In recent years, coinciding with the ascendance of Donald Trump, a variety of books and podcasts have been published with these alarming titles: “The Death of Truth,” “The End of Truth,” “Who Killed Truth?,” and “Post-Truth.” A new volume adds to this body of work, “Murder the Truth,” by New York Times investigative editor and reporter, David Enrich. With blood red letters on the cover and the words “The Truth” dripping ink, the point is clear.
Enrich explores a fresh angle, focusing on a campaign by conservatives to loosen the legal standards for proving libel and making it easier to collect damages from news companies. Donald Trump, who has been a veritable fountain of libel suits, vowed to change the libel laws, telling a cheering crowd in Texas in 2016, “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.”
The “opening up” didn’t happen during the president’s first term in the White House, in large part because of a 1964 US Supreme Court ruling in a famous libel case, Times v. Sullivan, which made it very difficult for politicians and government officials to win libel cases. The precedent it set required plaintiffs to show that news companies had published false information with actual “malice,” a very high standard of proof. Times v. Sullivan largely shielded reporters and publishers from large libel judgments for decades.
But in recent years there has been an explosion of lawsuits against media companies, and jury verdicts in conservative states, like Texas, have gone against the news media. That’s why a group of conservative lawyers are fighting to overturn Times v. Sullivan and their campaign forms the heart of Enrich’s book. It’s a fight filled with interesting characters — even if they are lawyers. The story Enrich has unearthed is engaging, even if, by the end (spoiler alert), Times v. Sullivan is still standing.
In my early days as a journalist, writing for a legal magazine, I was sued for libel. The case was quickly thrown out and the plaintiff had to pay my attorney fees. Luckily for me, this was in the 1980s, when Times v. Sullivan still provided a sturdy shield for journalists. Enrich takes readers deep into other interesting First Amendment legal battles, showing how each one could chip away at Times v. Sullivan.
Though The New York Times has not lost a libel trial since the 1960s, letters threatening defamation suits are now commonplace. The Times, after a long battle, is still fighting a defamation case filed by former Alaska governor Sarah Palin. The rising number of libel suits coincides with the public’s lack of trust in the news media, which is at an all-time low.
So, rather than put their news organizations in the hands of unpredictable juries, which have awarded outlandishly large judgments against the press, more and more news organizations are settling cases. Soon after the election, for example, ABC News settled a libel suit filed by Trump for $16 million. CBS News, according to published reports, is considering settling a case, judged weak by many lawyers, filed by Trump over the editing of a Kamala Harris interview. Conservative media organizations have also felt the lash of libel litigation.
In 2023, Fox News Network, after being sued by Dominion Voting Systems, settled a defamation case for $787 million, the largest ever award against a media company. One of the law firms representing Dominion was Clare Locke, a boutique firm that specialized in defamation cases. The story of how the founding partners, Tom Clare and Libby Locke, broke away from a large firm where Clare was Locke’s mentor and formed their own practice — becoming romantic partners, too — is quite a soap opera and Enrich milks the suds for all they’re worth. Enrich is somewhat demeaning in his descriptions of Locke, especially when he describes her relationship with Republican Governor Ron DeSantis of Florida: “When DeSantis wanted to send threatening letters to uncooperative news organizations and others, for example, Locke was his woman,” and adds, “She provided some of the services pro bono, explaining to fellow lawyers that she and the governor were pals.” The book’s epilogue includes a letter from Locke, protesting an article Enrich was writing for the Times, blasting him as ”a misogynist and a snake,” and accusing him of “improper and unethical” conduct.
Truth, though threatened, has managed to survive. Rumors of its death, as Mark Twain once said about himself, seem greatly exaggerated. Indeed, some prominent First Amendment lawyers I have consulted do not share Enrich’s view that Times v. Sullivan, a precedent that has stood for decades, is teetering on the brink of reversal.
Still, no one would argue with Enrich that the legal terrain has changed in ways that are clearly inhospitable to the press. The question now is, what comes next?
MURDER THE TRUTH: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful
By David Enrich
Mariner Books, 336 pages, $32.99
Jill Abramson, a former executive editor of The New York Times, teaches journalism at Northeastern University and is a contributing Globe Opinion writer.