AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report, with Part 2 about our discussion of the new book, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, the name of the new book by David Enrich, the business investigations editor at The New York Times. David looks at how President Trump and his allies are pushing to overturn protections for the press to investigate public figures, a right guaranteed by the landmark 1964 Supreme Court decision New York Times v. Sullivan.

In 2019, Democracy Now! spoke to James Goodale, former vice president and general counsel for The New York Times, who talked about the significance of the Sullivan case.

JAMES GOODALE: New York Times v. Sullivan is a famous case because it changed the law of libel and made the libel law much more difficult to apply to public figures and public officials, who say all sorts of crazy things, like Trump does, by the way, about their opponents or about this and about that. Before the Sullivan case, the law favored people who wanted to sue those who were making such statements. And this was happening in the South. This is at the time of the civil rights movement, where The New York Times, Northern papers were covering what was going on in the South. And the South, if I can call it that, came up with a solution to deal with the bad stories: They would sue. So, there were all sorts of politicians in the South who sued media companies. Sullivan sued The New York Times.

AMY GOODMAN: That was James Goodale, the former vice president and general counsel for The New York Times, speaking back in 2019.

We now continue our conversation with David Enrich, author of Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.

So, you were at the Times, and as you described in Part 1 of our conversation, you started to see news organizations, and started to investigate, small and large, being threatened, and you talked about how larger news organizations, like The New York Times, can deal with these threats. But, actually, give more detail. How does The New York Times deal with, and what are these threats to the Times in stories you write about? You’re the business investigations editor, so you deal with a lot of the powerful in this country.

DAVID ENRICH: Yeah, and we are accustomed to a pretty wide range of legal onslaughts in my job, and many of my colleagues face this, too. And it’s often, you know, you’re writing a story about a powerful institution, and maybe it’s — it could be the White House, or it could be a hospital system or something like that. And, you know, we go to them as part of our investigation. We try to understand their perspective. We make sure that we’re presenting all our facts to them in advance and giving them ample time to respond and to question some of our facts or quibble with them. And often at that point, at that stage in the reporting, we are met with very long and kind of ferociously written letters on fancy letterhead from high-priced law firms that take issue with a bunch of our facts and often will add context or quibble with the context, but then throw some threats on top of that and say, “If you get any of this wrong, we are going to sue you.” They often mix in some kind of ad hominem attacks on either the reporter who’s involved or sometimes the editor who’s involved. And, you know, it’s a little bit intimidating.

The thing is, The New York Times has an ownership structure that is very positive for journalism. We also have a team of amazing in-house lawyers who are extremely experienced in dealing with this. And the reason I started looking at how this was affecting other news outlets and independent journalists is I know that at the Times we sit in kind of this position of great privilege in the journalism community, and which I love and I’m very, very grateful for, but it occurred to me that this was not something that many other people had, you know, had the privilege of enjoying. And sure enough, as I talked to other people outside of New York and outside of major news outlets, that was correct. It was exactly right.

There are people who are getting intimidated, silenced. And in some cases, these threats and the litigation are having not only severe financial tolls, but severe psychological ones, as well. And I talked to a blogger in California who had been investigating Russian oligarchs, and the legal onslaught he faced was so severe that he had to check into a hospital because of debilitating panic attacks. And he ultimately shut down his blog, deleted the offending blog posts and quit journalism altogether. And it’s stories like that that I found really upsetting and alarming, because when we start shutting down independent voices, that is a harbinger of other bad things to come, and I think it poses a real threat to democracy.

AMY GOODMAN: You have a chapter in your book, Murder the Truth, called “Just the Beginning.” And it’s the story of a New Hampshire Public Radio reporter and her taking on someone powerful. Tell us the story.

DAVID ENRICH: Yeah, so, the reporter is Lauren Chooljian at New Hampshire Public Radio, and she got a tip about the owner of a network of rehab centers in New Hampshire. The guy’s name was Eric Spofford. And Lauren’s reporting turned up a lot of evidence that Spofford had been engaged in a pattern of sexual misconduct and other misbehavior. Spofford denies that, but Chooljian presented on-the-record sources’ documentation that supported the existence of this pattern.

She went to Spofford and his team beforehand. And Spofford is a very rich and politically connected person in New Hampshire. And she went to his team beforehand. They responded, as people like him often do, by hiring a high-priced law firm and starting to send threats.

New Hampshire Public Radio, to its credit, stood by its reporter, published the piece. There were never any major inaccuracies, to my knowledge — no inaccuracies at all, at least as far as I’m concerned, and they stood by the piece.

Spofford’s lawyers escalated their legal campaign, sending threats and, ultimately, suing. But in the meantime, some of Spofford’s associates took matters into their own hand — into their own hands and started a campaign of physical aggression and, essentially, terrorism toward her. People started throwing bricks through the windows of not only her home, but her editor’s home, her parents’ homes. They started spray-painting obscenities and threats on her house in bright red spray paint. And, you know, the cover of my book has the image of spray paint over some of the words, and that was inspired by the experience that Lauren Chooljian and her colleagues had.

It was, to me, a really powerful example not only of local journalism being under threat and powerful people trying to suppress the truth, but also how those threats can very quickly and easily spread from the legal realm to the physical one. And I think that especially when you have a president who is using inflammatory, incendiary rhetoric, demonizing people, often in highly personal terms, that is a risk that is becoming increasingly common.

AMY GOODMAN: So, what happened to Lauren?

DAVID ENRICH: Well, she prevailed. The people who — and, ultimately, she was a finalist for the Pulitzer Prize for her reporting. NHPR beefed up its security, and spent a lot of money doing that. And the guys who — the lawsuit was ultimately dismissed. And the men who were found to have vandalized her and her colleagues’ and her parents’ homes were ultimately apprehended by the FBI and are serving time in jail.

AMY GOODMAN: I want to go to this clip. It’s of President Trump.

DONALD TRUMP: And to get me, somebody would have to shoot through the fake news. And I don’t mind that so much, because I don’t mind. I don’t mind that.

AMY GOODMAN: So, that’s President Trump speaking at a rally. Your thoughts?

DAVID ENRICH: I mean, it’s really — it’s hard to fathom how the president of the United States is, essentially, inviting or condoning violence against journalists. I mean, I think it’s terrible — 

AMY GOODMAN: A victim of assassination attempts himself.

DAVID ENRICH: Yeah, and even if he wasn’t a victim of an assassination attempt, it is the media. The press plays a pivotal role in our democracy. It has since our country’s founding. That’s why freedom of the press is part of the First Amendment, and it’s — the First Amendment is first for a reason. So, the notion that the president would, essentially, encourage some of his supporters, who have a history of doing violent things, to take out their aggression on the media — and he often does it — that was in kind of generic terms. He often has done it in personal terms. He names people. His supporters name people. And I think it is a really dangerous thing to be doing. And I hope no one gets hurt, but it would, frankly, not surprise me if someone does.

AMY GOODMAN: Talk about Clare Locke.

DAVID ENRICH: Clare Locke is a law firm. It was founded in 2014 by Tom Clare and Libby Locke, who were both personal and professional partners. And the firm was created to basically be a one-stop shop for powerful people and institutions that want to take on the media. And so the firm is devoted almost entirely to threatening news outlets and journalists and suing them. And they launched the firm in 2014 at a time when there were basically no other firms that were wholly devoted to this, so it was kind of a risk. And they have — it’s just blossomed into one of the most powerful law firms in the country, I think, when it comes to media cases.

And both Tom Clare and Libby Locke have developed these ferocious reputations, not only for intimidating journalists and getting their way with journalists, but also Libby Locke, in particular, has become one of the leading and most outspoken voices for overturning New York Times v. Sullivan, which I think she believes in partly for ideological reasons. She really does not like the media. And she is Federalist Society devotee, and she’s pretty far right. But I think also it’s hard to overlook the fact that her law firm, from a business standpoint, will do much better if it becomes easier to win lawsuits against news outlets. That will be very lucrative for her and her partner.

AMY GOODMAN: They didn’t start off by winning.

DAVID ENRICH: No.

AMY GOODMAN: Tell us those stories. Talk specifically about their cases.

DAVID ENRICH: Well, one of the first cases they brought was on behalf of a consulting company called ChemRisk that was hired by, in this case, BP after the huge oil spill in the Gulf of Mexico. And I could say “Gulf of America,” but I’m going to say the “Gulf of Mexico,” because at least at that time that’s what it was called. And there were a couple of bloggers for The Huffington Post who started to dig in to this company ChemRisk, and what they realized is that ChemRisk had a history of seemingly obfuscating the truth about the environmental harms that some of its clients were causing. And so they started writing about this, and it was a very damaging report for ChemRisk, except for one thing, which was that it was published on a kind of an obscure blog that no one really would have read.

But ChemRisk was very upset about what these two bloggers had written, and they hired Clare Locke to — initially, to threaten the journalists, and when those threats failed, when The Huffington Post stood by them, they filed a lawsuit. And the lawsuit, I mean, it ran into a thing called the First Amendment, which protects exactly this type of — against this type of situation. And I’m not sure that there was anything wrong or inaccurate in what these two bloggers had written, but even if there was, that is why we have New York Times v. Sullivan. You cannot be penalized legally for writing things in good faith about powerful people and institutions.

And ChemRisk and Clare Locke ultimately lost the case, and the attorney for the two bloggers actually got his fees covered by ChemRisk because a judge ruled in his favor. But again, it was something that dragged on for years. And so, while Clare Locke lost, these bloggers kind of did, too. I mean, it really — it turned their lives upside down, both of them. It was two single mothers, neither of whom really had very much money. And it really exacted a huge personal and financial toll on both of them, even though they emerged victorious. And so, Clare Locke, you know, it wasn’t a great start for them, but it still, even in failure, it showcased the enormous power that these legal threats and lawsuits have, especially against people that are not at places like The New York Times.

AMY GOODMAN: Talk about malice, what that means, and why that is so key in protecting the press.

DAVID ENRICH: So, the Supreme Court in New York Times v. Sullivan set a standard for how you can win, what you have to do in order to win a defamation case if you are a powerful person, so a public figure or a public official. And they said you have to prove that the person who said the defamatory thing or wrote the defamatory thing acted with what’s known as actual malice. And actual malice, it’s a bit of a misnomer. To me, I hear that, and I think, “Well, you’re mean, or you really don’t like the person you’re writing about.” That’s not what it means. What it means in the legal sense is that in order to win the case, you not only need to prove that you were defamed and that the facts were wrong, you also need to prove that the person who spoke those defamatory falsehoods knew that what they were writing was false — so, in other words, they lied — or that they acted with reckless disregard for the truth.

And that was a deliberately high bar that the Supreme Court created. And the reason for that is that you need in a democracy, where you value free speech and you want people to be able to openly criticize powerful people, which, again, was what the framers of the Constitution — that’s why they created the First Amendment, so that people like the media could be a check on the executive branch, in particular, of wielding too much power. And if you want people to be able to exercise their free speech rights and you want the press to be a vigorous and independent watchdog, you need to give people breathing room, so that if they make an honest mistake or a good-faith error, they do not risk being sued to death. Because if you have that fear of being sued to death every time you open your mouth, you are going to shut your mouth.

AMY GOODMAN: Where does Alex Jones fit into this picture?

DAVID ENRICH: Well, Alex Jones is one of a growing group of conservative voices who have been sued successfully under defamation laws for lying about people, defaming them. And he was sued for a whole lot of money about a whole campaign of lies that he orchestrated against the families of the Sandy — families of the victims of the Sandy Hook shooting. And he was sued successfully. It basically brought him to bankruptcy. And one of the — 

AMY GOODMAN: And explain what he said, what he alleged at the time.

DAVID ENRICH: He alleged that it was a false flag operation, that the shooting did not actually occur, that these families who were grieving and had lost their children had not actually lost their children, and that this was all kind of a conspiracy to enable the government to take away people’s guns and to exert more control in society — a vicious, completely baseless lie, that he knew was a lie.

AMY GOODMAN: And all these parents were actors.

DAVID ENRICH: Yeah, the parents were actors. It was a really disgusting lie. And he was successfully sued for defamation by these families.

And he’s not alone. I mean, Rudy Giuliani was successfully sued by two poll workers in Georgia, whom he had accused of trying to rig the 2020 election. Fox News was successfully sued by Dominion Voting Systems because Fox News and its guests were lying about — also lying about the 2020 elections.

And one of the things I hear from people often is that, you know, it’s important for libel laws to be able to use — to be used as a tool or a weapon against disinformation and against lies. And I completely agree with that. And I think one of the things that we’ve seen in the legal climate today is that it is entirely possible, with New York Times v. Sullivan, to use libel laws to go after people and punish people who deliberately lie and destroy people’s reputations. That is, the current legal system is not an impediment to that, and no one’s arguing it should be. The question is whether you want to make it so much easier to sue and threaten journalists and others that they are kind of frozen into silence. And I think that is a really dangerous thing. But there is nothing stopping people, nor should there be, from holding liars to account when they cause great damage and kind of threaten our information ecosystem.

AMY GOODMAN: I think if you ask most people if they’ve heard of the Sullivan case, the Supreme Court decision that really protects journalists, maybe people would say, “Yeah, it came out of Watergate.” But if you can go back again and tell us even in more detail, that this came out of the civil rights movement in 1964?

DAVID ENRICH: Well, it’s funny, because, as a journalist, I’ve had New York Times v. Sullivan kind of pounded into my head from my earliest days. And it turned out, as I started the reporting of this book, I thought I knew the story, but I really didn’t. And it’s a really amazing story.

So, in 1960, Martin Luther King’s supporters ran a full-page ad in The New York Times that was a fundraising appeal to support King’s legal defense and also to pay for a voter registration drive in the South. And the ad is a very small print ad. You can look it up. It was called the “Heed [Their] Rising Voices” ad. And it contains all this kind of small print, and it’s kind of a litany of abuses that Southern officials have made as they’ve tried to preserve white supremacy in the South.

And in the ad, the gist of the ad is completely right, and the tactics they were using were violent and Stalinist, but some of the details were either wrong or exaggerated. And one of the people who read the ad was a guy named L.B. Sullivan, who was in charge of the police force in Montgomery, Alabama. And he and some of his colleagues thought that one good way to get Northern newspapers and the national broadcasters to stop writing about and covering of the civil rights movement was if you made them — it very financially expensive for any inaccuracies they happened to state. And so, Sullivan filed a lawsuit against The New York Times, claiming he had been defamed by some of the exaggerated facts in The New York Times ad. Sullivan wasn’t even named in the ad, so it was a real stretch from the start.

But the case went to trial in a court overseen by a white supremacist. Some of the jurors showed up to court in Confederate outfits with guns. And you will not be surprised to hear that the jury swiftly returned a verdict for Sullivan and against the Times for half a million dollars, which at the time was a huge amount of money, and The New York Times was kind of on a financial knife’s edge.

And so, the Times responded to this verdict by pulling its reporters out of Alabama and discouraging them from writing about things like institutional racism in the South. So, the chilling effect, which was the entire point of this lawsuit, it was very real. It worked as intended.

And that’s what led — and a few years later, when the Supreme Court agreed to hear this case, that chilling effect and the way that Southern officials like Sullivan had weaponized the law to stifle speech, that became kind of the basis for the decision, which was that we need to have enough legal protections in the First Amendment and in the Constitution so that the freedom of press and freedom of speech, which is guaranteed in the First Amendment, is a real thing, and it is not susceptible and vulnerable when you have a Southern official like L.B. Sullivan who wants to shut you up by filing a garbage lawsuit, but that garbage lawsuit happens to get traction because you are in a racist part of the South. And so, the court created this actual malice standard and deliberately gave journalists and everyone else the breathing room to make mistakes, as long as they’re honest mistakes and as long as you’re not trying to mislead or trying to hurt people. It gave everyone the breathing room for good-faith errors and protection from the lawsuits that would result from that.

AMY GOODMAN: And how did that — 10 years later, Watergate and coverage of what happened with President Nixon?

DAVID ENRICH: Well, it just ushered in a golden age of investigative journalism in America. And before Watergate, you had the Vietnam War, where reporters were finally kind of finding their voice and calling out the lies of various presidential administrations. That was definitely enabled because of the Sullivan decision.

And then you have the Watergate scandal, which was brought to light, obviously, by Washington Post reporters. And both The Washington Post reporters and Richard Nixon agreed on one thing, which was that that reporting was enabled, it was possible, because of the Sullivan decision. Without that decision, Nixon was — like our current president, was vindictive and litigious, and it would have been really very dangerous for Woodward and Bernstein and the Post to pursue Watergate, much less write the series of stories that they did, if they did not have the legal protections provided by the Supreme Court in Sullivan.

AMY GOODMAN: Finally, David Enrich, you have an epilogue in the book, “A Misogynist and a Snake.” Tell us the story.

DAVID ENRICH: Well, first of all, I deny that I am either a misogynist or a snake. But as I was reporting this, the law firm Clare Locke, that we spoke about earlier, they are a major subject of the book. The book contains some, I think, very vivid and, at times, personal details about Tom Clare and Libby Locke. They were understandably not super happy that I was reporting on that. And they proceeded to send me and The New York Times, where I was writing some of this stuff for at the time, a series of very increasingly threatening letters that — and they were really kind of unhinged. They were making accusations that I was acting, I was lying about working on a story for The New York Times, and when that failed, that I was lying about — I was trying to subvert some litigation that Clare Locke had. I mean, none of this is true. And when those kind of misstatements failed, they resorted, as they sometimes do, to ad hominem attacks, calling me a misogynist and a snake.

And, you know, The New York Times, to its credit, was not intimidated by this and went ahead and published the story. And these attacks have kind of continued since the book was published. And they have — they have not brought any inaccuracies to my attention. I don’t think there are any inaccuracies, because I was very careful in fact-checking this. But they’ve continued kind of the name calling, describing me as a mean-spirited bully. And I don’t think I am. In fact, I think if anyone’s bullying people, it’s probably Clare Locke.

AMY GOODMAN: Finally, we began our show, where we interviewed you, by talking about what many have described as a SLAPP suit against Greenpeace, for which they are now being held — I mean, I think that they are supposed to pay something like $600 million for instigating the Dakota Access Pipeline protests in North Dakota. This is, of course, a case they’re going to appeal. But how do you see that kind of story, an attack on people’s right to protest, related to the attacks on the press?

DAVID ENRICH: Oh, it’s the exact same thing, right? I mean, what I detail in this book, it’s partly about people like Trump attacking the media and suing the media, but it’s much more than that. I mean, there has become a culture in this country, an entire legal industry devoted to threatening people, whether they’re journalists or activists or just normal citizens, who make their voices heard. And I don’t know — I’m not super well versed on the details of the Greenpeace case, but it certainly has all the hallmarks of a lawsuit that is brought by a powerful person or institution — in this case, an energy company — that is trying to suppress speech that they find unfavorable.

And, you know, that is exactly the type of thing the First Amendment is supposed to protect against. And it is exactly the type of thing that a lot of people right now, including in Trump’s orbit, but by no means confined to Trump, are really — they’re pushing to make it easier to bring these kinds of lawsuits and to get groups like Greenpeace or journalists or anyone else who wants to criticize or investigate powerful people to make it financially dangerous and very scary to do so.

AMY GOODMAN: I was reminded of the story of Alan Berg. His home, I have visited in Denver, Colorado. The radio talk show host was gunned down in his driveway — I think the date was June 18th, 1984 — by white supremacists. Talk about physical threats.

DAVID ENRICH: Well, I mean, it’s becoming kind of a reality that we’re living in. I mean, there have been more recent examples, as well. And there’s a case in Las Vegas not that long ago where a local official gunned down a journalist who had been investigating him. And we talked earlier about the case with Lauren Chooljian in New Hampshire, where her homes were vandalized by a bunch of people with very scary criminal records. You know, we’re seeing this. I’ve heard about a lot of reporters who now have — they need to travel with personal security.

You had Trump — and we played the clip earlier of him seemingly condoning, if not encouraging, violence. And there have been other instances of that, as well, where he’s kind of applauded violence against journalists. And look, it’s not like journalists are a unique protected class here of people who are super vulnerable. We’re not. But I think it is part of a broad pattern of — especially on the right, of powerful people kind of either condoning or encouraging, or at least legitimizing, violence through their rhetoric. And I think in the kind of polarized times in which we live, where there are a lot of, frankly, crazy people out there — I’m not saying Trump causes violence necessarily, but speaking in violent terms about individual people is, to me, a really reckless and scary thing to do.

AMY GOODMAN: And, in fact, that a key player right now in the Trump administration is the wealthiest man in the world, Elon Musk —

DAVID ENRICH: Yeah.

AMY GOODMAN: Right? — who owns Tesla, owns corporations, SpaceX. What has been his approach to the media?

DAVID ENRICH: I mean, he is just as hostile, if not more so, than Trump. And that ranges from his rhetoric. And he has called journalists whom he disagrees with “traitors.” He has called for the jailing of journalists. And again, that’s just rhetoric, and he is not the president, and so, you know, it’s hard to know how seriously to take that. But he’s also — and he has put his money where his mouth is, and he has filed lawsuits against news outlets and other groups that are critical of him or his companies. And, you know, he obviously has Trump’s ear.

And I think, more than that, one of the things I saw in the reporting of this book is when Trump and people like him use violent rhetoric and use — and make threats against the media or sue the media, that inspires hordes of copycats at a lower level. And they take their signals from people like Trump and Elon Musk. And so, we’ve seen, just since Trump came onto the national scene and started filing more lawsuits and started talking a lot about using litigation as a weapon against the media — we’ve seen a huge increase in the use of lawsuits and legal threats. And we’ve seen the rhetoric that he is using really become part of the vernacular, I think, among many conservatives. And I think it’s creating a really chilling effect, and I’m a little bit worried that the worst is yet to come.

AMY GOODMAN: David Enrich, I want to thank you so much for being with us, New York Times business investigations editor. His new book, just out, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful. To see Part 1 of our discussion, go to democracynow.org. I’m Amy Goodman. Thanks so much for joining us.