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PORTSIDE CULTURE

ON TRUMP’S EFFORT TO UNDO FREE SPEECH  
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Lloyd Green
March 16, 2025
The Guardian
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_ This book examines efforts of the network of Trump, government
members, and the ultra-rich, to overturn Times v. Sullivan, the SCOTUS
decision that made it hard for politicians to sue the press for
defamation. _

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_Murder the Truth
Fear, the First Amendment, and a Secret Campaign to Protect the
Powerful_
David Enrich
Mariner Books
ISBN: 9780063372900

David Enrich is a keen observer of the intersection of money, power
and politics.

In his first book, Dark Towers
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the New York Times business investigations editor
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between Donald Trump and Deutsche Bank, Trump’s lender of last
resort. In the process, Enrich drew further attention to the triangle
between Trump, the supreme court justice Anthony Kennedy and his son,
a former Deutsche Bank officer, and Brett Kavanaugh, the former clerk
who replaced Kennedy on the court.

Next, in Servants of the Damned
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Enrich homed in on Jones Day, the Cleveland-based law firm that
represented Trump in his first run for president, and later played an
outsized role in staffing the White House and justice department.

Now Enrich is back with Murder the Truth
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Fear, the First Amendment and a Secret Campaign to Protect the
Powerful. It is a granular and disturbing read.
Enrich focuses on Trump, pliant members of the federal bench, and the
ultra-rich. Together, they seek to overturn New York Times v Sullivan,
the unanimous 1964 supreme court decision that made it difficult for
public figures to successfully sue for defamation. Since Sullivan,
those alleging defamation must demonstrate that a defendant acted with
“actual malice”, meaning deliberately lied or acted with reckless
disregard for the truth.

Trump’s war on the media is no secret. As a first-time candidate, he
used the press as a punching bag. At a meeting with the editorial
board of the Washington Post, he marveled at how Peter Thiel and Hulk
Hogan had joined forces with lawyer Charles Harder to close down
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Gawker. Enrich reports that during that same meeting, Trump refused to
be pinned down on his view of Times v Sullivan.

In August 2016, after the Daily Mail had published a story that said
Melania Trump had “once been a high-end escort”, to quote Enrich,
Melania reached out to Harder. He took the case, and extracted a
settlement
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In an email to Enrich, Harder assumed the referral came from Thiel.
Thiel refused to respond.

Once in office, Trump threatened the author Michael Wolff with a
pre-publication injunction against his blockbuster Fire and Fury. It
didn’t work
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Trump also unsuccessfully sought to strip Jim Acosta of CNN of his
White House pass, and looked to the courts to block a book by John
Bolton, Trump’s third national security adviser. Trump threatened to
jail Bolton too. Bolton stayed free, of course.

But now Trump is back, and the song remains the same. The White House
excluded
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Associated Press, because it refused to reclassify the Gulf of Mexico
as the Gulf of America, according to Trump’s whim. The Federal
Communications Commission is investigating whether CBS operated in the
public interest, because Trump didn’t like an interview with Kamala
Harris. Bolton, reportedly targeted by Iran, has seen his security
detail withdrawn.

 
Enrich devotes pages to Clarence Thomas
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court justice at the hard core of Trump’s 6-3 rightwing majority.
Enrich reminds the reader that during his confirmation hearings in
1991, Thomas said he had “no agenda” to change free speech
protections established by Times v Sullivan.

“We should protect our first amendment freedoms as much as
possible,” Thomas declared.

But a media frenzy over Anita Hill’s allegations of sexual
harassment left Thomas scarred. Enrich notes that Michael Luttig, then
a justice department official detailed to shepherd Thomas on to the
court (now a prominent ex-judge and anti-Trump conservative),
described the nominee “‘crying and hyperventilating’ about how
‘these people have destroyed my life’”.

Now Times v Sullivan is under attack, Thomas is leading the charge. In
a 2019 ruling, McKee v Cosby, the supreme court declined to review
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dismissal of a defamation lawsuit against Bill Cosby, whose state
conviction for sexual assault was overturned on appeal. In a
concurring opinion, Thomas branded Sullivan and its aftermath
“policy-driven decisions masquerading as constitutional law”.

As recounted by Enrich, the late Laurence Silberman, an appeals court
judge and close friend to Thomas, played an outsized role in
Thomas’s life and thinking. In a dissent in Tah v Global Witness
Publishing, a case decided in 2021
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Silberman declared war on Times v Sullivan.

Because the media was overrun with liberals, Silberman said, the
actual malice standard needed to be undone. As he saw it, “the
increased power of the press is so dangerous today because we are very
close to one-party control of these institutions”. Fox News and the
Wall Street Journal seemed to escape his notice.

Whose rights were purportedly being trampled directly correlated to
the degree of Silberman’s indignation. Decades earlier, a divided
panel of the DC circuit held that Congress could not enact legislation
designed to target a single news publisher as revenge for having
heaped ridicule upon the conduct of a particular senator. Silberman
voted with the panel’s majority. Rupert Murdoch was the publisher,
Ted Kennedy the senator.

More recently, Murdoch’s Fox News invoked Times v Sullivan as it
sought to avoid liability in a defamation action brought by Dominion
Voting Systems, a case eventually settled for $787m.

In 1984, Robert Bork, a judicial conservative who would later be
denied a supreme court place, wrote approvingly of Times v Sullivan,
warning that without it, “a freshening stream of libel actions,
which often seem as much designed to punish writers and publications
as to recover damages for real injuries, may threaten the public and
constitutional interest in free, and frequently rough, discussion”.

Time passes – and attacks on Times v Sullivan proliferate. In
February, the casino mogul Steve Wynn, a close Trump ally and former
finance chairman of the Republican National Committee, asked the
supreme court to revisit Times v Sullivan, regarding a defamation suit
against the Associated Press. Among the US media, all eyes are on the
justices once more.

 

Lloyd Green is an attorney in New York and served in the US Department
of Justice from 1990 to 1992

* The First Amendment
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* freedom of the press
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* Donald Trump
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* New York Times v. Sullivan
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