From the start of his presidential bid, Donald Trump took full advantage of the public’s growing mistrust of the mainstream press. The journalists tirelessly chronicling the near-daily scandals erupting from his White House were “scum,” he taunted. They were dishonest, he insisted. They were “the enemy of the people.”
HIs adviser Stephen Bannon memorably called the media “the opposition party.” Plenty of Americans agreed: These days, even local TV reporters are likely to be blasted as “fake news” as they try to cover school board meetings.
Now, more than a year after Trump’s presidential term ended, three volatile lawsuits forged in the culture-war fire he stoked are making their way through the legal system.
All are defamation suits, and the mere names involved suggest just how hot those flames may get: Sarah Palin, the right-wing lightning rod who gleefully slammed the “lamestream media”; Project Veritas, the hidden-camera “sting” outfit that targets journalists and liberals; Fox News, the conservative cable network that morphed into the Trump White House’s propaganda office; and The New York Times, the pillar of elite journalism that became the object of some of Trump’s most scalding attacks — and is now the defendant in two of the cases.
Each case has the potential to alter the media business or the practice of journalism, for better or worse. It’s no coincidence that they come at a time when anti-press sentiment is rampant, and not just among conservatives. Public trust in the news media, as well as other institutions, has plummeted over the past 50 years.
“You can’t take it for granted these days that members of a jury, or even judges, believe that we need a robust free press,” Elizabeth Spiers, a writer and political strategist who, 20 years ago, co-founded Gawker, told me last week.
She watched that dynamic play out a few years ago when a Florida jury awarded local hero Terry Bollea, better known as professional wrestler Hulk Hogan, a huge monetary award — millions more than he had sought. His invasion-of-privacy suit was against Gawker, which had posted parts of a tape showing him having sex with the then-wife of radio personality Bubba the Love Sponge. The payout sent the original Gawker into bankruptcy and eventually out of business, a cautionary tale for media companies of all stripes whose decision-makers would like to think that First Amendment ideals resonate in American courtrooms.
The cases involving Fox News also reflect the media culture wars, but from the other side of the divide. Two large voting-technology companies — Smartmatic and Dominion — are suing Fox News, claiming that their reputations were unfairly damaged when the network handed a megaphone to conspiracy theory-spouting guests, including Trump lawyers Sidney Powell and Rudy Giuliani, who falsely accused the companies of helping to rig the 2020 election against Trump.
As big and potentially damaging as they are, the Dominion and Smartmatic suits could end up being settled before trial. Fox News certainly has plenty of motivation to pay to make them go away. (In both cases, Fox News has said that it was simply covering newsworthy comments of public interest, made relevant because the Trump campaign was protesting the results of the election.) But no matter the outcome, they could prompt Fox News and similar media companies to exert significantly more caution about spreading political lies. If so, this would be the rare case of Fox News being held accountable for the damage it does.
The long-term effects of the Project Veritas case — which claims The New York Times defamed the group with two news articles characterizing their tactics as deceptive and possibly part of a disinformation campaign — are harder to suss out. Already, there has been a major development that worries press advocates: A trial judge ruled that the paper is not allowed to publish certain information it obtained about Project Veritas. Such a ruling, known as “prior restraint,” is highly unusual and cause for legitimate concern.
But perhaps most potentially consequential is Palin’s suit against The New York Times over a 2017 editorial that inaccurately drew a connection between her political rhetoric and the shooting that gravely injured then-congresswoman Gabby Giffords and killed six others in 2011.
The editorial, aggressively rewritten by an editor on a tight deadline, was assigned in the hours after another mass shooting, this one at an Alexandria, Virginia, baseball field, in which then-House majority whip Steve Scalise was seriously wounded. The error was corrected after it sparked a Twitter firestorm upon publication. “Are you up? The right is coming after us,” the editor, James Bennet, wrote in a panicky-sounding midnight email to the author of the editorial, as chronicled in Columbia Journalism Review. (Bennet, former top editor of the Atlantic, resigned from The New York Times in 2020 after his Op-Ed section published an inflammatory opinion piece by Sen. Tom Cotton, R-Ark.; Bennet acknowledged he had not read it first.)
It’s not inconceivable that Palin v. Times could make its way to the Supreme Court. If it does, an unfulfilled promise of Trump’s — that he would “open up” the libel laws — might come to pass. Most legal experts scoffed when Trump, both as candidate and president, declared that he wanted to make it easier for aggrieved public officials, such as himself, to sue news organizations and “win lots of money.”
Despite his bluster, the legal foundation on which those laws are built is still standing. That’s the 1964 Supreme Court ruling in New York Times Co. v. Sullivan that gives significant protections to news organizations when they are sued by public figures, requiring that plaintiffs prove “actual malice” or “reckless disregard” for the truth — in other words, that they published information knowing full well that it was false and proceeding anyway. The New York Times’ swift correction of its mistake strongly suggests there was no reckless disregard for the truth — just sloppy editing and poor judgment.
But, in today’s fraught atmosphere, it’s an open question whether judges and juries will see it that way.
“It seems like a sure bet that the press-friendly standard for libel the Times v. Sullivan case established is in for a serious challenge,” said Nicholas Lemann, a professor at Columbia Journalism School and staff writer for the New Yorker magazine.
After all, as Lemann noted in an email to me, the current Supreme Court already “has shown that it is eager to revisit, and possibly reverse, the great liberal victories of the 1960s and ’70s,” and Justices Neil Gorsuch and Clarence Thomas both have publicly said they would like to reconsider Times v. Sullivan.
Trump’s appointment of Gorsuch and two other conservative justices could put the former president’s fingerprints all over such an outcome, one which could cause a long-standing press rights standard to be weakened. That would be extremely regrettable, from my point of view. Journalists, being human, inevitably make mistakes; those mistakes should be acknowledged and corrected but, at least when public figures are involved, not harshly punished.
“It would be a bitter irony if Sarah Palin, of all people, proves to be the vehicle through which the media are taken down,” wrote Northeastern University professor Dan Kennedy on Boston’s WGBH last week. Ironic, he explained to me later, because of the emptiness of Palin’s past anti-media rhetoric and the overall weakness of her suit.
The case was moving toward jury selection last week when Palin tested positive for the coronavirus, causing a delay. (Her infected status didn’t keep the former Alaska governor — who announced last year that she would submit to the vaccine “over my dead body” — from dining a second time at a Manhattan restaurant where she had already flouted a proof-of-vaccine mandate.) The trial is scheduled to start again on Thursday.
It’s bound to be a wild ride. And, in this political atmosphere, it may end up being an extremely consequential one.