“Harassed, Bullied, Intimidated”: Behind the Right’s Legal Crusade Against the Press

David Enrich serves as The New York Times’ business investigations editor, overseeing a small team of reporters focused on business and law. But since the 2024 presidential election, he’s been busy doing reporting of his own on Donald Trump’s lawsuits against media entities, including ABC, CBS, The Des Moines Register, and the Pulitzer board, and the threats to editorial independence at Voice of America. He also had the cover story in The New York Times Magazine this past weekend, which was adapted from his new book and accompanied by an ominous headline: “Can the Media’s Right to Pursue the Powerful Survive Trump’s Second Term?”

That book—Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful—got underway a couple of years before Trump returned to power, but it now feels especially timely in the current political climate, amid questions of whether owners of newspapers and TV networks will stand up to a president who’s long demonized the media—and whether the conservative-majority Supreme Court could upend libel laws in America.

The idea for the book, Enrich tells me, came when he noticed the Times “getting besieged with threatening letters” from lawyers on stories concerning powerful people, leading him to realize this was happening more and more to outlets large and small. “I just kept hearing story after story after story about journalists being harassed, bullied, intimidated,” he says, and litigation (or threats of litigation) was “so bad that they were being forced to make a choice between either risking their very existence or backing down off of stories.”

In Murder the Truth, Enrich reports on a conservative legal movement that has targeted news organizations and, in particular, the landmark legal case that underpins libel law in the United States: New York Times v. Sullivan. In that 1964 case, the bar for defamation was set at journalists having acted in reckless disregard for the facts or having knowingly spread false information, a standard known as “actual malice.” Enrich digs into a number of cases, including Sarah Palin’s ongoing suit against his employer over a 2017 editorial, a winding legal saga covered in this Vanity Fair excerpt.

The fate of Sullivan rests in the hands of a Supreme Court that has not shied away from dismissing long-standing precedent, as it did in the 2022 Dobbs decision that killed Roe v. Wade. So far two justices, Clarence Thomas and Neil Gorsuch, have signaled a desire to revisit the libel standard, but only four are needed to bring a case before the high court. Even the justices’ chipping away at Sullivan, which Enrich sees as more likely than their overturning it completely, “has the potential to have really deep, chilling effects on the media’s ability to investigate rich and powerful people.” It’s important, he says, for journalists to cover such people at “a local, state, and national level without being worried that if they make an innocent mistake and screw something up inadvertently, they’re going to get sued into oblivion.”

This conversation has been edited for length and clarity.

Vanity Fair: What jumps out first to me from this book is it feels especially well-timed given the media lawsuits that have been playing out recently involving Donald Trump and several media and tech companies, and we can get to that in a minute. But tell me first about the genesis of this book.

David Enrich: I run a small team of investigative reporters at the Times, and I think it was around 2022 that I started noticing that it seemed like basically every time we were starting to dig into a powerful person or institution, [we] were getting besieged with threatening letters from lawyers representing those people. And it just seemed like it was happening every time.

I started asking around among colleagues at the Times and my previous employer, The Wall Street Journal, and they were noticing the same trend. And it just got me wondering what effect that might be having on smaller news outlets and independent publishers and independent journalists…. I went to the press associations in all 50 states and just asked them what they were seeing. That led me to be introduced to a lot of local journalists and media lawyers all over the country. And I just kept hearing story after story after story about journalists being harassed, bullied, intimidated, and often sued out of existence—or at least the threats were so bad, and litigation was so bad, that they were being forced to make a choice between either risking their very existence or backing down off of stories that, for whatever reason, struck them as really important.

I also started noticing that some of the lawyers that were most prolific at sending these letters and filing lawsuits—at the same time they were doing that, [they] were also increasingly loudly and successfully pushing for New York Times v. Sullivan to be overturned or narrowed, which obviously would make it easier for such lawsuits to succeed and for such intimidation tactics to be effective, and also would improve the business model of these lawyers and make what they do a lot more lucrative.

It does feel like a perfect storm in that you have this broader demonization of journalism—suggestions that journalists are corrupt, are the enemy—happening at the same time that you have, in the legal realm, cases against news organizations. So it feels like the two are kind of working in tandem together.

It was a perfect storm because, as you just said, you have Trump, who—in 2016, a big part of his campaign and a big part of his presidency in his first term was bashing the media. And look, that’s a time-honored tradition from politicians of both parties. But Trump took it to a much more intense and personal and kind of borderline-violent level, and that is both contributing to and reflecting the growing distrust in the media. And it also inspired a lot of people all over the country, who were Trump supporters or allies, to adopt similar tactics.

So in the space of a very short period of time, this went from being kind of a fringe little sideline business for a few lawyers to becoming, I think, one of the most pronounced trends in the legal industry. And it’s been having really grave and profound effects on the way journalists all over the country do their jobs.

The one case that journalists seem to know, if they know any case, is Times v. Sullivan, and most journalists can talk about whether they believe somebody meets the bar as a public figure, the “actual malice” standard. This is kind of foundational in what we do every day. And in the book you write about how it is increasingly under threat because we could get to a point where there are five of nine Supreme Court justices who will rule against it. And can you tell me a bit about the evolution of two of them in the book, Clarence Thomas and Neil Gorsuch, and where you see things going with some of these other cases that may rise up to the Supreme Court?

The first thing I would emphasize, just as a starting point, is that for a very, very long time, New York Times v. Sullivan was not only the law of the land, but there was a broad bipartisan consensus supporting it. And again, this is not something about liberals or conservatives; everyone thought it was a good thing because it protects all voices regardless of party or ideology.

Justice Thomas, in his confirmation hearings in 1991, was asked about the Sullivan decision. It was on the fifth day of his hearings, and he, like any other judicial nominee, had perfected the art of dodging senators’ questions about specific cases. And the answer he gave on Sullivan was one of the most specific and, I think, direct answers he’d given during his entire hearings.

[“I think what the Court was attempting to do there [in Sullivan] was of course to balance the First Amendment rights, the freedom of the press as we know it, and to not have that in a way impeded by one’s abilities to sue the media or to intimidate the media,” Thomas said in the hearing, adding: “I at this moment certainly have not thought about changing that standard and have no agenda to change that standard.”]

And he was saying that based on his own personal experience in that moment, being in a kind of uncomfortable media spotlight. And so that was 1991. Thomas didn’t utter another word about Sullivan, as far as I’m aware, until 2019.

He didn’t utter a lot of words in that interim.

Fair, fair. Although, he did issue a lot of opinions in that period.

You can trace the evolution of Thomas’s thinking about the media a little bit. So in 1991, he said this stuff during his confirmation hearing, supporting the media’s right to investigate—and even when it made public officials very uncomfortable—then he goes through the Anita Hill saga and survives. But it really changed his worldview, I think, and it made him view the press as the enemy. And he wouldn’t talk to me for this book. So I don’t really know to what extent his clear animosity and, I think, hatred toward the mainstream media contributed to his change of thinking. But what we know is that by 2019, he had decided [Sullivan was] wrongly decided and that he was going to spearhead a campaign, essentially, to get it overturned.

So he issued an opinion in an obscure case in 2019, calling for its [reconsideration]l. And that really opened the floodgates. At that point there was a bunch of activists and lawyers who had already been campaigning behind the scenes to have this happen, but it had not gotten a whole lot of traction. Thomas’s opinion was like the starter’s pistol being fired, and that was followed by a whole succession of other judges and justices who jumped on this bandwagon. Larry Silberman, who was a really powerful federal appeals court judge in DC and was a longtime friend and supporter of Justice Thomas, came out [with] his own opinion attacking Sullivan.

In 2021, Neil Gorsuch raised his hand as well. So Gorsuch’s argument was a little different than Thomas’s, and his point was that, basically, Sullivan allows for the proliferation of disinformation and discourages news outlets from being careful and checking facts and things like that, which, for the record, I think is a load of nonsense.

I think any journalist who has spent weeks or months nailing down specific facts and has lost sleep worrying if they got everything right would argue against that.

Yeah, exactly. And the entire intellectual underpinning of Gorsuch’s opinion was actually this obscure law review article written by a professor in Rhode Island, and I went in detail through the law review article—and the thinking behind it, I believe, was quite flawed, but it also included a bunch of data that had been wrongly interpreted. And Gorsuch, in his opinion, not only cited the logic that was in this law review article, but also relied on the faulty data that was in it.

So you had Thomas and Gorsuch on the Supreme Court, both calling for [reconsideration]. And that’s two justices; you need four to get a case accepted to be heard. And I don’t know what’s going to happen. I mean, there are a couple of justices who I think might consider accepting a case. It has not happened yet.

But to me, the most likely scenario is not that the Court will overturn Sullivan outright. I think there are some intermediate steps that are more likely to happen first. Sullivan said that public officials—so government employees, people like that—had to meet this higher bar to win in defamation cases. There were a number of subsequent Supreme Court decisions that broadened the group of people who had to meet that higher standard to all sorts of different public figures, so nongovernment people. And I think it’s much more likely that the Supreme Court maybe narrows that circle of people that it applies to and chips away at it in that sense, rather than going for Sullivan outright.

But I think even if that is the case, and that’s what happens, that still has the potential to have really deep, chilling effects on the media’s ability to investigate rich and powerful people, because people in the government are often very powerful. But so are your run-of-the-mill billionaire or, even on a local level, the guy who owns the real estate company that’s buying up all the property in town. And it’s really important for journalists and news outlets to be able to aggressively cover people in institutions like that on a local, state, and national level without being worried that if they make an innocent mistake and screw something up inadvertently, they’re going to get sued into oblivion.

And that’s what these Supreme Court decisions protect. They make it so that you have a right as a journalist, or just a member of the public, to scrutinize and criticize people who wield power in society without having to worry that an innocent mistake is going to financially ruin you. I just think that’s a really important right. And I think that if the Supreme Court starts narrowing the circle of people who have to meet this higher bar to win defamation cases, it is going to make it harder for journalists to properly do their jobs.

You write about Donald Trump, on the campaign trail in 2016, talking about opening up libel laws as well as disparaging the news media. And I noticed a couple of weeks ago, with the publication of Michael Wolff’s All or Nothing, he was railing against anonymous sources and wrote on Truth Social, “Maybe we will create some NICE NEW LAW.” So how seriously should journalists take Trump’s threats against the media? We’ve seen it now for nearly 10 years. Where do you see things?

I don’t think his rhetoric is the problem. Look, you can’t create a new law to make it easier to sue media companies. It’s a question of the Supreme Court’s interpretation of the First Amendment, but I think it’s really dangerous to understate the severity of what Trump is in some ways starting to do and might continue to do given the power he has as president. I mean, we’ve already seen—forget about the rhetoric in his Truth Social posts or on the campaign trail. Since he won the election, he has filed lawsuits against the media; he has threatened more lawsuits against the media. His White House has restricted access to events for news outlets that have done things that he doesn’t like. His FCC has opened investigations into broadcasters.

He’s got an FBI director who has openly and explicitly said that one of his goals would be to pursue media companies or journalists. And I think that you’ve got to pay attention to that…. Him saying, ‘We’re going to open up the libel laws,’ I think that’s kind of meaningless. But I think it’s indicative of a much broader attempt to corral the media. And I think it’s important to also think about why he and his allies want to do that. And I think in his first term, part of that was that it was just an effective politics for him to kind of rev up his base by attacking media elitists. And that’s something that presidents of both parties have done at points in the past. Most notably, Nixon.

What’s different this time around, I think, is that a lot of his agenda is being powered by lies and distortions and conspiracy theories. And having a powerful, vigorous media constantly refuting those lies and distortions, and being taken seriously, poses a real threat to his administration’s ability to get what they want done. So I see his attacks on the media as substantive and designed to weaken and delegitimize the media further because of the threat a strong, healthy media potentially poses to his ability to enact his agenda. And I think it’s easy to dismiss the nonsense that gets said on social media, and I think probably that should be dismissed. But the threats and the actions he and his administration are taking are real. And we’re only seven weeks in…. So I think this is the beginning of a process, not the end.

Right. And even just after the election in November, we saw some ominous signs about whether media and tech companies would defend themselves in court against Donald Trump. Donald Trump has sued media companies and various other entities for years. And in terms of his suits or his threats against news organizations, they tended not to go very far. But now we saw ABC—

No, he almost always loses.

Right.

He has an extraordinary track record of losing in these lawsuits.

And now we see ABC settling for $15 million just after the election. We have Meta settling for [$25 million]. As you have been reporting in The New York Times, Paramount, the parent company of CBS, is in talks to settle a case regarding 60 Minutes’ interview with Kamala Harris. And I think these are cases that, in the past, large entities like Disney, Meta, and Paramount would fight on behalf of the First Amendment. And the fact that two of them settled and one is in talks suggests a lack of appetite, whether it’s fear of Trump’s administration putting regulations or whatever the concern is. It feels like it’s driven by fear more than necessarily the merits of these cases.

I completely agree. I mean, every legal expert I speak to, aside from lawyers representing Trump’s side, agrees that most of these cases—certainly the ABC case and the CBS 60 Minutes case—lack merit. They’re not good arguments he’s making. And the facts just aren’t in his favor. And the 60 Minutes thing, we now have the full, unedited clips and transcripts of what was said. And to a reasonable person, it does not indicate that it was deceptively edited. It just doesn’t. Disagree with how it’s edited maybe, but that’s clearly an editorial decision that falls under the purview of the First Amendment.

But look, I mean, the president of the United States has a tremendous amount of power, and this president in particular has shown a willingness to be vindictive and to exercise that power. And so in Paramount’s case, they have a multibillion-dollar merger that needs federal approval, and we and others have reported that that is the reason—or a big part of the reason, at least—that they are entertaining the notion of settling this case. So they fear that if they have outstanding litigation against Trump, his administration will block their deal. I’ve written that so many times at this point, and read other people writing that so many times, that it almost seems just standard. But it’s not standard at all. It’s crazy. That is not the way things have worked in this country up until very recently.

And the entire conception of how the First Amendment is supposed to work, going back hundreds of years now, is that the media is supposed to be vigorous in its coverage of public officials, like the president, and that that’s a really important check on the power of the government. And when you have the government willing and able to wield power over the media in a way that can influence its coverage or lead it to pull punches, I think that really defeats the purpose of having a vigorous media and a vigorous, strongly enforced First Amendment.

I’ve argued in the past, as others have, that journalism still can be opaque to normal people. They may actually believe that journalists just publish whatever they hear and don’t have a sense of the kind of rigorous reporting and fact-checking that I think legitimate news organizations do and responsible journalists do. And I think that lack of understanding contributes to the distrust in the news media. It’s certainly not the only thing. You’re coming out with this book now—is there a way to make the public care about something like Times v. Sullivan or just why clamping down on the press pool, or suing these organizations, impacts them and impacts American democracy?

“I don’t know” is the short answer. I think that there has been a lot of trust lost over the fairly recent past, and I think it’s really important to try and figure out ways to rebuild that trust. And to me, that’s the key thing for journalists to be focusing on.

I think one of the most important things is transparency. And I think the media, including The New York Times, has been really good in the past about when we get a fact wrong—we correct it and we own up to it. What I think we’ve been less good at is finding a way to be transparent and holding ourselves accountable when we get broader things wrong, when a line of coverage maybe isn’t quite right, when we’ve been too soft on someone or too hard on someone else. And you can’t go back and change history, but you can make an effort to be a little more self-critical and a little more open to outside criticism.And I don’t know exactly what that looks like. I think, at the very least, it’s kind of like a spiritual change in how we need to think about just being a little less defensive about stuff.

The problem is that we are operating in good faith, but we are flawed and imperfect and we screw up. And the other side—people who are trying to destroy the media and weaken the media—I think most of the time are not operating in good faith. I mean, there are a lot of people that I’ve dealt with over the years in Trumpworld who know full well the fact-checking that we do, the rigor that we bring to reporting, because they’re part of it. We go to them to make sure we’re not getting things wrong. We give them ample time to comment…. And then when they see what we’ve written and they don’t like what we’ve written for whatever reason, they publicly attack us and claim things that just aren’t true.

So I think there’s a very bad faith effort to destroy the media. And our hands are a little tied, and it’s always because we are operating in good faith and we’re not going to burn sources and just abandon the rigor with which we report on things. So to me, the only way to attack this is the same sunlight that we want to bring to the affairs of powerful people in and out of government; we need to expose ourselves to that same sunlight a little bit. And again, I don’t know what that looks like in detail, but I think it starts with being a little more open-minded and honest and candid with readers when we get things wrong and when there’s things we just wish we could have done a little bit differently in hindsight. It’s okay to screw up, and that’s part of being human. And I don’t think the way the media in general has handled that recently is quite sufficient.