Trump’s Attacks on the Press and on Freedom of Expression

President Donald Trump has always bashed the press. But his attacks are no longer just rhetorical — he’s using lawsuits to intimidate the news media, and he’s inspired a conservative legal movement to overturn the New York Times Co. v. Sullivan. The landmark Supreme Court decision protects freedom of speech and freedom of the press, and unfortunately, Trump’s attempt to destroy it are part of a larger pattern of tearing away at our right to freedom of expression. To break it all down, Kara speaks to three exceptional journalists: David Enrich, a deputy investigations editor for The New York Times and the author of four books, including the newly released, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful; Ruth Marcus, a former associate editor and columnist for The Washington Post and the author of Supreme Ambition: Brett Kavanaugh and the Conservative Takeover; and Ben Mullin, a media reporter for The New York Times covers the major players in the news and entertainment business. Questions? Comments? Email us at [email protected] or find us on Instagram, TikTok, and Bluesky @onwithkaraswisher. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Kara Swisher?

  Hey, how you doing?

• 0:01Speaker 01

  Good, how are you? How's the acquisition going?

• 0:04Kara Swisher?

  We'll see. It's a slow, it's a slow effort by Kara Swisher. I wear them down eventually.

• 0:21Kara Swisher?

  Hi, everyone. From New York Magazine and the Vox Media Podcast Network, this is On with Kara Swisher, and I'm Kara Swisher. President Donald Trump loves bashing the press. In fact, it's his favorite sport. Those attacks helped him win the presidency in 2016, and they formed a core of his appeal. But the onslaught is no longer just rhetorical. Trump is using lawsuits to intimidate the press, and he's inspired a conservative legal movement to overturn the Supreme Court case that sets a high bar for proving defamation. And his assault on the press is part of a larger pattern of intimidating freedom of expression on multiple fronts, including against the legal profession, universities, and even corporations that implement DEI. So I'm speaking with a panel of exceptional journalists to break it all down. David Enrich is the Business Investigations Editor for The New York Times and author

• 1:06Kara Swisher?

  of a very timely book, Murder, The Truth: Fear, The First Amendment, and A Secret Campaign to Protect the Powerful. Ruth Marcus was a longtime columnist for The Washington Post and also a fantastic reporter who recently resigned after one of her columns was spiked. Since then, she's been on a tear writing brilliant pieces for The New Yorker, and I've known her for a very long time, and she's, again, a tremendous journalist. And Ben Mullen is a media reporter for The New York Times who's constantly getting scoops on the news biz. So stick around.

• 1:50Speaker 02

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• 3:11Speaker 04

  I'm Josh Mucio, host of The Pitch, where startup founders raise millions and listeners can invest. For our sweet season 16, we're giving you more of what you love and less of what you don't. Software is out. Actual cool stuff is in. We've got consumer brands, deep tech that changes the weather. Our big vision is to make it rain and snow on demand. We've got hardware that helps blind people see and dairy. I never imagined my life journey would be that. Season 16 of The Pitch is out now. Listen wherever you get your podcasts. This season is presented by Engine.

• 3:52Kara Swisher?

  David, Ruth, Ben, thanks for coming on.

• 3:54Speaker 05

  Thanks for having us. Thanks for having us.

• 3:56Kara Swisher?

  So each of you, how would you describe the current state of news media in America? The 2024 World Press Freedom Index ranked America 55th out of 180 countries and labeled it as problematic. And that was before President Trump took office for the second time. Is that accurate, alarmist, or are things even worse than that ranking suggests? Let's hear from all three of you, starting with Ruth, then Ben, then David.

• 4:18Speaker 01

  Kara, I saw this word the other day, parlous, in case anybody wants to work on their SAT verbal scores. And it means fragile and endangered, and I think that really captures where I think the news media is. I think we're getting incoming from two directions at once, and I know we'll talk about both of them. One direction is something you know about way better than I do, which is our collapsing or collapsed or at least needs to figure out a way for newspapers like the Washington Post, which I just left, to regenerate our collapsing business model.

• 4:59Speaker 01

  And then is the kind of separate, but at least equally scary incoming from an administration that describes us as enemies of the state and is going to use whatever powers are within its purview or more than that, because it will assert powers it doesn't have, to try to cower and intimidate us into submission. So that's my cheery thought. Parlous.

• 5:25Kara Swisher?

  Okay, good. Okay, good. Ben?

• 5:28Speaker 06

  I agree completely with Ruth. I think the economics part of this is very important. And I also, you know, it occurs to me over the weekend with the way that the White House Correspondents' Association has been responding to this move from the Trump administration, essentially, to remove people from the press pool and to basically determine who sits in the briefing room. I've been talking to people in the White House Correspondents' Association who basically are very concerned with the way this is being handled. And so I do think, you know, after 2016 and the Trump 1.0, I think people thought that the media, more or less, kind of was aware of how to cover Trump. But I think a lot of the things that the White House is doing right now is catching

• 6:13Speaker 06

  the press on its back foot. And so I think, generally speaking, the press had years to prepare, and in some cases, I don't think they really are ready. And the last thing I would say is, I think some of this has to do with leadership. You know, the problem... I think is that for a very long time, the best and the brightest in the media, there was a succession plan. There was great people joining the media, but I think a lot of the problem right now is that the bench is a little small. And a lot of the best and the brightest maybe aren't going into media anymore. You know, they're going into places whose business models haven't been as eroded. And so I think, um, I think that's a big struggle.

• 6:52Kara Swisher?

  That's a really good point. David?

• 6:54Speaker 05

  I mean, I think it depends what you mean by the media and by the press. And I think there is a kind of a barbell effect going on right now. There are some very big establishment news outlets like where Ben and I work that are thriving. And I think, you know, we're imperfect. We make a lot of mistakes, but I think by and large we do a pretty good job. And then there's a lot of stuff in the middle that is really struggling. But then there's this proliferation of independent voices right now that I think is a really healthy sign for journalism. And for democracy, frankly, and I think that, I mean, is paralysed to use Ruth's word in that. You know, independent journalists, for the most part, are susceptible to the threats coming from the White House and the threats from legal action and things like that.

• 7:38Speaker 05

  But I think it's a real opportunity right now for the media writ large to be kind of thinking about new opportunities. And kind of embracing this explosion of diversity and new voices that we're seeing, which I think.

• 7:52Kara Swisher?

  They are small, though. Having started many of them for many years, they're small. They're small. They are small businesses in terms of comparatively compared to the large.

• 8:00Speaker 05

  They are, but they can wield a lot of influence. And one of the things I've just seen, I've become a fairly enthusiastic user of Blue Sky. And I've seen a lot of voices who I had never heard of before, which is probably a failing on my part. That are breaking a ton of news and they're doing it in a way that is not the way the New York Times or the Washington Post or the Wall Street Journal will do it. They're doing it direct to their viewers and their, their readers and. They're rebuilding trust in a way that I think the mainstream media has really struggled mightily with over the past years.

• 8:30Kara Swisher?

  Well, we'll talk about trust in a minute because I think it goes hand in glove to the ease of attacks. But let's talk about the environment the news media is operating in. We just covered a couple of the economic problems, the pressure and everything else. Ben, the FCC Chair Brendan Carr has ordered investigations into Comcast, Verizon, ABC, NBC, NPR, CBS and YouTube TV. Democratic Senator Blumenthal calls them unprecedented intrusive investigations against media broadcasters that are arbitrary and capricious pretenses. Just for full disclosure, I call Brendan Carr an unctuous toady. Give us your reaction.

• 9:05Speaker 06

  I think many media companies are afraid of Brendan Carr. I mean, we saw Paramount announce its rollback of its DEI policies. We saw Disney do the same before Brendan Carr's investigation. Paramount obviously has a merger it needs to get through. And so I think one of the things you're seeing is many of these companies are, you know, taking a hard look at their DEI policies in part because they all are going to have business before the federal government, particularly Brendan Carr, and they probably don't want to run afoul of him.

• 9:41Speaker 05

  Can I try and put a finer point on this?

• 9:43Kara Swisher?

  Sure.

• 9:43Speaker 05

  And I don't think this is about DEI that much. I think this is about the Trump administration in general, trying to find any points of vulnerability and weakness that news outlets have, whether the large newspapers or large broadcast networks, and trying to pressure them and trying to make their life uncomfortable.

• 10:03Kara Swisher?

  All right. In that vein, the Associated Press is banned from the White House press pool. Trump's upset that it won't refer to the Gulf of Mexico as the Gulf of America. AP sued, and as Executive Editor Julia Pace put it, the lawsuit isn't about the name of the Gulf, but quote, "It's really about whether the government can control what you say." Talk about that example. Why ban the AP for something as trivial as the name of the Gulf? And what's the larger strategy?

• 10:25Speaker 05

  They're doing it because it allows them to flex their muscles. And it sends a very loud message, not just to the AP, but to every other news outlet and journalist in America, that if you write things or say- Say things that are not in line with what the Trump administration wants you to. They are going to consider using their enormous levers of power to get you to comply. And it's not just the AP, right? I mean, Trump has personally sued CBS News and the Des Moines Register and their pollster. He has issued a variety of other private legal threats against major news outlets. He has his FCC chairman, as we just said, exerting a lot of pressure. So this is a really multifaceted assault, I think, by the administration on journalism.

• 11:06Speaker 05

  And they're trying to get people scared that if they speak up or investigate or are critical or do not get in line, that there could be real potential consequences.

• 11:17Kara Swisher?

  Supercussions.

• 11:18Speaker 05

  Yeah.

• 11:18Kara Swisher?

  Go ahead.

• 11:19Speaker 01

  They are, they, it's not just that they're trying to get people scared. They are demonstrably getting people scared. You see the spate of settlements, and I'm using air quotes here, by ABC, essentially payoffs to the Trump or Trump-related entities in order to avoid harm to businesses that are extraneous to the media companies that are, or the news organizations that are at the center of this. And I think it shows one of the harms of having news organizations housed within larger, sprawling corporate enterprises or related to larger, sprawling corporate enterprises.

• 12:04Speaker 01

  But I want to make one more point, which is, this is, this is a multifaceted assault on the news media, but it is not simply an assault on the news media. There is a similar, parallel assault on other vectors of possible opposition to the Trump administration. We see an assault on law firms. We see an assault on judges. We see an assault on universities. This is all of a piece because if you can scare enough people against standing up to you, then you can run roughshod over constitutional rights. And this, I, and I, for people who don't know me, I am not normally an alarmist person, but I am in High alarm because of the totality of this assault.

• 12:48Kara Swisher?

  Okay, let me, let me ask you specifically, the Trump administration is working on dismailing the US Agency for Global Media in response to a recent Wall Street Journal opinion headline read "Defunding Voice of America is a Win for China and Iran." Ruth, you recently posted on Blue Sky, "Thinking Today of All the Fine Journalists at Voice of America, Radio for Europe and Elsewhere, Who Can No Longer Do Their Excellent and Indispensable Work." Talk about the indispensability, because I think a lot of people don't understand it or think it's an anachronism from the past. What's the larger strategy here? Killing Voice of America doesn't actually save much money.

• 13:19Speaker 01

  This is, as with killing USAID, this is, number one, not in any way about saving money because the amounts are trivial. And number two, this is a use of American soft power to show other democracies and other nations that journalism, that free, objective, unfettered by the government journalism, what it can bring to a society. And now, in another one of these things that is going to hurt our country in the long run, because it's turning us from, I'm just going to continue to sound overwrought here, from a beacon of democracy into a, you know, an instrument of repression, we are shutting

• 14:04Speaker 01

  down independent, trusted voices, and we are showing ourselves to be not the shining example, but a example of what happens when you interfere with free journalism.

• 14:17Kara Swisher?

  So Ben, last week, you covered a congressional hearing on PBS and NPR where Republicans accused the public broadcasters of liberal bias. Most of them quoted Yuri Berliner, by the way, a very grumpy person in my experience, a former senior editor for NPR who wrote an expose last year, I'm not even going to call it an expose, it was just a rant, it was a grumpy rant. According to him, NPR's DC office employed 87 registered Democrats and zero registered Republicans. Talk a little bit about this, because also Trump and others are calling out the head of NPR, Catherine Mayer, and somehow trying to link her to Signal Gate because she's on the board of Signal, and for calling Trump a fascist. She also did, but talk a little bit about that.

• 14:57Speaker 06

  Right.

• 14:58Kara Swisher?

  Because they don't get a lot of their money from Congress.

• 15:01Speaker 06

  That's right. NPR gets between, depending on how you slice it, gets between, I think, one and 5% of their money, either directly or indirectly from the Corporation for Public Broadcasting, which is the, you know, government-funded organization that funds public media in the US. And so when I interviewed Marjorie Taylor Greene, I think, two weeks ago, ahead of these hearings, the point that she made was, well, they shouldn't receive any funding. And if it's only 1%, well, then they can do without 1%. But if you talk to people on the other side, what they say is that for every dollar that's given to one of the local public media stations, they are able to fundraise basically $7 to match it. So they view that public funding as kind of a kernel around which they build their business.

• 15:44Speaker 06

  Crucially, public media in the United States, if it's defunded, it's not going to affect probably the national organizations like NPR and PBS as much. What it will affect is the local stations in very rural areas, which are news deserts that actually do need to be served by public media.

• 16:02Kara Swisher?

  But what about the idea that public media is biased against conservatives? I mean, there are, there are points to be made. A lot of people are Democrats. I think they're very fair, both of them, and in fact, have a whole panoply of stuff that has nothing to do with politics. How do you push back on that notion?

• 16:18Speaker 06

  Well, the objections that were raised during the hearing were around NPR's coverage of the Hunter Biden laptop story and around the reporting around President Trump's campaign's connections to Russia. Interestingly, during the hearing, Catherine Marr made an admission that I don't think I've seen her make elsewhere, which was that NPR kind of aired in its coverage of the Hunter Biden laptop story. So that was a notable admission, and people at NPR basically took note of that. But I think some of these accusations that Catherine Marr is some kind of secret intelligence plant, or that she was in an earlier point in her career, that stuff is obviously not true.

• 16:58Kara Swisher?

  But is it getting traction, or is it just a feint to be able to remove NPR and others from the, from the field?

• 17:05Speaker 06

  On the day after the hearing on Thursday, Ronnie Jackson, who I believe is President Trump's former personal physician, put forward a bill essentially that would defund NPR and PBS. So I think this is real. I mean, I think there's a real chance this could happen.

• 17:21Kara Swisher?

  Which they've tried for years.

• 17:23Speaker 05

  Well, what I was gonna say is that there is, look, the media, including NPR, certainly including The New York Times, including The Washington Post, we are imperfect. We screw up. We make mistakes. We're not always the best at acknowledging those mistakes. We have biases. And sometimes those biases lead us to come down too hard on someone or too soft on someone. But in general, in my experience, the journalists and news organizations are operating in good faith. And yes, we're imperfect, but those mistakes are honest ones. What is not in good faith are the attacks that are coming from the likes of Marjorie Taylor Greene. She knows full well the journalists are doing their best. She disagrees with some of what they produce. But this is, I really, I keep coming back to the fact that this is, this is a broad campaign that is designed

• 18:06Speaker 05

  to undercut the credibility and to frankly delegitimize news outlets like NPR, not because people think that they are ideologically biased, but because they are doing their best to report the truth and correct distortions and lies. And frankly, a lot of what is coming out of the Trump administration over the past two months have been distortions and lies. So they're using to promote their agenda. And so I think this is part of a broad effort to delegitimize and weaken institutions and individuals that are really kind of speaking truth and trying to correct and refute the deliberately wrong statements that are often coming out of the administration and coming out of people like Marjorie Taylor Greene.

• 18:51Kara Swisher?

  We'll be back in a minute.

• 19:05Speaker 02

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• 19:49Kara Swisher?

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• 22:10Kara Swisher?

  All right, let's pivot and focus on the legal environment the media is operating in. David, your book Murder, the Truth, Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, so that the attempts to over-trim and chip away at New York Times Company versus Sullivan, the Supreme Court case that establishes a high bar for proving defamation. Talk a little bit about the secret campaign mentioned in the subtitle and how it operates.

• 22:31Speaker 05

  Well, this started kind of organically with a bunch of lawyers who sue the media and threaten the media for a living, really becoming increasingly outspoken about the fact that New York Times versus Sullivan creates a very high bar for such lawsuits by public figures to win. And they started chipping away at it. The real kind of crucial moment came when Clarence Thomas, in 2019, added his voice to this chorus calling for it to be overturned, or at least narrowed. And since then, it has just really exploded. There's been a whole bunch of conservative legal groups that have jumped on the bandwagon. There have been judges at the Federal and state level all over the country who have embraced this idea.

• 23:15Speaker 05

  And there have been lawyers all over the country who have been inspired by Trump, by Clarence Thomas, by others, and have started bringing legal actions, not just against the likes of the New York Times or the Wall Street Journal, but against smaller news outlets and independent journalists. And oftentimes, these, it's basically putting, giving a choice to independent and smaller outlets, where they either comply and walk away from critical coverage or investigations of powerful local people, or they risk getting sued into oblivion. And, and my book kind of goes through a bunch of these examples, but that's happening. And it is driving places and people out of business. And it is essentially a quiet form of censorship that's occurring all over the country.

• 23:58Speaker 05

  And, you know, I mentioned earlier, just the great trend that we're seeing with this explosion of independent voices on Substack or on podcasts or whatever. And it is those voices that are at unique, and I think existential risk from this emerging type of lawfare that we're seeing.

• 24:16Kara Swisher?

  Right, but it's not just small independent companies. Disney, ABC News's parent company settled defamation lawsuit brought by Trump. That was when Trump sued after George Stephanopoulos incorrectly said that Trump had been liable for rape. Ben, this was seen as a very winnable case for ABC. Talk about why they settled and what does it say about Bob Iger and the rest of their corporate leadership? On one hand, I can see why they did it because he said it a lot. On the other, maybe there were texts or something like that that were problematic. But how do you, how do you look at it? Because most people thought ABC would have won this hands down.

• 24:50Speaker 06

  Yeah, I think that's the consensus from a lot of First Amendment lawyers that I, that I've heard from is that ABC probably would have won that case. I was hearing from people at the time that, and I think this may have been reported in the New York Post, that George Stephanopoulos had, had been warned by somebody on the production side ahead of time on this specific point. And if that were true, then it would have made his argument a little more difficult relative to whether he had actual malice when he reported. This because if he was warned, the the other side might be able to argue that he had displayed reckless disregard for truth. So there's there's some stuff that we don't know that may have been unearthed in discovery that could have made things difficult for Disney.

• 25:33Speaker 06

  But I think the the perception from people outside was that Disney did not want to pick a fight with President Trump, basically.

• 25:40Kara Swisher?

  But Ruth, during the 2016 election, Trump actually sat down with you and the rest of the Washington Post editorial board and discussed comments he made about wanting to open up libel laws. This is way back in 2000. This is something that's been on his line. According to David, those comments have now metastasized into this larger political and legal movement. At the time, what was your takeaway from that meeting? Did you ever imagine we get to this point where Sullivan is actually under threat? And let me add, is it under threat? What is the appetite? You know, talk about previously and then now. And what is what about the rest of the course? Obviously, Thomas has been open about overturning Sullivan. Even Justin Kagan has written skeptically about Sullivan. We could be have another another abortion situation here.

• 26:22Speaker 01

  We we could, and David knows way more about this than I do. But at the moment, I do not count up the votes on the court to overrule New York Times v. Sullivan. There may be some votes, but I still think probably not a majority to severely limit the protections of New York Times v. Sullivan. But I don't think that should make anybody feel complacent. The reason is that even with the protections of the case, and David alluded to this, the situation that we face is that, as we see, major media organizations, particularly those

• 27:01Speaker 01

  with extraneous businesses, have every reason to be cowed by this administration, which is going to use its power in very malevolent ways to bully people into submission. Big media organizations are going to be intimidated. And let me tell you, the smaller ones, the individual people with substacks, they could face, as David suggested, ruinous moments if they are gone after, even under the high standards that we have now.

• 27:29Kara Swisher?

  When he said that, it's The time, what did you think? What did you ask about that?

• 27:33Speaker 01

  He had thought, well, because we cared about it. This is March of 2016. It looked at the moment like that Donald Trump was going to be the Republican nominee. He had said these ominous things about cutting back the libel laws. I wanted to understand what it was that he meant by that. I think I wrote a column immediately after that saying that he didn't understand anything about the need for protections of the media and had no respect for our, really, our constitutionally defined and protected role and how dangerous it would be to cut back on the protections of New York Times v. Sullivan.

• 28:13Speaker 01

  I have to say, the thing that I did not imagine was media organizations being as intimidated as they are. And also, all of the other ways, clever ways, that you don't need the courts to go along with you on, that an administration that's bent on silencing opposition can use to try to intimidate all of us.

• 28:35Kara Swisher?

  So, David, you said they might not overturn it. What are the chip away in practical terms? Give me an example.

• 28:42Speaker 05

  Right, yeah. And so, I mean, I agree with Ruth that there might not be enough votes to overturn it outright. I think a much more likely scenario is that there's some narrowing of it. So, and the original New York Times versus Sullivan decision applied only to public officials, so like elected leaders, people like that. And in subsequent decisions, the court broadened it out to include public figures, so like a billionaire, or a celebrity, or a university president, someone like that. And so, I think one of the, certainly one of the things that advocates on the right are trying to do is to get the court to narrow the group of public figures, if not eliminate public figures altogether, as a class of people who are subject to these higher standards. And, you know, there are some cases working

• 29:23Speaker 05

  their way through the federal court system right now that might be good test cases for the Supreme Court to do that. And if they were to narrow it so it only applies to public officials, or it only applies to a smaller group of public figures, I mean, that is, it sounds kind of technical and boring, but it's actually really important. I think because it would

• 29:42Kara Swisher?

  Yeah, it's as long as Elon still stays in that group.

• 29:45Speaker 05

  Well, but even Elon's probably gonna stay in the group is my guess, but there's, you know, if you're a local news outlet or if you're the New York Times and you want to write about someone who is in the public eye, is in the middle of a public controversy, is holding great sway over something like at the moment, you need the journalists need to have the breathing room to be able to write about that person aggressively and critically without worrying that an honest mistake is going to open them up to liability.

• 30:10Kara Swisher?

  So speaking of that, Trump isn't just using defamation suits to attack the press. He's also using state consumer protection laws to sue the Des Moines Register in Iowa and to demand $20 billion in damages from CBS News in Texas. Ben, first explain how these suits work and then give us your prediction on what will happen with the CBS News lawsuit. Their parent company Paramount, as everybody knows, is trying to close a merger with Skydance.

• 30:33Speaker 06

  So David, correct me if I'm wrong, because I think you're more well versed on the specific legal points than I am, but my understanding is that essentially their their consumer fraud statutes in both Texas and in Iowa. And essentially what Trump is alleging is that when CBS News and the Des Moines Register published or aired their 60 minute segment and published their poll respectively, they were essentially misleading consumers and that's the basis for his claim. Now, many lawyers, First Amendment experts that we're talking to basically say that these claims do not have a prayer of succeeding in court. But the problem is that at least in the case of Paramount, there are other calculations that

• 31:15Speaker 06

  they've got to consider, including the fact that they have to get this merger with Skydance across the finish line. So the company insists that the settlement discussions and the discussions about the merger, which is now being reviewed by the FCC and Brendan Carr, are proceeding along separate tracks. But I have talked to executives, my coworkers have talked to executives that believe the two are essentially linked, that essentially if the the company reaches a settlement with President Trump, somehow that's going to make it easier for their merger to get approved by the FCC.

• 31:48Kara Swisher?

  And the unusual situation is Larry Ellison's. ...here. His son is going to be running it. And there's Larry Ellison money. So there's also that part of it that you can't push too far, I would imagine. David, is there anything else?

• 32:01Speaker 05

  No, I think that's, and Ben summed it up pretty well. And there's, I guess, I would emphasize what he said at the end, which is that these are really unproven envelope pushing legal strategy they're pursuing. This, this argument has never won in court. And yet, it creates huge pressure on news organizations because it's really expensive to defend against litigation, and it can take years. And, and, you know, Trump's side has made no secret of the fact that they view this as a, kind of one of their promising new avenues to attack news organizations with.

• 32:36Speaker 01

  I, I just really want to amplify your point, David, about the cost of this litigation. If you are a large company like Disney or CBS Paramount, you, you can sustain that and you can choose to settle with millions of dollars. But the, the cost of defending against even the most ridiculous and unwarranted, unfounded lawsuit, I'm thinking, for example, of the one against the Des Moines Register and the pollster, Ann Selzer, is huge. You have to get, even to defeat a motion for summary judgment, you're going to be spending hundreds of thousands of dollars, maybe millions of dollars, to defend yourself. People do

• 33:20Speaker 01

  not have the coverage for that and the ability to dig into their pockets like that, most of them. And one of the, in addition to the point, the smart point that David was making about cutting back on the protection for public figures, another thing that can be done to really hurt news organizations is to make it even more difficult to defeat these lawsuits on a motion for summary judgment. Because if you're going to get to trial, that is going to be millions of dollars more.

• 33:48Kara Swisher?

  Yeah. So let's take a step back and talk about freedom of expression for everyone from corporations to foreign exchange students. Co-president Elon Musk is no stranger to lawfare. X has sued Media Matters. They've sued brands, brands and advertising, brand safety initiative, after they boycotted X, which was well within their rights. They threatened to sue the ADL, the Anti-Defamation League. And last week, he threatened unnamed propagandists who are supposedly causing people to hate Tesla. Let's hear a clip.

• 34:13Speaker 07

  It's not like the, you know, the crazy guy that firebombs a Tesla dealership. It's the people pushing the propaganda that caused that guy to do it.

• 34:26Speaker 07

  Those are the real villains here. And we're going to go after them. And the president's made it clear, we're going to go after them. The ones providing the money, the ones pushing the lies and propaganda, we're going after them.

• 34:40Kara Swisher?

  All right, he posted on X that the probability is 100% that Reid Hoffman is funding the organizations attacking him, which may or may not be defamatory. Reid hit back pretty hard, saying, "I'm sorry, Elon, nobody likes you, but this is the case." Which is, I think, accurate. Ben, this is, he also is, I would, to me, I would focus on the crazy guy that firebombs the dealership, in my opinion. But this is coming from someone who is so upset by content moderation that he spent 44 billion to buy Twitter. What are we supposed to make, well, I don't even love asking this because he's such a hypocrite, but this idea of free speech absolutism, suing and threatening to sue anyone whose speech he doesn't like. This is kind of a layup for you, Ben.

• 35:18Speaker 06

  Well, I remember, I think it was 2016, I was in St. Petersburg because I was working at Poynter, covering media, and the trial against Gawker was just underway. And I remember having a drink with an executive at Gawker Media who told me that he thought that there was some big billionaire behind Hulk Hogan's lawsuit against Gawker Media. And at the time, I don't think I believed it because there was no proof. Lo and behold, and David has written about this eloquently in his book, it was Peter Thiel who was financing all this litigation, lawsuit after lawsuit against Gawker Media. And so I do think this is a really serious accusation that if you're a lawyer, if you're an executive at a media company, you should take really seriously.

• 36:02Speaker 06

  Because Elon Musk has bottomless pockets. He could fund lawsuits for years and years. And the thing is, even if the law may be on your side, as we saw with Gawker Media, they couldn't afford to put up the 50 million that they would have needed to keep fighting the lawsuit. So even if the law's on your side, you could be in really big trouble if you're the target of this.

• 36:43Kara Swisher?

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• 37:28Kara Swisher?

  to help get your job the premium status it deserves at indeed.com/podcast. Just go to indeed.com/podcast right now and support our show by saying you heard about Indeed on this podcast. That's indeed.com/podcast. Terms and conditions apply. Need the right hire fast? Then this is the job for Indeed Sponsored Jobs.

• 37:54Speaker 04

  I'm Josh Muccio, host of The Pitch, where startup founders raise millions and listeners can invest. For our sweet season 16, we're giving you more of what you love and less of what you don't.

• 38:05Speaker 02

  I definitely start to blank out when we're talking about like middleware AI wrappers.

• 38:10Speaker 04

  Software is out. Actual cool stuff is in. We've got consumer brands.

• 38:16Speaker 05

  We're building Eight Sleep for daytime.

• 38:18Speaker 04

  Hardware that helps blind people see.

• 38:20Speaker 07

  They kept asking for middle finger. Next thing we knew, we had like 10 students running around flipping each other off.

• 38:26Speaker 04

  We've got deep tech to change the weather. Our big vision is to make it rain and snow on demand. What if you wanted to not? Not make it rain somewhere else. Like, one day, we're just like, screw Arizona.

• 38:39Speaker 04

  And dairy? I never imagined my life journey would be milk. Season 16 of The Pitch is out now. Listen wherever you get your podcasts. This season is presented by Engine.

• 38:52Kara Swisher?

  I'm Kara Swisher, and I like people who say the quiet part out loud. In fact, I love it. That's Tiger Sisters, a new podcast that recently joined the Vox Media Podcast Network. Cherie Brook-Lu and Jean-Lu are real sisters who built their careers at LinkedIn and Goldman Sachs. On their weekly podcast, they're giving the next generation practical tips on how to get ahead, how to write emails people actually answer, how to make your LinkedIn profile stand out, and how to keep learning as an adult. It's straight talk about money, career, and relationships every Monday. Follow Tiger Sisters wherever you get your podcasts.

• 39:28Kara Swisher?

  So, Ruth, one of the things you did write about when you left The Washington Post, we're not going to focus in on The Washington Post right here, but one of the things you did that stood out to me was the Post's former owner, Catherine Graham, who I hold in high regard, knew her pretty well. When she stood up to the Nixon administration, I talked a lot about that. When you look around at today's media owners, many of which are like the Elon Mus, the Bezos, Mark Cuban, do you see any Catherine Grahams or anywhere across the whole, you know, not just tech billionaires, but anywhere? And again, they're not immune either. Mark Zuckerberg settled a spurious lawsuit that Trump brought against Meta. It seemed like almost all of them, including Tim Cook, Sam Altman, Sundar Pichai, have gone out of their way to acquiesce to him.

• 40:11Kara Swisher?

  Do you see any, you know, when you were writing that, I think you were, you and I were both hoping for a different day, kind of thing.

• 40:17Speaker 01

  Well, I think in the parallel universe of law firms, we've seen two paths diverge in the woods. There's sort of a Harry Potter-like sorting hat among the law firms, and some are standing up to the administration, thank goodness, and some are reaching their deals with the administration because they argue that it's an existential crisis for them.

• 40:41Kara Swisher?

  Slytherin. You're calling them Slytherin. Essentially, yeah, okay.

• 40:44Speaker 01

  I am not doing that, but you might.

• 40:46Kara Swisher?

  I just did.

• 40:48Speaker 01

  I think we have seen a number of troubling episodes at news organizations that suggest one path. And I'm not sure anybody comes to mind who is the Catherine Graham of our day. I hope she emerges.

• 41:06Kara Swisher?

  Lorraine Powell Jobs?

• 41:07Speaker 01

  Well, I think, oh, okay, you know, let me say this. I think that Jeffrey Goldberg and The Atlantic have done a marvelous, smart and responsible job of exposing and then standing up to an assault from the administration. So, yes, I'll, I let's give her credit.

• 41:25Kara Swisher?

  Anybody else?

• 41:26Speaker 05

  Yeah, The New York Times has done a really good job, but I'm biased. I work there. I think The Wall Street Journal has done a pretty good job. And I think, obviously, they're owned by Murdoch. And, you know, that has its own series of complications. But they've been doing aggressive and, I think, excellent accountability journalism. And I hope they continue.

• 41:43Speaker 01

  And their editorial page has, at important times and on important issues, stood up to Trump. I don't, and I don't want to take anything away from those news organizations that you mentioned that are standing up to Trump. But I don't think that they are facing, as Catherine Graham did, the kind of existential threat to her newspaper that existed at the time that she was saying, I don't care what you're threatening to do to my body parts. I know this is a family podcast, so I won't say the words.

• 42:14Kara Swisher?

  It's not, it's not. You can say it.

• 42:16Speaker 01

  The Attorney General of the United States threatened to put her tit through a ringer. And Jeff Bezos famously

• 42:25Speaker 01

  got a ringer that is in one of the post conference rooms when he bought the newspaper.

• 42:30Kara Swisher?

  Ah, interesting. Well, we'll see if we can do that with, for him.

• 42:34Speaker 06

  And I will say this, like, I've done, and I know you have too, Cara, done a lot of critical reporting and, in your case, reporting and commentary about The Washington Post. But for all of that, it doesn't seem like the actual newsroom of The Washington Post has been made to do anything it wouldn't have done before, other than it has not been able to cover itself vigorously, which has been something that it actually hasn't been able to do.

• 43:01Kara Swisher?

  Right.

• 43:02Speaker 06

  But besides for that, I think the reporting, the news reporting of The Washington Post has actually held up very well.

• 43:07Speaker 01

  I hundred percent agree with that, just for the record.

• 43:10Kara Swisher?

  I would agree. I would agree, except I just don't think a morale thing is a good thing to do to people that are under difficult circumstances, to make their morale as low as it is. But let me, Ben, is there anyone you can think of, a media owner who stands head and shoulders?

• 43:25Speaker 06

  Um, yeah, I would, I realize I'm biased, but I would say AG Sulzberger, who controls the New York Times, and David McCraw, who's our newsroom lawyer. I've interacted with him on many occasions, and

• 43:38Kara Swisher?

  He's so funny.

• 43:38Speaker 06

  He's so great. He's just, he's a, he's a great guy.

• 43:41Kara Swisher?

  Full disclosure, when Sean Hannity threatened to sue me, he wrote the funniest email back to him that I've ever seen. I just was like, whoa, back off, sir. Like, let's not, let's not poke the bear, or whatever animal that man is. In any case, Ruth mentioned these big lawsuits. You, both Dave and Ruth have written pieces describing how Trump's used executives to retaliate against firms that feel crossed by him. Some firms, as you noted, like Paul Weiss and Scaden have capitulated, others like Perkins Coie are fighting back. Very few big firms are signing on to an amicus brief supporting Perkins's lawsuit against the administration again, probably because they're afraid. Why have these executive orders been so effective at intimidating big law firms, David, and then Ruth?

• 44:22Speaker 06

  I mean, there's a couple of reasons. One is that, just on a very practical level, they, a lot of these firms have huge, very lucrative businesses that require interacting with the government, and they're lobbying for federal contracts for their clients, they're trying to get their clients out of regulatory trouble, and they need to be able to interact on national security level. And so it poses a business risk. Now, the counter argument to that is that judges keep striking down these orders, or at least imposing restraining orders. So I think that the second point is the more important one, which is that these firms are scared, and they are not standing up for the principles that they're, most

• 45:04Speaker 06

  of their lawyers espouse about the rule of law. And they would prefer to strike deals that they view as relatively painless, and get Trump to back down and to stay on his good side. Then basically have their their actions match their lofty rhetoric about the ideals of the legal profession. They're worried that this is going to cost them money and they don't want to lose money.

• 45:27Speaker 01

  They are, the firms are scared, but they are scared for a reason. The reason, and Perkins Coie laid this out in its original emergency lawsuit, asking for this order to put in place to prevent the president's order from taking effect. The reason is that their clients are leaving in droves. Their clients are leaving because if you have a, if your business is getting government contracts and your lawyer can't go to the government to discuss the nature of the contracts, if your business is getting this deal through the government and your lawyer can't go to the government agency that's responsible for reviewing that deal, if if you're, if they have pre-existing meetings that are

• 46:10Speaker 01

  being canceled because they say, oh, you know, we're not allowed to meet with you under the terms of the executive order, it is a rational thing, if not a very attractive thing, for the client to say, sorry, there's a lot of other law firms out there in the world, we're going to get one of them that's not on the blacklist. This is a horrible, dangerous thing, and it's really quite analogous to what we were talking about before with the, if you are sued, even if the suit is ultimately thrown out of court because of Times v. Sullivan, the cost of defending against it can be ruinous. Here, the cost of the executive order, even if it's ultimately overturned, and I can't believe these executive orders will be found constitutional, they're flagrantly unconstitutional, that may not

• 46:53Speaker 01

  matter because your law firm can go out of business in the interim.

• 46:56Kara Swisher?

  So the Trump administration has been also going after DEI in both public and private sector. Ben, you had a scoop when PBS closed its DEI office. You've written about Paramount pulling back. The FCC ordered inquiries investigating DEI at Verizon, Comcast, Disney, and ABC. And after, the aftermath of the George Floyd murder, media companies made a lot of promises on this topic. What are you seeing them now? They push back against the federal government interfering in their corporate HR practices? They're just giving up, correct? They probably didn't like it in the first place. I didn't ever think they did.

• 47:26Speaker 05

  Well, the thing that has stood out to me most

• 47:28Speaker 06

  And this stood out to me when Paramount did this. I mean Paramount is the parent company of BET and MTV, which for decades have been bulwarks of diversity and basically places where you could get diverse programming that you couldn't get elsewhere. And so to see Paramount roll back its DEI practices, to me, that was a pretty serious sign that corporations were, you know, taking these threats from the federal government very seriously.

• 47:59Kara Swisher?

  Yeah.

• 47:59Speaker 06

  And, you know, in certain cases, I think that it's a sign that maybe these values weren't deeply held in the first place by the people that ran the companies, if they're willing to abandon them at the drop of a hat.

• 48:12Kara Swisher?

  Yeah, because Sherry needs her money. Sherry needs her billions. Sherry Redstone, who owns Paramount. But, but, but is there any sign, now, there's some companies that are pressing back, Apple and others, including Disney shareholders. Is that going to matter to them?

• 48:27Speaker 06

  I mean, I, I don't think so. I think probably it comes down to the CEO and the boards, and the Board of Directors, and the Boards of Directors, generally speaking, are, in my experience, pretty well captive to the executive function at the company. And so unless there's some kind of major shareholder activism, unless some kind of activist investor buys a huge chunk of stock, I don't see these companies changing their tune.

• 48:55Kara Swisher?

  Well, in case of Disney, the shareholders have told the board what they want them to do, but they're not listening to them. So the First Amendment is supposed to protect legal residents, including green card holders and international students here on visas, but the Trump administration is trying to deport legal residents who protested or written in support of Palestine, which to me is the most violative thing of all, in my opinion. Ruth, in 2018, you moderated a panel on how First Amendment issues play out on campus. Since then, things have gotten much more complicated, obviously. Do you think this fight over legal residents' speech rights gets confined to colleges and foreign exchange students, or is it a harbinger of a larger attack on freedom of the speech?

• 49:31Speaker 01

  I think, honestly, everything is a harbinger of a larger attack on freedom of speech. It doesn't actually, there's nothing that would- In any way, in the administration's legal theory, which is spoiler alert, wrong as a legal theory, that would confine it to the college campuses. There are complications that on college campuses because they have responsibilities to protect students from hostile environments. But in terms of free speech and free speech rights of people who are in this country legally, they have First Amendment rights, just like actual citizens do. That is a black letter law, but this administration does not care about what black

• 50:16Speaker 01

  letter law is.

• 50:17Kara Swisher?

  And David, your book is called Murder, The Truth. So in this case, that's what's happening here, correct?

• 50:23Speaker 06

  Yeah, I mean, I think the thing about the First Amendment, that I don't know if you guys can see, but I'm wearing a First Amendment T-shirt right now. Because the First Amendment is, the beauty of it, is that it protects everyone regardless of their views. It protects our right to speak our opinion and stand up for what we believe in. And when that right starts getting threatened against students, as Ruth said, there's no particular reason to think that the same arguments won't be used against everyone else. And so I think it's, this is, I kind of feel normally as a journalist, you're supposed to be kind of like neutral and independent. And I try to be open minded about this. But

• 51:04Speaker 06

  I also think it's important as journalists to kind of be, be clear about our biases. And one of my biases as a journalist is that I like believe deeply in freedom of speech, including people's speech when I don't agree with them. And I just think it's important for journalists of all people to be willing to speak up on this because it is, it is so central and crucial to what we do and the values that I think all journalists need to uphold.

• 51:28Kara Swisher?

  So given the stakes, this is my last question, what we're talking about, where the Trump administration and its allies are attacking freedom of expression from multiple angles, as we discussed. How should journalists and reporters communicate the bigger picture without getting lost in a din of whatever the latest outrage is, especially considering we've mentioned huge swaths, the public don't trust the media. Talking about reestablishing trust. I'd like to start with Ben and then Ruth and then David.

• 51:54Speaker 06

  Well, I think David made a very good point that the First Amendment shouldn't be a partisan issue. As David wrote eloquently in his book, the First Amendment protects conservatives just as well as it does liberals. And so I think that's a point we should be trying to hammer home. The other thing is, I think it's helpful to have some historical context. On Friday, I talked to W. Joseph Campbell, who's an amazing media historian at American University, who pointed out that this actually isn't that new of a circumstance. In the late 1700s, John Adams was jailing journalists because of the Alien Sedition Acts. In 1917, the Espionage Acts sent Woodrow Wilson was jailing journalists. And as recently as, I think, the Obama administration, the Justice Department was tracking down leakers in the administration.

• 52:39Speaker 06

  So the media has always been under threat. I think what's different, I talked to Seth Stern, who's a press freedom advocate. He says what's different this time is that Trump is using a political calculation that he can get away with it. And if he succeeds, I don't know that there's any going back, because modern day assumption of what American public will tolerate will be disproven. And so I think, basically, journalists need to stand in the breach and be advocates for the First Amendment, because although this has been an ongoing fight for centuries, this is a particularly dire moment.

• 53:09Kara Swisher?

  So it's, they never liked us, is what you're saying.

• 53:11Speaker 06

  Yes, basically, yes.

• 53:13Kara Swisher?

  They never, ever liked us. Ruth?

• 53:15Speaker 01

  So Marty Baron, the former executive editor of The Post, said at the start of the Trump, first Trump administration, that our job wasn't to go to war, it was to go to work. I think we need to go to work, but we need to have a very specific vision of what that work entails. And I think, to build on what Ben was saying, that work entails putting into context what is happening now, both the ways in which it is resonant of things that have happened in the past, and the ways in which, and I keep on writing this sentence, the same sentence, which is, this is not normal. As an opinion writer, I get to write it in that explicit way, but I think it is possible

• 53:58Speaker 01

  for and incumbent on, straight down the line, objective journalists to say, to distinguish between what is happening now and to convey in appropriate language, when it's correct, this is not normal. And that's what we need to do.

• 54:14Kara Swisher?

  David?

• 54:15Speaker 05

  Yeah, I completely agree with what Ruth just said. And I think there is, our job as straight news journalists is to be open minded and to try and understand things from all perspectives and try to arrive at what the truth is and convey that truth to our readers. It is not to just, to explain both sides as if they're equally, they equally, they stand an equal chance of being right. If we know that one side is telling the truth and the other side is lying, we have an obligation, I think, to clearly convey that to readers. At the same time, I do think there are times when news outlets, large and small, and journalists, prominent and obscure, do go too far and really insert their own views when there's a very good other view that they're not really taking into account.

• 54:57Speaker 05

  And I think it's incumbent upon all of us to be frankly, a little more open about our biases and a little more cognizant of our biases and try to either own those publicly or do a bit of a better job sometimes of really genuinely and in good faith, trying to understand the views and perspectives of people who disagree with us.

• 55:17Kara Swisher?

  So the idea would be truthful, not neutral, which Christiane Amanpour did say.

• 55:21Speaker 05

  Yeah, our job is to convey the truth. And there are times, including right now, where there is one, or there are powerful people up to and including the president, who are routinely not in, not being truthful. And it's, that's just a fact. And, and there's no point in couching that. Trump lies a lot and his allies lie a lot and they use those lies often, not always, but often, to promote their agenda. And it's the job of the media to refute lies and distortions and conspiracy theories. And I don't think there's really a point, I think we need to be very thoughtful about when we're labeling something as a lie versus something that's just wrong. But I, when there is something, when someone is lying, we should feel empowered to call

• 56:02Speaker 05

  that out directly and clearly and not get all mealy mouthed because we want to create a false sense of neutrality and objectivity.

• 56:12Kara Swisher?

  Well, I think we'll end on that note. Thank you guys so much. I really appreciate it.

• 56:16Speaker 05

  Thank you.

• 56:17Speaker 06

  Thanks.

• 56:22Kara Swisher?

  On with Kara Swisher is produced by Kristin Castor-Russell, Kateri Okum, Dave Shaw, Megan Burney, Megan Cunane, and Kalen Lynch. Nishat Kurwa is Vox Media's executive producer of audio. Special thanks to Kate Ferby. Our engineers are Rick Kwan and Fernando Aruda, and our theme music is by Track academics. If you're already following the show, you're Katherine Graham as if. If not, you're an unctuous toady. Go wherever you listen to podcasts, search for On with Kara Swisher and hit follow. Thanks for listening to On with Kara Swisher from New York Magazine, the Vox Media Podcast Network, and us. We'll be back on Monday with more.

• 57:04Speaker 02

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• 57:48Speaker 04

  I'm Josh Mucio, host of The Pitch, where startup founders raise millions and listeners can invest. For our sweet season 16, we're giving you more of what you love and less of what you don't.

• 57:59Speaker 06

  I definitely start to blank out when we're talking about like middleware AI wrappers.

• 58:04Speaker 04

  Software is out. Actual cool stuff is in. We've got consumer brands. We're building Eight Sleep for daytime. Hardware that helps blind people see. They kept asking for middle finger. Next thing we knew, we had like 10 students running around flipping each other off. We've got deep tech to change the weather.

• 58:22Speaker 06

  Our big vision is to make it rain and snow on demand. What if you wanted to not make it rain somewhere else? Like one day, we're just like, screw Arizona.

• 58:33Speaker 04

  And dairy? I never imagined my life journey would be milk. Season 16 of The Pitch is out now. Listen wherever you get your podcasts. This season is presented by Engine.