Judge Learned Hand, revered for his eloquent and consequential defense of free speech at the height of World War I, came to fear, later in his life, that Americans had placed too much faith in lawyers and legal institutions. In 1944, at a celebration of what was then known as “I am an American Day,” which extolled American citizenship, he told an audience of more than a million people in Central Park:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
I remembered Hand’s “The Spirit of Liberty” speech while watching some of the largest American media institutions and technology companies prostrate themselves, one after another, before Donald Trump, offering obscene sums of money to settle feeble or frivolous lawsuits that one would have expected them to contest. The First Amendment gives American publishers and platforms rights that are the envy of their counterparts around the world. That today so many of these organizations evidently lack the will or courage to exercise them is frightening and dispiriting.
The spectacle of powerful media organizations debasing themselves before Mr. Trump has become so familiar that it is beginning to feel like scheduled programming. In December, ABC News agreed to pay $15 million to settle a lawsuit in which Mr. Trump contended that the network’s star anchor, George Stephanopoulos, had defamed him by saying on his weekly television program that a federal jury had found Mr. Trump liable for rape when in fact it had found him liable for sexual abuse. The payment will be earmarked for Mr. Trump’s future presidential foundation and museum; ABC also agreed to pay $1 million in legal fees.
Why the network agreed to the settlement is not entirely clear. Mr. Stephanopoulos’s statement was technically inaccurate, but that alone would not have given rise to liability. At trial, the network would have benefited from the robust protection that the First Amendment affords to criticism of public figures. Mr. Trump would also have had a difficult time proving reputational injury. Some have speculated that the material that ABC had been compelled to turn over to Mr. Trump in discovery had weakened its defense, but at least to an outsider the $15 million payment looks less like settlement than submission.
Meta’s settlement with Mr. Trump, which followed a few weeks after ABC’s, smells even more rank. Mr. Trump’s central claim in that case was that the company had unlawfully censored him in violation of the First Amendment by suspending his Facebook and Instagram accounts after the Jan. 6 riot at the Capitol. To settle the case, Meta agreed to pay Mr. Trump $25 million, most of which would be directed, again, to his presidential library. (If things continue this way, the Trump library will rival Alexandria’s.)
But if Mr. Trump’s complaint against ABC was weak, his case against Meta was laughable. Whatever one thinks of Meta’s decision to de-platform Mr. Trump, the decision was an exercise of Meta’s First Amendment rights, not a violation of Mr. Trump’s. If there was ever any doubt about this question, the Supreme Court effectively resolved it last term, when it held that social media platforms’ content-moderation decisions reflect a constitutionally protected exercise of editorial judgment. Mr. Trump had virtually no chance of prevailing in the case, and Meta’s lawyers surely knew it. It appears that Meta just wanted to pay off Mr. Trump, and that settling the case supplied it with a convenient way of doing so.
Now Paramount, which owns CBS News, is reportedly considering settling a lawsuit in which Mr. Trump claims that “60 Minutes” engaged in deceptive trade practices by editing an interview with Kamala Harris in a misleading way. That, too, is an unimpressive suit with essentially no chance of succeeding. That the complaint seeks $10 billion in damages while offering no solid evidence that Mr. Trump was actually injured underscores how frivolous it is.
But Paramount is probably not worried about liability. What it’s likely worried about is being adverse to the president at a moment when it needs his support for its proposed merger with Skydance. It was likely that same worry that led CBS News to say it would comply with the Federal Communications Commission’s demand for unedited tapes and transcripts of the Harris interview. (Anna Gomez, a Democratic commissioner at the F.C.C., called the demand “retaliatory” and said it was “designed to instill fear.”) Perhaps resistance would have been futile; we can’t know. But in a different era — say six months ago — the network would have put up a fight. At the very least, I imagine it would have asked a court to narrow the F.C.C’.s demand, or to examine the transcripts and tapes itself before determining whether they should be turned over.
Mr. Trump captured the spirit of our times when he observed in December that, “In the first term, everyone was fighting me,” but “in this term, everybody wants to be my friend.” Certainly, some of the nation’s most powerful media institutions seem to have concluded that it is simply not in their commercial interests to inconvenience the president, even if sparing him inconvenience means abandoning their own First Amendment rights. Whether the tributes they are paying to the new monarch — or in the CBS case, reportedly contemplating paying — bear the anticipated fruit, we’ll see.
What’s certain is that each settlement weakens the democratic freedoms on which these media organizations depend. They create precedents — not legal ones, but precedents nonetheless — that will shape the way that judges and the public think about press freedom and its limits. They also damage the media institutions’ prestige and credibility. CBS is especially respected for its reporting during and after World War II; Edward R. Murrow’s fearless exposure of Senator Joseph McCarthy is the stuff of legend. How will the network be remembered at the close of this era?
Each settlement also increases the pressure on other media organizations to settle their own disputes with Mr. Trump or find other ways of ingratiating themselves with him. In the days leading up to the election, the owners of The Washington Post and The Los Angeles Times both quashed editorials that would have endorsed Ms. Harris over Mr. Trump. After the election, Meta and many of the other major American platforms made million-dollar donations to Trump’s inauguration fund. It’s sometimes said that courage is contagious, but cowardice and cravenness can be, too. Soon it may be unusual and even more perilous for a news organization to protest when it is accused by the president of reportorial recklessness, however outlandish the charge might be.
Judge Hand’s celebrated defense of free speech during World War I came in a case involving a radical magazine that the postmaster of New York City had refused to carry on the grounds that it contained articles and images that might interfere with the war effort. In his opinion, Hand rebuked those who would give the government the power to suppress criticism; he described the right to dissent as a “hard-bought acquisition in the fight for freedom.” It’s a mercantile phrase — and so perhaps one that might resonate with media moguls tempted to trade their liberties for profits. In its recognition that freedom has a price, and that it must be fought for, the phrase conveys sentiments similar to the ones the judge expressed in his Spirit of Liberty speech a quarter-century later.
The First Amendment is just words on a page. Giving those words meaning — sustaining their promise, generation after generation — depends on a civic courage that seems, right now, to be in ominously short supply.
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