Trump Is on a Winning Streak in War on Press: Is the Sullivan Decision Next?
About 15 years ago, Guy Lawson had lunch in New York with his editors at Rolling Stone. He was tired of covering the drug wars in Mexico, and wanted to know what else they might be interested in.
“We want you to do stories about young people doing fucked-up things,” he was told.
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The conversation led to an article about two stoner arms dealers who became entangled in corruption in Albania, which became a book and then the 2016 movie “War Dogs,” starring Jonah Hill and Miles Teller.
“It was a great story,” Lawson says.
It also got him sued. A year after the movie was released, Shkelzen Berisha, the son of the Albanian prime minister, accused Lawson of defamation.
The suit went to the Supreme Court, which refused to hear it. But two justices, Clarence Thomas and Neil Gorsuch, sided with Berisha and suggested that New York Times v. Sullivan, the bulwark of sharp-elbowed journalism for 60 years, should be overturned.
“It was a very weak case,” Lawson says. “But it seems part of a larger attempt to change the whole notion of what precedent means and what constitutes freedom of expression.”
Until recently, President Trump’s war on the press has been seen as largely performative. His lawsuits could be time-consuming and costly but were doomed to fail, just like his threat to “open up” libel laws.
But since winning the election, he’s been on a hot streak. In December, Trump got a $16 million defamation settlement from ABC. Last week, Meta agreed to pay $25 million for kicking Trump off Facebook. Some also fear that the broader effort — an assault by Trump’s allies on the Sullivan decision — could also prevail.
“It seems he’s making good on these threats against the press,” says Samantha Barbas, author of “Actual Malice,” a history of the Sullivan case. The 1964 decision set a high bar for public officials to prove defamation. Barbas noted several recent challenges to the case: “I have no reason to believe that movement will stop.”
Trust in the media is at an all-time low, according to Gallup. Without the protections of Sullivan, journalists could easily find themselves in front of unsympathetic juries.
At a trial in Panama City, Florida, last month, CNN was ordered to pay $5 million plus undisclosed punitive damages for defaming Zachary Young, a security contractor, in a report about Afghan refugees. His lawyer used the reporters’ internal messages to contend they had set out to “nail” Young, regardless of the facts.
Alex Marquardt, the war correspondent who led the story, defended his profession on the witness stand: “What you’re describing, sir, is reporting.”
The jurors didn’t buy it. Foreperson Katy Svitenko told Variety that Marquardt came off as “very arrogant,” and that it appeared he had a personal vendetta against Young. She said the jury wanted to send a message to all media: “The general public is fed up with fake news and partial truths.”
Jane Kirtley, professor of media ethics and law at the University of Minnesota, says the case serves as a useful reminder: “Don’t put in writing anything you would not want the most hostile jury to read.”
Even holding a bad hand, CNN put up a fight. Before Sullivan, Barbas says the press would often back down in the face of libel threats from politicians.
“Libel lawsuits were used as a part of political warfare in the pre-Sullivan era,” she says. “We’re seeing a resurgence of that.”
George Freeman of the Media Law Resource Center says that while there’s been an uptick in political defamation cases, most are “clear losers.” He also doubts Sullivan will be overturned. “Institutionally, the court has enough other problems,” he says.
Lawson isn’t so sure. He believes the two justices were targeting “responsible journalism,” and senses general fear that Sullivan will go the way of Roe v. Wade.
“There’s an element of thuggery inside these cases,” he says. “I feel the chill in every conversation I have with an editor now. Everyone seems to be aware that this is heading toward some sort of climax. I get the sense that people are trying to trim their sails so they’re not the one that gets picked as the example.”
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