Portraying journalists as ‘enemies of the people’ is the biggest threat to press freedom in America today
A disbelieved press is little different from a shackled press.
The Republican corporate lawyer seated next to me leaned in to whisper. We were at a private dinner at one of those somber clubs filled with dark wood and 19th-century portraits. “Thank you for what you’re doing,” he said, referring to my legal work defending the First Amendment.
That happens a lot these days. I have spent 19 years as a newsroom lawyer, protecting the rights of journalists at The New York Times, The Boston Globe, and other newspapers. We live in a moment when the president attacks the press before he eats breakfast and a Supreme Court justice ruminates on why the court should make it easier to sue for libel.
I found myself in the mix with Donald Trump even before he was president. During the 2016 campaign, I wrote a letter rejecting Trump’s demand that the Times remove an article about allegations by two women that he had groped them. My pointed letter went viral.
While I appreciate the support from fans of that letter and people like my Republican dining companion, there is a crisis of press freedom in this country that lawyers like me don’t have the power to solve.
The movie Spotlight showed the Globe’s outside counsel, Jon Albano, winning access to critical documents that allowed the paper’s investigation into the Catholic Church’s coverup of pedophile priests to go forward. In general, though, press lawyers have not fared well in the popular imagination. Take Steven Spielberg’s The Post, which dramatizes the effort by journalists at The Washington Post and the Times to publish the top-secret Pentagon Papers despite threats from the Nixon administration. The Post’s lead lawyer is portrayed as a humor-impaired fretter, lining up on the wrong side of history as he sweats the legal details, or sometimes just sweats.
I, too, may have been racked by worry had the Supreme Court not issued a series of decisions starting with the 1964 landmark New York Times v. Sullivan — the same one now under attack by Justice Clarence Thomas. The court ruled in Sullivan that news organizations would not be vulnerable to costly libel verdicts if they got something wrong unless they had published with reckless disregard of the truth. In the two decades after Sullivan, the court repeatedly reinforced and expanded those rights by staring down challenges from those who wanted to punish the press for telling the truth.
Trump may rail about how he wants the libel laws changed, and Thomas may have nudged the cause along. But the reality is that the law of press freedom is in no immediate danger of being rolled back. Newsroom lawyers like me, reviled or loved, will be able to do our jobs.
That’s how I have been able to support the important work of journalists, such as pushing back against legal threats by Harvey Weinstein so that reporting could proceed, letting loose a tsunami of sexual-assault reckoning.
The job of holding powerful interests accountable is nonpartisan. I filed more than 30 Freedom of Information Act lawsuits against the Obama administration on behalf of Times journalists (and the general public) for the release of vital public documents. We kept going with the Trump administration, seeking everything from the visitor log for the Trump transition office to the memos written by then-FBI director James Comey about his meetings with the president.
In reality, the threat to press freedom today does not lie in the law. It comes in the form of the president’s repeated denouncement of American journalists as purveyors of fake news and the enemy of the people, a message played out at political rallies to cheering admirers.
The law can give the press the freedom to matter, but it can’t make the press matter. A disbelieved press is little different from a shackled press: It lacks the authority to hold power accountable or mobilize public opinion against wrongdoing and misguided policy. It gets ignored.
And at some point a disregard for the press will translate into a disregard for the law of press freedom.
Too often the debate is cast as liberal versus conservative — as if the left believes in freedom of speech and the right is against it. But it was only nine years ago that, by a unanimous voice vote, all the Democrats and Republicans, liberals and conservatives, in Congress came together to pass the SPEECH Act. That law protects American publishers from libel judgments won in foreign courts where the law does not adequately protect press freedom.
We need to find our way back to that national consensus, to the shared belief that an independent press counts — no matter what our politics are, no matter whether we’re watching Fox News or MSNBC.
Today’s First Amendment battleground is the fight for America’s hearts and minds. It is about our collective willingness to stand up, and speak out, for a free and strong press.
That’s not a job for newspaper lawyers. It’s a job for all of us.