In a Manhattan courtroom in January, David McCraw repeated an argument he has made many times in the more than two decades he has served as The New York Times’ chief newsroom lawyer. Donald Trump had sued the Times over a Pulitzer Prize winning story the newspaper had published in 2018 based in part on family financial records provided by the former president’s niece, Mary Trump. The key question, McCraw argued, wasn’t how the Times reporters obtained the information. “What is most important about that article and to these proceedings,” McCraw told the judge, “is that it was true.”
In a recent conversation with Harvard Law Today, McCraw, who is teaching a course on mass media law at Harvard Law School this spring, says he worries about the increasing use of libel laws and other legal maneuvers “by powerful people to try to silence” the free press. In the following Q&A, McCraw, who is the author of the 2019 book, “Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts,” discusses libel laws, Supreme Court precedents safeguarding journalism, legal protections for social media platforms, WikiLeaks and the importance of publishing government secrets like the Pentagon Papers, growing public distrust of the news media, and one of the many impacts of these and other trends on American democracy.
Harvard Law Today: How do you see the state of the media and press freedoms in the US today?
David McCraw: Without being alarmist, what’s concerned me has been the return to the use of litigation by powerful people to try to silence. I think that’s a serious issue that had in large part disappeared. If we go back to when New York Times v. Sullivan was decided in 1964, the driving force for the Supreme Court was that libel suits were being used to silence the northern press, which wanted to write about the Civil Rights Movement and what was going on in the Jim Crow South. And I think the Court’s ruling worked. There was a long period when we didn’t see many of those politically motivated libel suits. But I think that’s changed over the last five years. We see a lot of suits that are politically motivated. And we’ve seen them shaped at times as something other than libel. The Supreme Court has made rules around libel that make it difficult for plaintiffs, so they look for different causes of action, which achieve the same political purpose.
HLT: You mentioned Times v. Sullivan. Both Justices Thomas and Gorsuch have suggested it may be time to revisit that precedent. How do you view that possibility?
McCraw: There are two different critiques. Thomas’ take is that when Justice Brennan wrote the decision in Times v. Sullivan in 1964, it wasn’t constitutionally sound because it was not in keeping with the originalist reading of the Constitution. And I think if you read the decision, it’s pretty clear that it is not originalist, that it was looking at other cases from other courts and coming up with the ‘actual malice’ standard.
The Gorsuch argument is interesting, because he does, in fact, raise the possibility that the rules that made sense in 1964, and for a couple of decades after that, no longer makes sense in a social media world. And that, as he puts it, Times v. Sullivan was designed to create a legal allowance for falsehoods in the interest of the pursuit of truth; that if the press had to guarantee that a story was correct, there would be self-censorship, and that publishers would not take the risk. So, some falsehoods will be excused under the actual malice standard.
What doesn’t track is that the thing that concerns him about social media, which are the disinformation and misinformation and hateful speech online, have nothing to do with libel. Libel has to be a defamatory statement about a person that harms that person’s reputation. And as much as all of us should be concerned about disinformation, misinformation, and the like, changing Times v. Sullivan would do nothing to address that problem. Disinformation that targets individuals and harms their reputation is very rare. Most of it is about whether COVID vaccines work or if the election was stolen, none of which are aimed at a particular individual.
HLT: Speaking of social media, the Supreme Court is about to hear arguments in two cases related to Section 230 of the Communications Decency Act, which allows platforms to moderate third party content. In the age of disinformation, does Section 230 need to be revisited?
McCraw: The Section 230 argument is interesting, because if you think back to the congressional hearings in which the leaders of Facebook and Twitter testified, the committee peppered them with questions that were fundamentally divided on what the problem was. The Republicans said there was too little speech and that conservative voices were being silenced. The Democrats said there was too much unregulated hate speech, disinformation, and misinformation. So, we start deeply divided about what the problem is. In the end, though, changing Section 230 doesn’t really get at the problem. If a person is libeled online by somebody in a social media post, that person still has the right to bring a libel suit against the person who created it. What 230 says is that the plaintiff can’t sue Twitter, Facebook, The New York Times if it’s a comment, or whoever else is hosting that post. So, we still come face to face with the same problems – misinformation, disinformation, hate speech – that I think are what most people are concerned about, and they remain legal whether 230 exists or not.
HLT: You are on the forefront of litigating a lot of freedom of the press issues. Can you talk about a few of the important cases you’ve been involved in?
McCraw: I think the current case that former President Trump has brought against the New York Times is interesting, and not just to lawyers, because it reflects some of the trends I talked about earlier. In that case, Mr. Trump has sued the Times on a theory of what’s called ‘tortious interference’ in the law. And essentially, the claim is that our reporters induced Mary Trump, the president’s niece, to provide documents that were, in his mind, subject to a confidentiality agreement. The Trump family had entered into a settlement agreement when they were litigating against each other over the estates of Mr. Trump’s parents. And in the fullness of time, Mary provided documents from that litigation to a team of Times reporters, who then wrote a story that appeared in 2018 about the Trump family tax schemes, which won the Pulitzer Prize.
Mr. Trump has never challenged the truthfulness of that story and doesn’t in the current litigation. Instead, he wants to say that our reporting methods violated the law and that our journalists should not have induced Mary to turn over the documents. Putting aside whether there was anything that looks like inducing, that claim has the same impact as a libel suit that would be brought against a story that was true: it’s designed to chill speech. And the argument that I made in court two weeks ago was that asking questions and asking for materials should not be considered something that violates law. It’s the heartbeat of journalism and essential to how we get news.
We’ve also seen over the last few years libel suits brought against the New York Times by anti-immigration activists who we labeled as ‘white nationalists,’ or similar terminologies. And we’ve had a very good run in those cases with courts protecting the right to use those kinds of labels based on what these plaintiffs were actually saying. It’s another attempt to silence the press from talking in a straightforward way about some of these organizations that have an agenda that’s designed to make America less inclusive.
HLT: On the question of labelling things straightforwardly, can you talk a bit about the considerations involved in describing a false statement by someone as a ‘lie’?
McCraw: From a legal standpoint, it’s pretty simple. Calling someone a liar tends to be treated as an opinion. And an opinion can’t be a basis for libel. The idea is that we can’t get in the other person’s head. We listen to what was said and we come to the judgment, conclusion, opinion, that the person must know better and is saying something untrue. In many if not most circumstances, calling somebody a liar is going to be legally allowed and not defamatory.
The harder call, I think, is the journalism one, which becomes a matter of standards and fairness. In 2016, the Times famously called certain statements of then-candidate Trump lies, including his relentless statements about whether Barack Obama was born in United States. He finally conceded that, in fact, President Obama was born in the United States. And at that point, we did a story which referred to his lies about it. The unfortunate thing about that was that the word became the focus people’s attention, as opposed to the story itself. As our editor Dean Baquet said at the time, this was not going to open the floodgates where every time we think someone is making a conscious decision to tell untruths, we’re going to call that person a liar or say that they’re lies. And I think for the most part, that has continued to be the norm, at least at The New York Times, where we believe the word should be used sparingly and in circumstances where there’s clear evidence that the person knows what the truth is and says something else. It’s not confusion. It’s not a misremembrance. It’s not just a theory about what might have happened. But it’s actually an intentional misleading of the public.
HLT: The topic of government documents has been in the news lately. I’ve heard you say that you think the Freedom of Information Act is broken. Can you expand on that and how it has impacted your work?
McCraw: Sure. You began by asking about what I thought the state of press was. In addition to the return of libel suits and similar litigation to silence, I think the other two big areas are the United States’ failure to protect sources, and the weakness of our freedom of information laws. And it is my view that the Freedom of Information Act is broken. It was designed to make federal government documents available to citizens, including journalists.
It was done with the best of intentions in 1966, when it was passed. But from the start, it hasn’t worked. Ralph Nader, three years after FOIA was passed, wrote a law review article called the Freedom From Information Act, where he had people, the Nader Raiders, go out and test the system. He was asking, ‘What happens when you file a Freedom of Information request?’ And it was clear from the beginning that the bureaucrats were not going to willingly give up documents if they didn’t have to. There was hope at that point that once these cases end up in the court, the judges would enforce the terms of FOIA. But that’s not what we’ve seen. If anything, judges have tended to be very sympathetic to the agencies. And that’s unfortunate. But we don’t have an alternative. The First Amendment doesn’t readily apply to our access to documents from a federal agency. So, we have to rely on FOIA and we continue to litigate FOIA very heavily. We have currently between 15 and 20 pending FOIA cases in the courts.
HLT: Government documents, including classified documents, are an important way that news gets reported. The Times was involved in a famous Supreme Court precedent about that in the Pentagon Papers case. Is there a time when it’s appropriate for the government to hold the secrets and to prosecute or discipline leakers or whistleblowers?
McCraw: In arguing the Pentagon Papers case, The New York Times fashioned this idea of ‘the disorderly situation,’ which is how the Times lawyer, Alexander Bickel, framed the issue. That is, government should have a lot of power to keep secrets, but once those secrets become known to the press, the press should have great freedom to publish them. That was an imperfect system, and it wasn’t a balanced system, because the government has great power, and the press less so. But it at least made sense as a way to organize society, because if the press had too much power, then necessary secrets would not be kept. If the government had too much power, then necessary truths wouldn’t be told.
I think the great flaw in the law is that whistleblowers inside the government who come forward to try to show waste or corruption or misguided policy choices cannot argue public interest. They cannot come into court and say, ‘Yes, I know this was confidential. I know this was classified. But I thought there was a higher duty here.’ Instead, if they violate the Espionage Act, or other laws that govern this, they are criminally liable in some situations and may be subject to other punishments as well.
I think it’s hard for people to wrap their heads around the idea that probably the most powerful way government is held accountable has a crime at its foundation. And that’s why I think the public interest exception is so important. This system works because people are willing to take the chance of violating the law to help get the truth out. There’s no question that leaks are the most powerful vehicle for accountability. In this information ecosystem, FOIA is weak and the government is very reluctant to declassify. So, if you’re not going to get the documents through FOIA, then for better or worse we’re left with leaks as one of the most powerful means for obtaining information.
HLT: Daniel Ellsberg, who shared the Pentagon Papers, was prosecuted under the Espionage Act, though the case was dismissed. Do you think Julian Assange, who obtained and publicly shared a bunch of secret information through WikiLeaks, should be treated similarly?
McCraw: The New York Times recently signed an open letter in conjunction with four European publishers, asking that charges against Julian Assange that deal with the publishing of secrets should be dropped. And it was a very hard decision for us to make. Julian Assange is a complicated character. And his story is a complicated story. But when he provided documents through WikiLeaks to us and The Guardian and the other European publishers in 2010 about the war in Afghanistan, the war in Iraq, and diplomatic cables, that was an act of journalism. And we’re very concerned that the government prosecuting WikiLeaks for publishing sets an extraordinarily bad precedent. No publisher has been prosecuted under the Espionage Act since it was first written in 1917. And I think that reflects that basic understanding that governments can try to keep secrets, but they should not be trampling on First Amendment rights when those secrets come outside of government and are being published. There may be things that Julian Assange did that fall outside of the kind of behavior the First Amendment protects, but when it comes to publishing these secrets, that should be a core protected value.
HLT: So, who counts as a journalist these days? Can it be anyone who shares information online?
McCraw: In one sense, we all can be journalists if we have a Facebook page or Twitter account. But that isn’t the question I would ask when talking about the protection of law. What the law should protect is journalistic acts. The Supreme Court has repeatedly chosen not to create special rights for journalists. Instead, they have found that there are rights held by the public. So, to some extent, we don’t need to bother ourselves with the question of who’s a journalist and who’s not. I think it’s really looking at what they do, not who they are.
HLT: Do recent events involving classified documents being found in the possession of former presidents and vice presidents point to a problem of over-classification?
McCraw: There is a tremendous over-classification problem. And one of the concurrences in the Pentagon Papers talks about the idea that a perfect system would be one in which very few things are classified, but they would be classified in a way that is serious and enforced, and that a system that over-classifies creates its own problem. As the concurrence says, when everything is classified, nothing is classified.
What sets in with over-classification is cynicism. People look at a classified document and say, ‘I’ve read that in The New York Times. I’ve seen that every everybody’s talking about it.’ And I think we’re seeing that in all the recent cases where government officials have documents that are marked classified. What we can’t know is whether they really need to have been marked classified in the first place.
I litigated a case a few years ago concerning whether President Trump had declassified information by tweeting about it. I can assure you this was a novel legal argument at the time. He had started tweeting about what was a classified program, the CIA’s funding of rebels in Syria. And we took the view that the president can declassify at will because he sets the rules for classification. And if he starts tweeting publicly about a classified topic, that constitutes a declassification. I lost that case. The Court of Appeals said that even the president had to follow the rules for declassification. But after the documents were found at Mar-a-Lago, President Trump’s lawyers decided that they would start talking about how The New York Times agreed with them that the president is free to declassify. But they somehow missed what I thought was a really important point – that I lost, and that the argument was not the law.
HLT: I recently read a piece in The New Yorker by Harvard Professor Louis Menand about the growing distrust in the media. He wrote that “Back in 1976, even after Vietnam and Watergate, seventy-two per cent of the public said they trusted the news media. Today, the figure is thirty-four per cent. Among Republicans, it’s fourteen per cent.” Why do you think that is?
McCraw: The statistic that I have used over the last few years is from an Ipsos poll which showed that 26% of the American people thought the president should be allowed to close down news organizations that misbehave. And whatever your view of the press and whatever your view of the Constitution, that’s not really what the authors of the First Amendment had in mind.
There’s not a single cause for the decline in trust. The very successful campaign of denouncing the press as ‘fake news’ and an enemy of the people has had its effect. I think that those words coming from very high places are meaningful to a lot of people. And they do exactly what they were intended to do: cause people to dismiss news, rather than to read, think, and discern. I also think that the proliferation of social media has played a role in this. There was a time when there were authoritative voices. Now, there are just lots of voices. And I think that it becomes harder for people to discern what is information to be trusted, what’s information to be ignored. But more than that, it just is very tiring to try to figure it out. So, people choose to believe what they believe and ignore the rest.
I don’t think the news industry gets a pass on this. We have not been as good as we should be about explaining how we do what we do. When we’re writing a critical story about Joe Biden, it’s not because we have decided we don’t like Joe Biden. When we’re writing a story about [House Majority Leader] Kevin McCarthy, it’s not because we’ve decided we dislike Kevin McCarthy. And I think that we need to do a much better job of talking about the norms of journalism, news gathering, and news value. There’s also a new debate over whether journalism’s old models still work. In fact, what has been described as objective journalism has fallen out of fashion in some circles. People believe that powerful news organizations should be advocates. And that debate has also made it more likely that people are willing to just dismiss something as being partisan, and therefore not to believe it.
HLT: And what are the implications of that for American democracy?
McCraw: Well, there are a lot of implications. I’d like to focus on one, which is the growing lack of trust in intermediaries. In the past, we as readers and viewers couldn’t know what was going on in the Soviet Union, in Vietnam, or anyplace else. But we felt that we could trust the intermediaries that were the major news organizations at the time to tell us about the important things taking place there. You now have this rise in distrust in the intermediaries. I know some people are talking about the period in which we are living as a post-truth era, but scholars that I admire have talked about it as the post-trust era. What’s changed is the willingness to reject even sources that used to be authoritative. This has two consequences. One is that people become apathetic, because it’s too hard to sort things out, and say ‘there are too many voices, and I’m not sure which one to trust, so I’m just not going to try.’ I think that there’s also the tendency for people to say, ‘I’m going to believe the people I believe.’ Ezra Klein talks about the ‘fact checker’s fallacy,’ that we’re all trained to believe that if people just have the facts, they’ll get set straight. And in fact, both the research and our own observations of our fellow citizens show that, for many people, the facts don’t matter.
This interview has been edited for length and clarity.
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