Brooke Gladstone: A Columbia University graduate student and green card holder was picked up by ICE and threatened with deportation. The president says this is just the beginning.

Micah Loewinger: Trump wrote, "We will find, apprehend, and deport these terrorist sympathizers from our country.

Brooke Gladstone: From WNYC in New York, this is On The Media. I'm Brooke Gladstone.

Micah Loewinger: I'm Micah Loewinger. The case calls to mind a widespread crackdown on free speech. Back in the '40s and '50s.

Corey Robin: The President of Yale said, referring to communists, "There's not going to be any witch hunts at Yale because there aren't going to be any witches at Yale." In other words, you, the government, don't need to come in. We'll take care of it ourselves.

Brooke Gladstone: Plus, when reporters investigate the rich and powerful, intimidation often comes next.

David Enrich: We were on the receiving end of threatening letters from high-priced law firms warning us that if we went down this path, they intended to hold us accountable in court.

Micah Loewinger: It's all coming up after this. This is On The Media. I'm Micah Loewinger.

Brooke Gladstone: I'm Brooke Gladstone. On Thursday, agents from the Department of Homeland Security searched two residences on the Columbia University campus, this, less than a week after a Columbia University graduate was apprehended by ice.

Reporter: Mahmoud Khalil, who helped lead Columbia University Student encampment protest against the war in Gaza, was taken into custody at his university owned apartment late Saturday, according to his attorney. One of the agents said they were executing a State Department order to revoke Khalil's student visa. When the attorney told them he had graduated in December and was in the US as a permanent resident with a green card, they said they were revoking that, too.

Brooke Gladstone: Khalil was separated from his wife, a US Citizen who's eight months pregnant, and promptly transported to a lockup in Louisiana, where he remains as I read this on Friday. According to the online outlet, Zateo, Khalil had sent emails pleading with Colombia for protection just the day before he was detained. President Trump said that his arrest was just the beginning.

President Trump: They're troublemakers, they're agitators. They don't love our country. We ought to get them the hell out. I think that guy, we ought to--

Brooke Gladstone: Thus far, the White House has provided no details as to why he's been detained.

White House Official: Mahmoud Khalil has not been charged or convicted with any crime.

Michelle Martin: A White House official told the Free Press that there's no allegation that he broke any law. Again, I have to ask what specifically constitute terrorist activity that he was supporting?

Brooke Gladstone: On Thursday, NPR's Michelle Martin pressed The Deputy Secretary of the Department of Homeland Security, Troy Edgar, for answers.

Michelle Martin: What exactly do you say he did?

Troy Edgar: Well, like I said, when you apply for a visa, you go through the process to be able to say that you're here on a student visa and does not afford you all the rights of coming in and basically going through this process, agitating and supporting Hamas. At this point the Secretary of State and the State Department maintains the right to revoke the visa. That's what they've done.

Michelle Martin: How did he support Hamas? Exactly what did he do?

Troy Edgar: Well, I think you could see it on TV. This is somebody that we've invited and allowed the student to come into the country. He put himself in the middle of the process of basically pro-Palestinian activity. At this point, like I said, the Secretary of State can review his visa process at any point and revoke it [crosstalk]--

Michelle Martin: Okay, but he's a permanent resident. He's not a visa holder. He's a legal permanent resident. He has the green card. At least he did until it's alleged that it was revoked. Look, if the allegations.

Brooke Gladstone: Secretary of State Marco Rubio has implied that Khalil is affiliated with Hamas, with no evidence to back that claim. It's a claim that Khalil's lawyers deny. Meanwhile, a mere 14 House Democrats have signed a letter to Homeland Security Secretary Kristi Noem asking her to release Khalil. In a statement, Senate Minority Leader Chuck Schumer condemned, "anti-Semitic" actions at Columbia while asking the DHS to clarify the criminal charges against the Columbia graduate. That query alone was enough to set off the president.

President Trump: Schumer is a Palestinian, as far as I'm concerned. You know, he's become a Palestinian. He used to be Jewish. He's not Jewish anymore. He's a Palestinian.

Cecilia Wang: The problem with what the government is trying to do is that regardless of the truth or falsity of what their charges are on the facts, the First Amendment protects Mr. Khalil's right and everyone in the United States.

Brooke Gladstone: Cecilia Wang, National Legal Director of the ACLU.

Cecilia Wang: What the Trump administration is doing is not just attacking him and his family. They're not just attacking immigrants. They are attacking a fundamental American right.

Brooke Gladstone: In the pages of the New York Times and letters to the editors of the Chicago Times, Newsday, the Boston Globe, and on cable news, the case of Mahmoud Khalil has conjured dark memories of the Red scare in the '40s and '50s, when Senator Joe McCarthy, a Wisconsin Republican, launched his campaign to root out communists in the US, but Corey Robin, distinguished professor of political science at Brooklyn College, says that crackdown on free speech went far beyond one senator and one political party.

Corey Robin: The Red Scare had gotten going four years before anybody in the country really had ever heard the name Joseph McCarthy. 1946 is really when the House Committee on American Activities started investigating the communist presence in labor unions. The next year, it was in Hollywood. It was a multidimensional attempt to, first and foremost, get rid of the Communist Party from the United States, but it radiated out much further, suppressing a whole range of not just communist thinking, but left wing thinking and liberal thinking.

One of the instruments that the people who sponsored it used was immigration proceedings, both deportation, also denaturalization of people who had become American citizens. All told, something like 200 to 250 people were actually deported for reasons of expressing and associating with certain political beliefs and political movements.

Brooke Gladstone: The State Department is using a McCarthy-era law as the basis for holding and deporting Kahlil, the McCarran Walter Act of 1952.

Corey Robin: The story about that bill is that for several years before that, a lot of liberal and Jewish groups had been pushing to reform America's immigration system to make it more open. Jewish groups were so identified with these efforts that their opponents on the right called immigrants immigration reform, the Jewish problem. McCarran and Walter were both fairly anti-Semitic. Walter said he wanted to use this bill to expose Jewish influence. It really helped solidify an immigration quota system that had already been established, but it also solidified the use of expansive ideological and political tests for admission and deportation from the United States.

Over the years this act was used to deny visas to Doris Lessing, who won the Nobel Prize, to Iris Murdoch, Graham Greene, just a whole range of figures. I think the parallel is that once again we are seeing the systemic use of the state and all of these instruments to both suppress heterodox belief and push the culture further to the right. The Red Scare involved many, many more individuals than Joseph McCarthy.

Brooke Gladstone: You've said that the American right has had a program for restructuring the American workplace since the '70s, starting with crushing the labor movement. You also say the right has overwhelmingly succeeded in this in the private sector, but hasn't succeeded in the public sector. Is that what we're seeing now with the mass firing of all these federal workers?

Corey Robin: Absolutely. There's been this 50-year program to really turn the American workforce and the private sector into much more docile, obedient workforce. If you read the American right organizations like ALEC, the quiet, but very powerful American Legislative Exchange Council. ALEC has been very concerned about public sector employment. Though you see a declining union presence in the private sector, you have seen an increasing union presence in the public, public sector. Public sector workers have civil service protections.

The right has long wanted to eliminate this last bastion of freedom in the workplace. What has been so shocking is just how successful Trump and Elon Musk have been to get these summary firings and lists of people that they can just dismiss. That word lists always also makes me think of McCarthyism.

Brooke Gladstone: you say you hate metaphors, but, but Musk's Sauron-like access to information and data on every single government worker is terrifying. You can't plan for it. You feel particularly at risk.

Corey Robin: Absolutely. It's really why you have the rule of law. Justice Scalia famously said, it's the law of rules that tell you under what conditions you can be deprived of your life, liberty and property when you don't know on what basis you're going to be, in this case, fired. Or in the case of Mahmoud Khalil, not knowing what was it that he actually did that landed him in a federal detention center in Louisiana?

Any student in the university system, if they are not an American citizen, or if they are a naturalized American citizen, is going to have to ask themselves, can I say this thing that's critical, let's say, of the state of Israel, can I do that or not? That, again, is actually reminiscent of McCarthyism, because its effects are not just the individuals who are the victims of, let's say, a political persecution. It's everybody else who is around them who then draws the conclusion, I better keep my mouth shut. That really does have a very frightening parallel to the McCarthy era.

There was a very famous quote from the President of Yale, Charles Seymour, and he said, referring to Communists, there's not going to be any witch hunts at Yale because there aren't going to be any witches at Yale. In other words, you, the federal government, don't need to come in and take away our funding and investigate us. We'll take care of it ourselves.

Brooke Gladstone: There was fear of funding being pulled back then as well. You've observed the chilling effect of pulling or threatening to pull funding is extreme, as in the Trump White House pulling $400 million in funding from Colombia.

Corey Robin: The scale is really unprecedented, but the range of issues that are targeted under the guise of a certain term, whether it's DEI or what they call antisemitism. As I said earlier, it wasn't just communists who were Targeted in the McCarthy era. It was really a broad set of belief systems because they were associated with communism, for instance, civil rights for Black. The Communist Party was in the forefront of that in the late '40s and the 1950s.

People who were investigated for being communists were asked questions like the following. This was asked of a woman named Dorothy Bailey, who was an employee of the federal government. The question was, did you ever write a letter to the Red Cross about the segregation of blood? What was your personal position about that?

Brooke Gladstone: The blood supply was segregated?

Speaker D: Oh, yes. You don't have a one-drop rule if you're mixing the blood supply of the Red Cross.

Brooke Gladstone: As far as the pulling of federal funding goes, it isn't just universities. It's not just nonprofits and cultural institutions. It's state governments, too. You say that they may ask, do I sacrifice this one person? That's what Colombia is asking itself right now. About Mahmoud Khalil, you say, or do we risk the whole thing?

Corey Robin: Every institution in the United States today has to ask itself, if we do not comply with what the White House is telling us, we can have a major part of our funding pulled. When you have somebody like the governor of Maine who several weeks ago stood right up to Trump over the issue of discriminating against trans people.

President Trump: Is Maine here, the governor of Maine, are you not going to comply with it?

Governor Janet Mills: I'm complying with state and federal laws.

President Trumlt: Well, we are the federal law. Well, you better do it. You better do it because you're not going to get any federal funding at all.

Corey Robin: Within two days, the White House announced that they were pulling a bunch of funding from Maine. Now the University of Maine is also being targeted. Now, if you're the governor of Maine, you have to ask yourself, is this really something I'm going to not risk my own career, forget about that-- that I'm going to risk the health, safety, and welfare of all of my citizens over this one issue. This is the situation that regimes of fear put people in where they force you to choose. Deal-making is a part of democracy, but when it's done like this, and the terms of the deal are whether or not your state is going to get some vital funding for just basic protection. We're in a very different order of things.

Brooke Gladstone: you suggest that the quiet compliance eats at the fabric of everyday society. You see that.

Corey Robin: There was an article in the New York Times saying that a person who runs a research institute at Yale was very quietly let go sometime over the last few days because an artificial Intelligence driven website claimed that she was a supporter of terrorism. I think she's Iranian born. This is the kind of thing that eats at the fabric of the soul. There's nobody speaking up on her behalf right now from this institution.

The leaders of these institutions, the people who work at these institutions, they have to make that calculation. Do we speak up and incur the further wrath of the government, or do we quietly cooperate, keep our heads down, and hopefully we'll come out okay?

The problem, and this is what happened during the McCarthy era, is you start doing that day in, day out, and before you know it, the very reason you were making the sacrifice, namely to protect the institution. you've already betrayed that goal. When we read about people who lived under communist regimes in the 1970s, the 1980s, that's what they were talking about. The daily cooperation with lies. Not lies that Fox News is trumpeting. Not lies that are easy to identify, but a lie of the life.

Brooke Gladstone: A lie of the life. What do you mean?

Corey Robin: If you're at a university, the reason that you work there is not to make a lot of money. It's because you believe in research, in teaching, you believe in knowledge, all of these things. If then you yourself are part of an enterprise where you're firing people and you don't fight it vigorously, you start living a life of lies, of betrayal, and that is, I think, a lie of life.

Micah Loewinger: Coming up, Corey Robin on the role of Hollywood during the Red Scare and how Humphrey Bogart betrayed the ideals of his most famous role.

Brooke Gladstone: This is On the Media.

Micah Loewinger: This is On the Media. I'm Micah Loewinger.

Brooke Gladstone: I'm Brooke Gladstone. Now, the rest of my conversation with Corey Robin, Brooklyn College professor and author of the History of a Political Idea, about the echoes of the Red Scare reverberating now in Washington and beyond. He says that by understanding how it happened then can inform much of what we're seeing now and maybe even offer a different perspective on President Trump's role in the proceedings. Since he first ascended to the presidency in 2017. There's been a view, eloquently expressed by Adam Serwer, that in confronting Trump's policies, we should consider that, "the cruelty is the point. Corey Robin offers a different take.

Corey Robin: Yes, it wasn't just Adam Serwer. This really became a very influential slogan among liberals. The idea is that the people who are doing these terrible things enjoy humiliating, enjoy degrading other people. Now, I would certainly not deny that to some degree describes what Donald Trump is doing.

Brooke Gladstone: Well, just look at Marco Rubio alone.

Corey Robin: Yes, but that's not why the funding is being pulled from all of these universities, why funding is being pulled from every state, why employees all across the federal government are being fired.

Let's take the case of support for Israel. The Trump administration has no interest in being cruel about that issue. They're trying to produce a certain kind of belief system by silencing those who would disagree with them. This was very true during the McCarthy era. McCarthy did seem like a cruel individual, but that's not why the federal government, the state's governments, the whole society sought to eliminate all of these different beliefs about civil rights, democracy and so forth. They wanted to produce a country that was much, much more conservative and didn't subscribe to those beliefs. Cruelty is not the point. The goal is to silence anybody who has a different thought. That's the point.

Brooke Gladstone: Back in the '40s and the '50s, what was being suppressed was anti-fascist ideas, anti-Nazi, pro civil rights, pro-democracy, pro-workers’ rights, pro-free speech. Then there was the film Casablanca.

Humphrey Bogart: Don't you sometimes wonder if it's worth all this? I mean, what you're fighting for? We might as well question why we breathe. If we stop breathing, we'll die. If we stop fighting our enemies, the world will die. What of it? It'll be out of its misery.

You know how you sound, Mr. Blaine? Like a man who's trying to convince himself of something he doesn't believe in his heart.

Corey Robin: It's an iconic film, but it comes out of an effort to make left-wing ideas seem like common sense American ideas. There was a film called Tender Comrade that was written by Dalton Trumbo, who was a member of the Communist Party. In it, Ginger Rogers says, share and share alike, that's democracy.

Ginger Rogers: We could run the joint like a democracy, and if anything comes up, we'll just call a meeting. That'd be wonderful. Oh, we could just do lots of things.

Corey Robin: Casablanca really comes out of that firmament. It was really an effort to make the cause of fighting fascism not just a political cause, but in the form of Humphrey Bogart, a human cause. What is Humphrey Bogart in Casablanca? What is his struggle? It's a guy who was betrayed by a girl who, because of that, has become cynical about everything. Then in the course of finding her again and falling in love with her again, he discovers that he's going to fight fascism. It was a great film.

The reason why it's so important is in the late 1940s, when the House Committee on American Activities went after Hollywood, they hauled up a group of screenwriters, directors, and so forth, who were called the Hollywood 10. All of liberal Hollywood rallied behind the Hollywood 10. They formed something called the Committee on the First Amendment. It includes all your favorite stars: Gene Kelly, Katharine Hepburn, Frank Sinatra, Groucho Marx. It also included Humphrey Bogart.

Brooke Gladstone: And Lauren Bacall.

Corey Robin: Yes, and there's a great photograph of the two of them marching in Washington. I think it was October 26, 1947, for the First Amendment.

Brooke Gladstone: A group of actors even launched a radio show called Hollywood Fights Back.

Humphrey Bogart: This is Humphrey Bogart. We said to ourselves, it can happen here. We saw American citizens denied the right to speak by elected representatives of the people. We saw police take citizens from the stand-like criminals after they'd been refused the right to defend themselves.

Corey Robin: The Hollywood studios get very, very nervous. Bogart makes a turn. In March of the following year, he writes an article called I'm no Communist. It was in Photoplay magazine. He says, "I went to Washington. It was an ill-advised, foolish trip, I'm ready to admit. I was a dope. Maybe somebody like FDR," he says, "could handle those babies in Washington, but they're too smart for guys like me."

On the one hand, it's sort of funny the way he talks about this, but there's a real sadness to me. Humphrey Bogart made this iconic film as somebody who found himself by fighting not just against fascism, but regimes of fear. My daughter knows who Humphrey Bogart is at the age of 16 today because of that film. Then in real life, to engage in a complete reversal. This is what I meant before when I said, this is the lie of life. It's such an utter betrayal of all the reasons why we love Humphrey Bogart.

Brooke Gladstone: With regard to the long-term consequences of this Red Scare, it was a profoundly effective silencing campaign, but McCarthy did get his comeuppance in the Army McCarthy hearings when a lawyer said,

Lawyer: You've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?

Corey Robin: It certainly brought down Joseph McCarthy. It didn't bring down McCarthyism or the Red Scare. He was brought down not just because he went after the Republican Party and the military, but that he had already performed his service to the Republican Party. He was so helpful to winning elections in 1950, 1952, and 1954. Having completed that service, he could be dispensed with, but the ism persisted. Immigration, deportations, continued suppression of heterodoxy in labor unions in Universities continued.

One of the long-term repercussions could even be felt in American foreign policy. One of the targets of the second Red Scare were left-leaning people in the State Department oftentimes called the China hands people who really knew China and East Asia. They were purged from the State Department.

Many people, including David Halberstam in the best and the brightest, claim that in losing those people who were experts on China and on Asia, the country set itself up for what became the Vietnam War that destroyed so many millions of lives in Vietnam and so many lives in the United States as well. That's a particularly dramatic consequence of political repression, of political fear, but in the long term, that's the kind of thing we have to be thinking about, particularly in an age of climate change where we are facing large conflagrations.

When all those scientists and researchers are purged in silence, where will we be with the fire next time, or the flood next time?

Brooke Gladstone: During the first Trump administration, you came on the show and argued against those who were invoking the word fascism. You know, douse your hair doesn't need to be on fire.

Corey Robin: I was afraid you were going to ask me about this. I was skeptical in the first Trump administration that they had the kind of power and the kind of authority that many of their critics feared that they had.

Brooke Gladstone: Which they didn't have in the first administration.

Corey Robin: Right. I was skeptical coming into this second administration that they would be able to wield the kind of power that people feared they would wield. I have since turned out to be wrong. They have set off multiple conflagrations and I have been shaken out of my skepticism.

Brooke Gladstone: You don't think the courts will save us?

Corey Robin: I never thought the courts would save us. In fact, the McCarthy era, I think, is a good example of this. When the courts finally started intervening and striking down a lot of the instruments of the second red scare, it was after the red scare had succeeded. I always feel like the courts come late. We have to save ourselves.

Brooke Gladstone: Corey, thank you so much.

Corey Robin: Thank you.

Brooke Gladstone: Corey Robin is the author of Fear: the History of a Political Idea.

Micah Loewinger: Coming up, a civil rights era Supreme Court ruling that enshrines a vital press freedom is on the chopping block.

Brooke Gladstone: This is On the Media. This is On the Media. I'm Brooke Gladstone.

Micah Loewinger: I'm Micah Loewinger. Next month, Sarah Palin, former Alaska governor and Erstwhile would-be running mate to John McCain, will get another chance to make her case against the New York Times. This started with a Times editorial from 2017 titled America's Lethal Politics.

Speaker 4: The editorial said, "The link to political incitement was clear and that it came after Palin's political action committee circulated a map putting Democrats, including Giffords, under stylized crosshairs."

Micah Loewinger: Now, that version was corrected the next. The Times correction noted that in fact, no such link was established.

Brooke Gladstone: Palin claims the newspaper damaged her reputation. The former editorial page editor for the Times, James Bennett, also testified, saying it was a terrible mistake and he meant no harm.

Micah Loewinger: Three years ago, a jury found the New York Times not liable, but Palin and her team won an appeal on technical issues. In April, they'll get a retrial. Palin isn't the only one feeling litigious. According to journalists across the country, defamation suits are on the rise.

David Enrich: I run a small team of investigative reporters at the New York Times.

Micah Loewinger: David Enrich is the business investigations editor for the New York Times and author of the new book Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful. He started writing the book after he and his team noticed a pattern emerging.

David Enrich: Just about every time we were starting to look into the affairs of someone or something that was rich and powerful, whether that was a wealthy individual or like a big hospital system, for example, we were on the receiving end of threatening letters from high priced law firms that were warning us that if we went down this path and certainly if we got any facts wrong, that they intended to hold us accountable in court.

Micah Loewinger: You essentially discovered that there was a network of lawyers and political groups invested in not just scaring journalists around the country with potential libel lawsuits, but with the intention of undermining the framework that was set by the landmark Supreme Court decision New York Times v. Sullivan in 1964. This was the case that basically helped birth the modern investigative journalism movement.

David Enrich: This case originated with a full-page ad that ran in the New York Times in 1960. The ad was paid for by supporters of Martin Luther King. The text was kind of a description of all of the ways unnamed Southern officials were violating the Constitution as they sought to suppress the Civil Rights Movement. The gist of the ad was completely correct, but some of the details were either wrong or exaggerated.

Micah Loewinger: For example, you write, "It falsely stated that students protesting at an Alabama State college had been padlocked inside a dining hall, "in an attempt to starve them into submission."" Yes, they were being brutalized. No, they hadn't been locked inside of a dining hall specifically in an attempt to starve them.

David Enrich: Exactly. The ad caught the attention of a guy named L.B. Sullivan, who was one of the three city commissioners in Montgomery, Alabama at the time, and he happened to have responsibility for the city's police force, which, as the ad correctly said, was a leading force behind violence and allowing other people, like the Klan, to commit violence at protests and things like that.

He took great umbrage at this ad, but he also took great umbrage at the fact that northern news outlets like the New York Times, but also like the big broadcasters of the day, were covering the Civil Rights Movement. By covering and bringing attention to what was happening in the South, that made it easier for people like Martin Luther King to raise money and build support and kind of help their cause gain momentum.

Sullivan filed a lawsuit against the Times, accused the Times of having defamed him in this ad by basically impugning the Montgomery Police Department.

Micah Loewinger: After Sullivan sued the Times, the paper basically pulled its reporters out of Alabama.

Speaker C: They not only pulled their reporters out of Alabama, the Times lawyers discouraged reporters from writing about institutional racism in places across the South. LB Sullivan's lawsuit went to trial in Alabama in a courtroom overseen by a white supremacist judge and the all-white jury. Some of the jurors showed up in the courthouse dressed up in Confederate costumes, in some cases, totem pistols. You will not be surprised to hear that the jury swiftly concluded that Sullivan had been defamed and the Times should be forced to pay him half a million dollars. It was a lot of money at the time, so this was a really big punishment.

The Times appealed the verdict to the State Supreme Court, which quickly ruled again in Sullivan's favor, upholding the jury's verdict. That left The Times one more chance to appeal, and it was to the US Supreme Court. In 1964, the Supreme Court heard oral arguments, and a few months after that issued a ruling. It was unanimous.

The majority opinion said it is a fundamental right and obligation of Americans to debate and criticize and scrutinize elected officials and other powerful people. In order to do so, people need to have some breathing room so that if they get a fact or two wrong accidentally in the course of debating or writing, they do not face the prospect of being sued into oblivion.

Micah Loewinger: As part of this monumental decision, the Supreme Court outlined what we now call the actual malice standard.

David Enrich: What it means in the legal context is that in order for a public figure to win a defamation lawsuit, they need to prove not only that the underlying facts of the statement at issue were false and that they injured the person's reputation; they also need to prove that whoever spoke those words or wrote those words did so knowing that what they were saying was false or acted with reckless disregard as for the accuracy of what they were saying. This was a high bar. The Supreme Court knew it was a high bar.

Micah Loewinger: As you write in the book, "the Sullivan decision was greeted with widespread and unanimous acclaim. At that time in the 1960s, this decision ushered in a golden age of investigative journalism that brought us stories like Watergate and the Pentagon Papers, but not everyone was crazy about a more emboldened press. In 1969, Richard Nixon's Vice President, Spiro Agnew, gave a speech that's been called the "Magna Carta" of the liberal media critique. He said--

Spiro Agnew: The American people would rightly not tolerate this concentration of power in government. Is it not fair and relevant to question its concentration in the hands of a tiny, enclosed fraternity of privileged men elected by no one and enjoying a monopoly sanctioned and licensed by government?

Micah Loewinger: What was the context for this speech?

Speaker C: A few weeks earlier, Nixon had given what came to be known as the silent majority speech, where he basically spelled out the rationale for trying to wind down the war in Vietnam, but it was really a rationale for continuing to be involved in Vietnam.

The tradition with TV broadcasters at the time, they basically let the President speak to the American people and didn't try to get in the way of that speech, but there was beginning to be a cultural shift, in part because of Sullivan, which had kind of emboldened journalists to call them out when they were lying. In fact, Nixon was often lying.

Instead of just carrying the President's remarks on TV and letting it go at that, after he finished speaking, the networks brought in analysts and critics to push back and in some cases refute what he had said because it wasn't true. Nixon viewed that, I think, understandably, as a real challenge to his powers as president.

Micah Loewinger: Then let's skip ahead to 2016. Candidate Donald Trump on the campaign trail says this.

President Trump: I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.

Micah Loewinger: It's important to note that he, as a president, can't do that, but he's not the only one trying to chip away at that consensus around Sullivan that you were describing. Tell me about Justice Clarence Thomas.

David Enrich: Well, Thomas initially was one of the many conservatives who embraced Sullivan, who endorsed it. In his confirmation hearings in 1991, on the fifth and final day, he was asked about the Sullivan precedent, and he said about Sullivan that, look, it is very unpleasant for those in the public eye to be raked over the coals and to have our lives kind of turned inside out as journalists dig into our professional and personal pasts.

Justice Clarence Thomas: As I was telling my wife during this process, no matter how badly it turned out, as far as the publicity, I think that the freedom of the press is essential to a free society.

David Enrich: He essentially endorsed Sullivan, said he saw no reason to change it. It was not an extraordinary statement in the moment because no one at the time was thinking otherwise, really, about Sullivan.

Micah Loewinger: Now, a couple days after he talked about being raked over the coals by the press, he was met with public allegations from a woman that he used to manage earlier in his career named Anita Hill, who accused him of sexually harassing her. Speaking about the media coverage and questions from congressional Democrats, he famously said this later in his confirmation hearings.

Justice Clarence Thomas: This is a circus. It's a national disgrace. from my standpoint as a Black American, as far as I'm concerned, it is a high-tech Lynchburg for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.

David Enrich: From Thomas perspective, he had just been subjected to absolutely vicious, terrible treatment, not just by Democrats, not just by Anita Hill, but also by the media. He started openly talking about how he doesn't read newspapers and doesn't think anyone else should either. By 2007, he was just really spewing venom toward the media.

Micah Loewinger: then 12 years later, in 2019, we see Justice Thomas first big attack on the Sullivan precedent. It had to do with a case, McKee v. Cosby. The Supreme Court actually dismissed the case and decided not to take it on, but Clarence Thomas used the opportunity to write this remarkable opinion alongside that decision.

David Enrich: Thomas could have left it at that. He agreed with that conclusion, but instead, he took this as an opportunity to declare it was time to overturn Sullivan. He laid out a critique of it from the standpoint of a kind of constitutional originalist.

The thing that's interesting to me is that he often has taken a much more expansive view of the First Amendment when it suits his political interests. Like in campaign finance cases where he rules that billionaires spending unlimited money is a protected form of free speech, but what he was doing was kind of sending an open signal that he wants more of these defamation cases to reach the Supreme Court. That would provide a way for them to reconsider Sullivan.

Micah Loewinger: Yes, and this leads to a kind of interesting subplot concerning a law professor named David Logan. He ended up writing a law review article just about a year after the McKee opinion from Clarence Thomas titled Rescuing Our Democracy by Rethinking New York Times v. Sullivan.

David Enrich: He claimed that because of the high bar created by Sullivan, it had become virtually impossible for anyone to sue the media and win on defamation cases. He had some data that purportedly backed up the claim that it was virtually impossible to win these cases. He said that it had created incentives essentially for journalists to publish things without having done any due diligence to verify the truth.

Micah Loewinger: The logic is basically like, if I do a really crappy job reporting this, then you won't be able to prove that I knew I was wrong when I published it.

David Enrich: Yes, that's a pretty good summation. I mean, he pointed out, rightly, that social media is awash in lies and disinformation, some of which is very damaging to people's reputations, but then he went on to connect that back to his thesis, which was that the difficulty that public figures face and bringing defamation cases against the media is somehow responsible for the garbage that online and anonymous trolls are spreading on social media networks.

There is no attempt at arguing how Sullivan, in its protections for good-faith public speech, was somehow impairing the ability of people to collect damages when someone's lying about them, because it doesn't. Sullivan does not protect you if you are lying or acting with reckless disregard for the truth. Libel lawsuits are not a very good weapon against anonymous online speech, but that's not the fault of Sullivan. That's the fault of the way these social media companies are run and arguably some of the legal protections that they enjoy.

Micah Loewinger: As you report in your book, this bizarre error-filled article from David Logan ended up making an appearance in an opinion written by Supreme Court Justice Neil Gorsuch about a case that the Supreme Court decided not to hear called Borisha v. Lawson. How did this anti-Sullivan argument make its way in there?

David Enrich: Gorsuch's argument was based almost entirely on what David Logan had written and he quoted from it repeatedly. He leaned very heavily on some of the data that had appeared in Logan's article to substantiate the argument that, that it was nearly impossible for public figures and public officials to win defamation cases and to collect damages from the media. In fact, the data underlying that had just been so terribly presented by Logan and badly misunderstood by Gorsuch's clerks that the facts were just wrong.

Micah Loewinger: We have these two Supreme Court Justices, Clarence Thomas, Neil Gorsuch, pretty clearly signaling that they're ready to overturn Times v. Sullivan. There's also an appetite in the Republican Party, of course, as we said by Donald Trump, for making it easier to sue the media. There's also now this kind of cottage legal industry built around coming after the media with defamation lawsuits. Tell me about Libby Locke, a founding partner of the Clare Locke firm, leading this charge.

David Enrich: Libby Locke and her law partner and personal partner, Tom Clare, left the giant corporate law firm of Kirkland and Ellis in 2014 to start their own law firm devoted to suing the media, threatening the media, basically acting as a battle ram to be used against journalists who were writing negative things, primarily about their very wealthy and powerful clients.

They had a rough start. They kept running into the First Amendment protections that make it hard to sue journalists, but they eventually hit pay dirt when they represented a dean at the University of Virginia who had been smeared by a deeply flawed Rolling Stone magazine article. just days before the 2016 presidential election, a jury in Virginia returned a multimillion dollar verdict on behalf of their client. That decision really thrust Clare Locke, and in particular Libby Locke, into a national spotlight.

Micah Loewinger: Let's listen to her on Tucker Carlson's Fox News show in 2019. Talking about the case of Jussie Smollett, who had been accused of filing a false police report claiming that he had been the victim of a hate crime. Tucker asks--

Tucker Carlson: Why the media, which is paid to be skeptical and paid to chase down facts, are the ones demanding that we believe. I mean, why

would reporters fall for this before everyone else?

Micah Loewinger: To which Libby Locke responds--

Libby Locke: That's a great question, Tucker. It's exactly why Justice Thomas was correct in raising yesterday in the Supreme Court, why we need to rethink that. New York Times v. Sullivan's standard, the actual malice standard that was applied in the Warren Court back in the 1960s, which has insulated the media from liability in these cases.

Micah Loewinger: It's pretty clear that her goal is to get Sullivan overturned.

David Enrich: 100%. Her law firm stands to make a lot more money if it becomes easier to win lawsuits against media outlets. I think more than that, though, Libby Locke ideologically believes that the media is out of control and kind of an organ of the Democratic Party and needs to be reined in.

The irony of this, with Tucker Carlson having Libby Locke on his show a bunch of times and Libby Locke, I think each time talks about her desire to overturn Sullivan, Tucker Carlson and Fox News have been and would be again sued for spreading disinformation and lying and the defense that they would use is New York Times versus Sullivan protects us because we weren't lying. We thought we were getting it right, but we just innocently screwed up, and therefore Sullivan protects us.

There's this rich irony of someone like Tucker Carlson inviting someone like Libby Lock on to spread this. This view. Years later, it would be Libby Locke's law firm. That would be one of the firms that sues Fox News and Tucker Carlson for having defamed their client, Dominion Voting Systems by spreading lies about the 2020 election.

Micah Loewinger: I have to ask you, David, you were writing about some of the turmoil at Clarelock, hired by Dominion as this case was unfolding. What was your experience as a reporter writing about a law firm known for sending harassing emails and the like to journalists? I mean, it's like you were literally poking the bear.

David Enrich: Libby Locke and her husband, Tom Clare, sent a series of very upset letters and emails to some combination of me and the New York Times's in-house lawyer David McCraw. They were filled with a mixture of complaints that I was getting certain facts wrong to these unhinged and completely reckless allegations.

Then it kind of veered just into the personal. Libby started calling me a misogynist and a snake.

I really wasn't surprised until one night, I remember I was walking home from the train, and I saw I'd gotten another threatening letter from Claire Locke. I opened it and was kind of reading the PDF on my phone, and I saw that the PDF included screenshots of text messages and signal messages I had had with some of my sources. My heart just stopped. I had no idea how they'd gotten that information.

I later learned they had figured out some of the people I was speaking to and had then sent them threatening letters warning that they were going to sue unless they handed over all of their electronic communications with me, which thankfully didn't amount to much. I mean, it was mostly me organizing meetings and scheduling phone calls and things like that.

Micah Loewinger: That's why you speak to sources over the phone.

David Enrich: Yes, that's a very good point.

Micah Loewinger: You conclude your book with Palin v.New York Times. Do you believe this might be the case that Clarence Thomas and perhaps Neil Gorsuch have been waiting for?

David Enrich: I know that that is what Sarah Palin's lawyers are hoping for. I also know that Justices Thomas and Gorsuch seem to be looking for a vehicle that they can use to attack it, but Palin's case is out there as one candidate, but there are a lot of others to choose from. Earlier this year, the casino mogul Steve Wynn issued an appeal to the Supreme Court on a defamation case of his own in which he was challenging Sullivan. Trump has a case pending in lower courts where he is seeking to overturn Sullivan himself. There are a bunch of others as well.

Micah Loewinger: Which I guess leads me to this question. You've got two potential votes in Gorsuch and Clarence Thomas. Do you think that in the next few years, they're going to be able to convince their peers on the bench that it's time to fundamentally rethink freedom of speech jurisprudence in the United States?

David Enrich: To be honest, I think the more likely scenario is not that Sullivan gets overturned outright. I think a more likely scenario, at least in the short to medium term, is that the court accepts a case for review that's trying to chip away around the edges of Sullivan. Sullivan applied only to public officials, elected leaders, government people, things like that. It was a small handful of subsequent cases that broadened that to public figures like billionaires, or university presidents, or celebrities.

I think it's possible that one avenue of attack against Sullivan that might be more palatable to the court than just overturning it outright would be to narrow the group of people who classify as public figures and therefore have to prove that someone acted with actual malice in order to win.

Micah Loewinger: What do you think chipping away at or overturning altogether New York Times v. Sullivan means for journalism, as we understand it?

David Enrich: It would really make it hard for anyone, whether they're on the right, on the left, somewhere in the middle, whether they work at a large national outlet or a smaller institution. It would make it much harder for them to investigate and criticize or scrutinize people who hold power in whatever community they exist in.

Micah Loewinger: David Enrich is the author of the new book Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful. David, thank you very much.

Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful: Thank you for having me.

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Micah Loewinger: That's it for this week's show. On the Media is produced by Molly Rosen, Rebecca Clark Callender, and Candace Wong.

Brooke Gladstone: Our technical director is Jennifer Munson. We had engineering help from Jared Paul and Amber Bruce. Eloise Blondiau is our senior producer, and our executive producer is Katya Rogers. On the Media is a production of WNYC Studios. I'm Brooke Gladstone.

Micah Loewinger: I'm Micah Loewinger.

 

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