Last week in the New York Times, I read a letter that was sent by vice president and assistant general counsel for The Times, David McCraw, to Donald Trump’s lawyer, Marc E. Kasowitz, in response to a libel suit brought against The Times. This lawsuit came in response to an article that was published regarding two women who had come forward– just two of the many in the past few weeks– with claims of being sexually assaulted by Trump. The article, written by Megan Twohey and Michael Barbaro on October 12, included accounts from Jessica Leeds and Rachel Crooks who had encounters with Trump on a plane in the 1980’s and exiting an elevator in 2005 (article here). I read McCraw’s letter and was automatically a huge fan. My favorite line was, “Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself (McCraw, NY Times). PUH-REACH. (You can read this masterpiece here).
I remember learning about free speech in AP Government my junior year of high school, and especially the pivotal Times vs. Sullivan case in 1964. This case was brought to court due to hundreds of libel cases brought against news organizations by southern states in an attempt to censor reporting on civil rights issues. Thus was born the “malice standard,” which could only be met if the author knew what they were saying was false, but published it anyway in order to defame the subject. In this ruling, the Supreme Court made great strides in protecting the freedom of the press, which has been brought back into the spotlight with Trump’s recent libel claims.
I recently listened to a follow-up interview with David McCraw in which he talked about libel, free press, and how The Times prevents these kinds of lawsuits (before this one, they had not had a libel case in 18 months). He described the collaborative process of The Times, wherein anyone– photographer, writer, etc.– in the newsroom is able to call legal at any time if they feel there is something risky about what they are publishing. David or one of his colleagues will then sit down and have a discussion with them, fixing anything that might make them vulnerable to a suit. In this way, writers still have great freedom of speech and are able to put their message out there rather than being forced to scrap an important project for fear of getting into legal trouble. With the digital age, David said that one of the biggest challenges to free speech is the ability to keep sources confidential. Today, there is an immeasurable and scary amount of electronic surveillance, which makes sources more cautious in what they share due to threats to confidentiality.
It does make me wonder why Trump chose to fight back against this specific article, especially due to the fact that audio of his own voice talking about things much more degrading to his character has already been released. It is very clear at this point that nothing anyone says about Trump can outdo the damage he has already done with his own words and actions throughout his career.