What The Hell America!

David Enrich: I finished this before the election. The final book has been updated to account for Trump having won. I thought there was a 50-50 chance that Trump would win or Harris would win. But it’s been kind of weird to watch just how quickly things have moved since November.

I always write things and think they’re true but, you know, sometimes journalists exaggerate or overhype things. In this case, I feel like, if anything, I’ve undersold it based on just how insane the past two months have been — which is not a great feeling as a journalist, given the stakes here.

Enrich: This goes back to 2022. I manage a small team of investigative reporters at the Times and it seemed like basically every story we were doing was looking into wrongdoing involving a big institution or powerful individual. We were getting besieged by legal threats in the run-up to publication. That’s something I’ve been seeing — and my colleagues have been seeing — going back years, but the intensity and frequency with which it was happening seemed to be increasing dramatically.

At the Times, The Wall Street Journal, and at places like that, those [cease and desist] letters are kind of routine and there’s an infrastructure set up to handle them. In fact, in some cases, it’s actually helpful to get letters like that, because it sets out, at a bare minimum, the facts in an on-the-record way that you can then rely on.

But it got me thinking how letters like that might affect smaller publications or independent journalists. So I set out, just on a reporting whim, to talk to a bunch of smaller and independent publishers and journalists and lawyers who represent them — just asking what they were seeing. I was really taken aback by what I initially encountered. I was inundated with responses and a whole range of alarming anecdotes started pouring in.

Around this time, [Ron] DeSantis was one of the leading candidates for the Republican nomination and was starting to campaign on this issue of opening up libel laws the way that Trump had. It occurred to me that that was a really important story, and one that had not really been told in its full splendor.

I had also interacted with [defamation law firms] Clare Locke and [Harder Stonerock] over the years and heard lots of gossip about the firms and some of the lawyers there. I think lawyers deserve to be scrutinized just as intensively as bankers or celebrities if they’re making a big difference in the world, and Clare Locke certainly was. I was really eager to dive into their inner workings as much as possible and try and figure out what made them tick, especially given the fact that Libby Locke was and is playing such an influential role in reshaping how the conservative-side people think about press freedom issues.

Enrich: It emerged in an ad hoc fashion, but it has, over the years, become increasingly organized, at least in the conservative ecosystem. With people like Libby Locke, Charles Harder, Carson Holloway at the Claremont Institute, [former federal judge] Larry Silberman….I don’t think that they were necessarily calling each other up saying, “Here are the five steps we’re going to take.” But you can see synchronicity [for example] with DeSantis organizing this roundtable in early 2023One of the things that I saw over and over again is that the rhetoric and actions that Trump and his allies take at a national level is being mimicked across the country at a much smaller level. Whether they’re Trump supporters or not, they’re taking cues from the President of the United States.. I ended up FOIA-ing the DeSantis office for the records related to that meeting and it became really clear that Libby Locke was in the room — it might have been virtual — but she was right there organizing this with them. You see groups like the Heritage Foundation and the Federalist Society jumping on board.

The push to overturn Roe was obviously one of the most coordinated assaults on established Supreme Court precedent, probably in history. And this is definitely not like that — but it’s not an accident that these people were getting up over and over again and being given platforms on places like Fox News to make these arguments over and over again.

And it’s been extremely effective. In a very short period of time, this has gone from being something where no sitting Supreme Court justices had spoken on this issue in an opinion in decades — and all of a sudden you have Gorsuch and Thomas, you have Silberman, and then you have a whole flurry of lower court justices above the state and federal level taking up this mantle. It’s really entered the conservative media ecosystem, as an agreed upon point, for the most part, that this decision either needs to be overturned or substantially narrowed.

Enrich: I do. First of all, one of the things that the opponents of Sullivan have used to bolster their argument is the proliferation of mis- and disinformation and conspiracy theories online. That’s primarily, but not entirely, been a function of social media rather than traditional media. I think there’s been a sleight of hand that’s been going on on the conservative side, saying, “Look at all this disinformation that’s occurring online. That’s because there is no disincentive to publishing lies.”

I say that’s a sleight of hand because that really has nothing to do with Sullivan. If anything, that’s a function of Section 230 and the immunity that gives to the social media companies. There’s many cases, with the rise of digital media, of news outlets, including some established ones, being sloppier than they should have been and getting things wrong. The thing that I keep falling back on is that there is an established legal framework for dealing with cases where someone publishes something false and defamatory and they either knew that what they were writing was false or should have known — and that’s Sullivan.

I’ve really struggled to find cases where someone has had their reputation really harmed by something false that’s spreading online or in traditional media, and they do not have the recourse because of Sullivan to get compensated for that.

Enrich: I think there’s a whole alarming range that is getting more alarming by the day. The range is, on the most mild end, having to deal with a hassle, right? Having to go through the process of going through all these lawyer letters, hiring lawyers, paying the lawyers, preserving documents, things like that. It’s a pain in the butt, especially if you are a smaller, independent news outlet. It can be something that consumes an enormous amount of energy and time for places that maybe only have a couple of employees. And that’s the most mild version of it.

If you get sued, even if you win the lawsuit, you are going to be stuck with a huge legal bill even if you have insurance. And as you said, the insurance companies, even after you’ve won a lawsuit, are going to jack up your rates. That can last for years and years and years. It’s this huge ongoing cost that people face.

But one of the things that I thought was especially scary is how the legal and digital threats are bleeding into the physical realm. You’ve got this terrifying case of Lauren Chooljian of NHPR where her house gets attacked. There have been numerous instances in the past couple of years of journalists getting physically assaulted or having their houses attacked in various contexts. I think the rhetoric that Trump and his allies have recently been using is even more incendiary than it’s been in the past. One of the things that I saw over and over again is that the rhetoric and actions that Trump and his allies take at a national level is being mimicked across the country at a much smaller level. Whether they’re Trump supporters or not, they’re taking cues from the President of the United States. I think the rhetoric that’s being used is very, very dangerous.

And you had Richard Grenell the other day calling a Voice of America reporter a traitor for quoting someone who is critical of Trump. Kash Patel is now the FBI director and has repeatedly said that he plans to go after journalists. Trump is almost routinely now calling for vague but draconian consequences against the fake news. I think people are likely to get hurt as a result of this. Legal threats and legal actions are one weapon that can be used to intimidate and silence unfavorable coverage. But I think often and increasingly, those are going to be going hand in hand with much more physical threats, or, at least, the prospect of physical threats.

I know of plenty of journalists and colleagues who have been on the receiving end of vile online harassment campaigns, especially women. The New York Times has a great apparatus for dealing with this kind of stuff, but [even here] it’s really upsetting and distracting. It’s exponentially harder to deal with that at a smaller news organization, or if you’re an independent journalist.

One of the risks here is that a lot of journalists who don’t have the benefit of the backing of a place like The New York Times are — even subconsciously — deterred from writing about some of the people who have exhibited these tendencies in the past, because the downside is really great and the upside is just too scary, whether it’s financially scary or physically scary or some kind of some combination.

Enrich: What I would write about now, in addition to [the settlements at ABC and potentially CBS], is this incredible ratcheting up of the rhetoric that Trump and Musk and a bunch of their allies are using.

It suggests that the Trump administration is going to be pulling out all the stops they can to go after the media. They have a really powerful reason to do that, which is that, as the Times wrote [in February], Trump is relying often on lies and conspiracy theories and distortions to advance his agenda. To the extent the media is doing its part to tell the truth and to push back against those lies and distortions, that’s a real obstacle to him being able to enact his agenda.

I think if I were finishing this book today, that would be a really big part of it. In the first administration, a lot of the “war on the media” was about this “us versus them” fervor — trying to lean into this anti-elite mentality that can very similar to what Nixon did and what presidents from both parties have used to rail against the media in the past.

This time around, it seems much more substantive to me, and that [the Trump administration] views the media as something that is getting in the way of their ability to shape their own agenda and drive narratives that are often false. I think that’s an important difference, and that really raises the stakes here a lot. I certainly did not anticipate the degree to which that would happen so quickly when I was finishing this book.