defamation suits to attack the press.

Speaker 1 He's also using state consumer protection laws to sue the Des Moines Register in Iowa and to demand $20 billion in damages from CBS News in Texas.

Speaker 1 Ben, first explain how these suits work and then give us your prediction on what will happen with the CBS News lawsuit.

Speaker 1 Their parent company, Paramount, as everybody knows, is trying to close a merger with Skydance.

Speaker 12 So, David, correct me if I'm wrong, because I think you're more well-versed on the specific legal points than I am.

Speaker 12 But my understanding is that essentially there are consumer fraud statutes in both Texas and in Iowa.

Speaker 12 And essentially, what Trump is alleging is that when CBS News and the Des Moines Register published or aired their 60-minute segment and published their poll, respectively, they were essentially misleading consumers.

Speaker 12 And that's the basis for his claim.

Speaker 12 Now, many lawyers, First Amendment experts that we're talking to basically say that these claims do not have a prayer of succeeding in court.

Speaker 12 But the problem is that at least in the case of Paramount, there are other calculations that they've got to consider, including the fact that they have to get this merger with Skydance across the finish line.

Speaker 12 So the company insists that the settlement discussions and the discussions about the merger, which is now being reviewed by the FCC and Brendan Carr, are proceeding along separate tracks.

Speaker 12 But I have talked to executives, my coworkers have talked to executives that believe the two are essentially linked.

Speaker 12 That essentially if the company reaches a settlement with President Trump, somehow that's going to make it easier for their merger to get approved by the FCC.

Speaker 1 And the unusual situation is Larry Ellison involved here. His son is going to be running it, and there's Larry Ellison money.

Speaker 1 So, there's also that part of it that you can't push too far, I would imagine. David, is there anything else?

Speaker 4 No, I think that's and Ben summed it up pretty well. I mean, there's, I just, I would emphasize what he said at the end, which is that these are really unproven

Speaker 4 envelope-pushing legal strategy they're pursuing.

Speaker 4 This argument has never won in court, and yet it creates huge pressure on news organizations because it's really expensive to defend against litigation and it can take years. And,

Speaker 4 you know, Trump's side has made no secret of the fact that they view this as a kind of one of their promising new avenues to attack news organizations with.

Speaker 3 I just really want to amplify your point, David, about the

Speaker 3 cost of this litigation. If you are a large company like Disney or CBS Paramount, you can sustain that and you can choose to settle with millions of dollars.

Speaker 12 But

Speaker 3 the cost of defending against even the most ridiculous and unwarranted, unfounded lawsuit, I'm thinking, for example, of the one against the Des Moines Register and the pollster and Selzer, is huge.

Speaker 3 You have to get

Speaker 3 even to defeat a motion for summary judgment, you're going to be spending hundreds of thousands of dollars, maybe millions of dollars, to defend yourself.

Speaker 3 People do not have the coverage for that and the ability to dig into their pockets like that, most of them.

Speaker 3 And one of the, in addition to the point, the smart point that David was making about cutting back on the protection for public figures, another thing that can be done to really hurt news organizations is to make it even more difficult to defeat these lawsuits on a motion for summary judgment.

Speaker 3 Because if you're going to get to trial, that is going to be millions of dollars more.

Speaker 1 Yeah, so let's take a step back and talk about freedom of expression for everyone, from corporations to foreign exchange students. Co-president Elon Musk is no stranger to Lawfare.

Speaker 1 X has sued Media Matters, they've sued brands at Brands and Advertising Brand Safety Initiative after they boycotted X, which was well within their rights.

Speaker 1 They threatened to sue the ADL, the Anti-Defamation League, and last week he threatened unnamed propagandists who are supposedly causing people to hate Tesla. Let's hear a clip.

Speaker 15 It's not like

Speaker 15 the crazy guy that firebombs a Tesla dealership. It's the people pushing the propaganda

Speaker 15 that caused that guy to do it.

Speaker 15 Those are the real villains here.

Speaker 15 And we're going to go after them. And the president's made it clear, we're going to go after them.
The ones providing the money, the ones pushing the lies and propaganda, we're going after them.

Speaker 1 All right. He posted on an X that the probability is 100% that Reid Hoffman is funding the organization's attacking him, which may or may not be defamatory.

Speaker 1 Reed hit back pretty hard, saying, I'm sorry, Elon, nobody likes you, but this is the case, which is, I think, accurate.

Speaker 1 Ben, this is, he also is, I would, to me, I would focus on the crazy guy that firebombs the dealership, in my opinion.

Speaker 1 But this is coming from someone who is so upset by content moderation that he spent $44 billion to buy Twitter. What are we supposed to make?

Speaker 1 Well, I don't even love asking this because he's such a hypocrite, but of this idea of free speech absolutism, suing and threatening to sue anyone whose speech he doesn't like.

Speaker 1 This is kind of a layup for you, Benny.

Speaker 2 Go ahead.

Speaker 12 Well, I remember, I think it was 2016, I was in St. Petersburg because I was working at Pointer covering media, and the trial against Gawker was just underway.

Speaker 12 And I remember having a drink with an executive at Gawker Media who told me that he thought that there was some big billionaire behind Hulk Hogan's lawsuit against Gawker Media.

Speaker 12 And at the time, I don't think I believed it because there was no proof.

Speaker 12 Lo and behold, and David has written about this eloquently in his book, it was Peter Thiel who was financing all this litigation, lawsuit after lawsuit against Gawker Media.

Speaker 12 And so I do think this is a really serious accusation that if you're a lawyer, if you're an executive at a media company, you should take really seriously because Elon Musk has bottomless pockets.

Speaker 12 He could fund lawsuits

Speaker 12 for years and years.

Speaker 12 And the thing is, even if the law may be on your side, as we saw with Gawker Media, they couldn't afford to put up the 50 million that they would have needed to keep fighting the lawsuit.

Speaker 12 So even if the law is on your side, you could be in really big trouble if you're the target of this.

Speaker 1 We'll be back in a minute.

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Speaker 1 So, Ruth, one of the things you did write about when you left the Washington Post, we're not going to focus in on the Washington Post right here, but one of the things you did that stood out to me was the post former owner, Catherine Graham, who I hold in high regard, knew her pretty well, when she stood up to the Nixon administration.

Speaker 1 I talked a lot about that.

Speaker 1 When you look around at today's media owners, many of which are like the Elon Maz, the Bezos, Mark Cuban, do you see any Catherine Grahams or anywhere across the whole, you know, not just tech billionaires, but anywhere?

Speaker 1 And again, they're not immune either. Mark Zuckerberg settled a spurious lawsuit that Trump brought against Meta.

Speaker 1 It seemed like almost all of them, including Tim Cook, Sam Altman, Sundar Pachai, have gone out of their way to acquiesce to him. Do you see any,

Speaker 1 you know, when you were writing that, I think you and I were both hoping for a different day kind of thing.

Speaker 3 Well, I think in the parallel universe of law firms, we've seen two paths diverge in the woods. There's sort of a Harry Potter-like sorting hat

Speaker 3 among the law firms, and some are standing up to the administration, thank goodness, and some are reaching their deals with the administration because they argue that it's an existential crisis for them.

Speaker 2 Slytherin.

Speaker 1 You're just calling them Slytherin, essentially. Yeah, okay.

Speaker 3 I am not doing that, but you might.

Speaker 1 I just did.

Speaker 3 I think we have seen a number of troubling episodes at news organizations that suggest one path. And I'm not sure anybody comes to mind who is the Catherine Graham of our day.
I hope she emerges.

Speaker 1 The Rain Powell jobs.

Speaker 3 Well, I think, oh, okay, you know, let me say this.

Speaker 3 I think that Jeffrey Goldberg and The Atlantic have done a marvelous, smart, and responsible job of exposing and then standing up to an assault from the administration. So, yes,

Speaker 3 let's give her credit.

Speaker 1 Anybody else?

Speaker 4 Yeah, the New York Times has done a really good job, but I'm biased. I I work there.
I think the Wall Street Journal has done a pretty good job. And obviously, they're owned by Murdoch, and

Speaker 4 that has its own series of complications. But they've been doing aggressive and, I think, excellent accountability journalism.
And I hope they continue.

Speaker 3 And their editorial page has, at important times and on important issues, stood up to Trump. I don't and I don't want to take anything away from

Speaker 3 those news organizations that you mentioned that are standing up to Trump, but I don't think that they are facing, as Catherine Graham did, the kind of existential threat to her newspaper that existed at the time that she was saying, I don't care what you're threatening to do to my body parts.

Speaker 3 I know this is a family podcast, so I won't say the words Kara.

Speaker 1 You can say it.

Speaker 3 The Attorney General of the United States threatened to put her tit through a ringer.

Speaker 3 And Jeff Bezos famously

Speaker 3 got a ringer that is in one of the post conference rooms when he bought the newspaper.

Speaker 1 Ah, interesting. Well, we'll see if we can do that for him.

Speaker 12 And I will say this: like, I've done, and I know you have too, Kara, done a lot of critical reporting and in your case, reporting and commentary about the Washington Post.

Speaker 12 But for all of that, it doesn't seem like the actual newsroom of the Washington Post has been made to do anything it wouldn't have done before,

Speaker 12 other than it has not been able to cover itself vigorously, which has been something that it actually hasn't been able to do.

Speaker 12 But besides for that, I think the reporting, the news reporting of the Washington Post has actually held up very well.

Speaker 3 I 100% agree with that, just for the record.

Speaker 1 I would agree. I would agree, except I just don't think a morale thing is a good thing to do to people that are under difficult circumstances to make their morale as low as it is.

Speaker 1 But let me, Ben, is there anyone you can think of, a media owner who stands head and shoulders?

Speaker 12 Yeah, I would, I realize I'm biased, but I would say A.G. Sulzberger, who controls the New York Times, and David McCraw, who's our newsroom lawyer, I've interacted with him on many occasions.

Speaker 12 And he's so funny.

Speaker 1 He's so great.

Speaker 12 He's just,

Speaker 12 he's a great guy.

Speaker 1 Full disclosure, when Sean Hannity threatened to sue me, he wrote the funniest email back to him that I've ever seen.

Speaker 2 I just was like, whoa, back off, sir.

Speaker 1 Like, let's not poke the bear or whatever animal that man is.

Speaker 1 In any case, Ruth mentioned these big buffers.

Speaker 1 Both Dave and Ruth have written pieces describing how Trump's used executive orders to retaliate against firms that feel crossed by him.

Speaker 1 Some firms, as you noted, like Paul Weiss and Scatten, have capitulated. Others, like Perkins-Cooley, are fighting back.

Speaker 1 Very few big firms are signing on to an amicus brief supporting Perkins' lawsuit against the administration. Again, probably because they're afraid.

Speaker 1 Why have these executive orders been so effective at intimidating big law firms, David and then Ruth?

Speaker 4 I mean, there's a couple of reasons. One is that just on the very practical level,

Speaker 4 a lot of these firms have huge and very lucrative businesses that require interacting with the government. And they're lobbying for federal contracts for their clients.

Speaker 4 They're trying to get their clients out of regulatory trouble. And they need to be able to interact on national security level.
And so it poses a business. risk.

Speaker 4 Now, the counterargument to that is that judges keep striking down these orders or at least imposing restraining orders.

Speaker 4 So I think that the second point is the more important one, which is that these firms are scared and they are not standing up for the principles that their most of their lawyers espouse uh about the rule of law and they would prefer to strike deals that they view as relatively painless and get trump to back down and to stay on his good side

Speaker 4 than

Speaker 4 basically

Speaker 4 have their their actions match their lofty rhetoric about the ideals of the legal profession. They're worried that this is going to cost them money and they don't want to lose money.

Speaker 3 The firms are scared, but they are scared for a reason.

Speaker 3 The reason, and Perkins Cooey laid this out in its original emergency lawsuit asking for this order to put in place to prevent the president's order from taking effect.

Speaker 3 The reason is that their clients are leaving in droves. Their clients are leaving because

Speaker 3 if your business is getting government contracts, and your lawyer can't go to the government to discuss the nature of the contracts, if your business is getting this deal through the government and your lawyer can't go to the government agency that's responsible for reviewing that deal,

Speaker 3 if they have pre-existing meetings that are being canceled because they say, oh, you know, we're not allowed to meet with you under the terms of the executive order, it is a rational thing, if not a very attractive thing, for the client to say, sorry, there's a lot of other law firms out there in the world.

Speaker 3 We're going to get one of them that's not on the blacklist. This is a horrible, dangerous thing, and it's really quite analogous to what we were talking about before.

Speaker 3 If you are sued, even if the suit is ultimately thrown out of court because of Times v. Sullivan, the cost of defending against it can be ruinous.

Speaker 3 Here, the cost of the executive order, even if it's ultimately overturned, and I can't believe these executive orders will be found constitutional, they're flagrantly unconstitutional.

Speaker 3 that may not matter because your law firm can go out of business in the interim.

Speaker 1 So the Trump administration has been also going after DEI in in both public and private sector. Ben, you had a scoop when PBS closed its DEI office.
You've written about Paramount pulling back.

Speaker 1 The FCC ordered inquiries investigating DEI at Verizon, Comcast, Disney, and ABC. And after the aftermath of the George Floyd murder, media companies made a lot of promises on this topic.

Speaker 1 What are you seeing them now, the pushback against the federal government interfering in their corporate HR practices? They're just giving up, correct? They probably didn't like it in the first place.

Speaker 1 I didn't ever think they did.

Speaker 12 Well, the thing that has stood out to me most, and this stood out to me when Paramount did this. I mean, Paramount is the parent company of BET

Speaker 12 and MTV, which for decades have been bulwarks of diversity and basically places where you could get diverse programming that you couldn't get elsewhere.

Speaker 12 And so to see Paramount roll back its DEI practices, to me, that was a pretty serious sign that corporations were,

Speaker 12 you know, taking these threats from the federal government very seriously. Yeah.

Speaker 12 And, you know, in certain cases, I think that it's a sign that maybe these values weren't deeply held in the first place by the people that ran the companies, if they're willing to abandon them at the drop of a hat.

Speaker 1 Yeah, because Sherry needs her money. Sherry needs her billions.
Sherry Redstone, who owns Paramount. But

Speaker 1 is there any sign? Now, there's some companies that are pressing back, Apple and others, including Disney shareholders. Is that going to matter to them?

Speaker 12 I mean,

Speaker 12 I don't think so. I think probably it comes down to the CEO and

Speaker 12 the board of directors. And the boards of directors, generally speaking, are, in my experience, pretty well captive to the executive function at the company.

Speaker 12 And so unless there's some kind of major shareholder activism, unless some kind of activist investor buys a huge chunk of stock, I don't see these companies changing their tune.

Speaker 1 Well, in case of Disney, the shareholders have told the board what they want them to do, but they're not listening to them.

Speaker 1 So the First Amendment is supposed to protect legal residents, including green card holders and international students here on visas, but the Trump administration is trying to deport legal residents who protested have written in support of Palestine, which to me is the most violative thing of all, in my opinion.

Speaker 1 Ruth, in 2018, you moderated a panel on how First Amendment issues play out on campus. Since then, things have gotten much more complicated, obviously.

Speaker 1 Do you think this fight over legal residents' speech rights gets confined to colleges and foreign exchange students, or is it a harbinger of a larger attack on freedom of the speech?

Speaker 3 I think honestly, everything is a harbinger of a larger attack on freedom of speech.

Speaker 3 It doesn't actually, there's nothing that would in any way in the administration's legal theory, which is spoiler alert, wrong as a legal theory, that would confine it to the college campuses.

Speaker 3 There are complications that on college campuses because they have responsibilities to protect students from hostile environments.

Speaker 3 But in terms of free speech and free speech rights of people who are in this country legally, they have First Amendment rights just like actual citizens do.

Speaker 3 That is a black letter law, but this administration does not care about what black letter law is.

Speaker 1 And David, your book is called Murder the Truth. So in this case, that's what's happening here, correct?

Speaker 4 Yeah, I mean, I think the thing about the First Amendment that I don't know if you guys can see, but I'm wearing a First Amendment t-shirt right now because the First Amendment is the beauty of it is that it protects everyone regardless of their views.

Speaker 4 It protects our right to speak our opinion and stand up for what we believe in. And when that right starts getting threatened against students.

Speaker 4 As Ruth said, there's no particular reason to think that the same arguments won't be used against everyone else.

Speaker 4 And so I think it's this is I kind of feel normally as a journalist, you're supposed to be kind of like neutral and independent.

Speaker 4 And I try to be open-minded about this, but I also think it's important as journalists to kind of be

Speaker 4 be clear about our biases. And one of my biases as a journalist is that I like believe deeply in freedom of speech, including people's speech when I don't agree with them.

Speaker 4 And I just think it's important for journalists of all people to be willing to speak up on this because it is so central and crucial to what we do and the values that I think all journalists need to uphold.

Speaker 1 So given the stakes, this is my last question, what we're talking about, where the Trump administration and its allies are attacking freedom of expression from multiple angles, as we discussed.

Speaker 1 How should journalists and reporters communicate the bigger picture without getting lost in a din of whatever the latest outrage is, especially considering we've mentioned huge swaths of the public don't trust the media and are talking about reestablishing trust?

Speaker 1 I'd like to start with Ben and then Ruth and then David.

Speaker 12 Well, I think David made a very good point that the First Amendment shouldn't be a partisan issue.

Speaker 12 As David wrote eloquently in his book, the First Amendment protects conservatives just as well as it does liberals. And so I think that's a point we should be trying to hammer home.

Speaker 12 The other thing is I think it's helpful to have some historical context. On Friday, I talked to W.

Speaker 12 Joseph Campbell, who's an amazing media historian at American University, who pointed out that this actually isn't that new of a circumstance.

Speaker 12 In the late 1700s, John Adams was jailing journalists because of the Alien Sedition Acts. In 1917, the Espionage Acts sent Woodrow Wilson jailing journalists.

Speaker 12 And as recently as I think the Obama administration, the Justice Department was tracking down leakers in the administration. So the media has always been under threat.

Speaker 12 I think what's different, I talked to Seth CERN, who's a press freedom advocate. He says, what's different this time is that Trump is using a political calculation that he can get away with it.

Speaker 12 And if he succeeds, I don't know that there's any going back because modern day assumption of what American public will tolerate will be disproven.

Speaker 12 And so I think basically journalists need to stand in the breach and be advocates for the First Amendment because although this has been an ongoing fight for centuries, this is a particularly dire moment.

Speaker 1 So it's, they never liked us, is what you're saying.

Speaker 2 Yes, basically, yes.

Speaker 1 They never ever liked us.

Speaker 4 Yes.

Speaker 3 Ruth? So Marty Barron, the former executive editor of the Post, said at the start of the first Trump administration that our job wasn't to go to war, it was to go to work.

Speaker 3 I think we need to go to work, but we need to have a

Speaker 3 very specific vision of what that work entails.

Speaker 3 And I think to build on what Ben was saying, that work entails putting into context what is happening now, both the ways in which it is resonant of things that have happened in the past and the ways in which, and I keep on writing this sentence, the same sentence, which is this is not normal.

Speaker 3 As an opinion writer, I get to write it in that explicit way, but I think it is possible for and incumbent on straight down the line objective journalists to say to distinguish between what is happening now and to convey in appropriate language when it's correct, this is not normal.

Speaker 3 And that's what we need to do.

Speaker 1 David?

Speaker 4 Yeah, I completely agree with what Ruth just said.

Speaker 4 And I think there is our job as straight news journalists is to be open-minded and to try and understand things from all perspectives and try to arrive at what the truth is and convey that truth to our readers.

Speaker 4 It is not to just to explain both sides as if they're equally, they equally, they stand an equal chance of being right.

Speaker 4 If we know that one side is telling the truth and the other side is lying, we have an obligation, I think, to clearly convey that to readers.

Speaker 4 At the same time, I do think there are times when news outlets, large and small, and journalists prominent and obscure, do go too far and really insert their own views when there's a very good other view that they're not really taking into account.

Speaker 4 And I think it's incumbent upon all of us to be, frankly, a little more open about our biases and a little more cognizant of our biases and try to either own those publicly or do a bit of a better job sometimes of really genuinely and in good faith trying to understand

Speaker 4 the views and perspectives of people who disagree with us.

Speaker 1 So the idea would be truthful, not neutral, which Christiane Amenpour did say. Yeah.

Speaker 4 Our job is to convey the truth. And there are times, including right now, where there is one or there's powerful people up to and including the president who are routinely not being truthful.

Speaker 4 And it's, that's just a fact. And there's no point in couching that.
Trump lies a lot. And his allies lie a lot.
And they use those lies often, not always, but often, to promote their agenda.

Speaker 4 And it's the job of the media to refute lies and distortions and conspiracy theories. And I don't think there's really a point.

Speaker 4 I think we need to be very thoughtful about when we're labeling something as a lie versus something that's just wrong.

Speaker 4 But when there is something, when someone is lying, we should feel empowered to call that out directly and clearly and not get all mealy mouthed because we want to create a false sense of neutrality and

Speaker 4 objectivity.

Speaker 1 Well, I think we'll end on that note. Thank you guys so much.
I really appreciate it.

Speaker 4 Thank you. Thanks.

Speaker 1 On with Kara Swisher is produced by Kristen Castor-Rousselle, Katera Yoakum, Dave Shaw, Megan Burney, Megan Kunane, and Kaylin Lynch. Nishat Nishat Kirwa is Vox Media's executive producer of audio.

Speaker 1 Special thanks to Kate Furby. Our engineers are Rick Kwan and Fernando Aruda, and our theme music is by Trackademics.
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