Defending the First Amendment and the Fourth Estate

We are back with new episodes this week, and we’re starting with an interview that we recorded in New York City earlier this summer. David McCraw is the Deputy General Counsel of the New York Times and author of Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts.

The First Amendment and a strong Fourth Estate are essential to a healthy democracy. McCraw spends his days making sure that journalists can do their work in the United States and around the world. This includes responding to libel suits and legal threats, reviewing stories that are likely to be the subject of a lawsuit, helping reporters who run into trouble abroad, filing Freedom of Information Act requests, and much more.

Additional Information

David’s book: Truth in Our Times

Interview Highlights

[3:30] There was a lot of speculation about the future of the First Amendment after the 2016 election. How are things holding up today?

We have a free press if the people want it. It really, in the end, depends on having an engaged citizenry. Donald Trump has talked about changing the libel laws. That doesn’t really worry me a lot. I think it’s a long process, and it’s probably not going to happen. What really is important is whether people, average voters, are going to make use the free press we have.

[5:00] How often does someone threaten a libel suit vs. actually filing one?

It’s a really important point, because when we talk about libel, it was originally intended to fix people’s reputations. Somebody says something about you that’s untrue, hurts your reputation, you go to court, you get that fixed. And, that really hasn’t changed much. We get a lot of threats. Not a lot of threats, but we get threats. We get very few lawsuits. But, those threats are really designed to use litigation, the threat of litigation, to get us to say something other than what we think should be said to the American people.

[6:28] How does the New York Times v. Sullivan case impact press freedom?

At the end of the day, Times versus Sullivan is really, a fairly simple concept. And that is, a publisher has a right to make a mistake. That if a publisher gets something wrong, and actually, even if that statement hurts somebody’s reputation, that person, if that person’s a public figure or public official, can’t win a libel suit unless the person can prove that the statement was made with actual malice.

[10:40] Where does social media fit into this picture?

One of the things that I find very curious about the President is that, in the recent years, when he’s been involved in libel suits, it’s because he’s been sued. And, he’s been sued for things he’s said on Twitter. When he starts criticizing the libel laws, he’s completely lining up on the wrong side of the ball. He should be siding with me, because he needs those defenses.

[13:45] Tell us about the letter you wrote to Donald Trump’s lawyers in October 2016.

We published a story in which, two women claimed that they had been inappropriately touched by Donald Trump many years earlier. The story happened right after the controversy over the Access Hollywood tape. Donald Trump, then a presidential candidate, had appeared at the debate on a Sunday night and defended his reputation and his conduct towards women. This story followed that. They had posted their demand to us online.

I knew that we were going to post our response online. And so, while I do think I followed exactly what the law says in these situations, and summarized it accurately, it was pointed. And, it was pointed in part because I don’t like to be threatened. It was pointed in part because I think people expect us to stand up.

[17:20] What work do you do with Freedom of Information Act requests?

The Freedom of Information Act was signed into law on July 4, 1966 by Lyndon Johnson. And, Michael Schudson at Columbia has a great book about the rise of the right to know, which details this and other parts of the history of that concept, the right to know. But, that was the heart of it, that the public has a right to know what the government’s up to. And, that includes getting documents. What we’ve seen since then is the law being gnawed away until it’s taken much much away from what one would expect to get when filing a FOIA request.

[21:15] Civil servants are often painted with a very altruistic brush. It seems like that might not be the case here.

I had this epiphany at the beginning of the Obama administration when I was invited to go to a conference of FOIA officers and speak, therefore, meeting a lot of people I’d written angry letters to. And, it’s a lot easier to write angry letters to anonymous people when you don’t know what they look like. Now, you’re in a room with a bunch of them.

They were conscientious. They didn’t have the resources, and they didn’t have the power to do what needs to be done. What’s interesting is, as I’ve gone around and talked about this with people from other countries is, a country like Mexico actually has an office that overrides agencies, so that it takes it out of the political process, and some independent agency’s deciding. And, other governments, other countries have that same sort of setup.

[27:33] What should people to do protect the First Amendment moving forward?

At the end of the day, what I’m really interested in is, seeing an American public that listens to things they disagree with, read things they disagree with, and make discerning judgment. That’s a long ways away from where we are now. It’s hard because there’s so much information out there. But, to me, that’s the only real check is that, people are going to make wise decisions about policies because they’ve made wise decisions about the information they’ve chosen.

Somebody wrote to me, and the email started out with the ominous words, “Why did you write this book?” And, I assume that’s an email that’s going someplace whereas, a sensitive author with thin skin, I don’t want to know. But, it wasn’t. She was right. She’s, “Why did you write this book? Because you should be writing for young adults.” And, that’s really an important point. We need to start much earlier in helping children understand how to read and how to discern, and how to evaluate sources.

Tthe analogy I use is that, the Internet is to information what the Las Vegas buffet is to eating. You walk in, and there’s just incredible choices. Some of them are really bad for you, but they sure taste good for awhile. And, we just need to have people who say, “I’m not going to hang around the dessert table of cable news, and make my entire diet that.”