So Sue Me

 

DAVID FOLKENFLIK On this week's On the Media.

 

NEWS REPORT If I tweet something very slanderous about you. You can sue me, but you can't sue Twitter. But what if my tweet is so hilarious and gets so many likes that their algorithm puts it at the top of everyone's feed and shows it to everyone? Then could you sue Twitter?

 

DAVID FOLKENFLIK The Supreme Court has agreed to hear two cases that could change the Internet as we know it by dismantling a law known as Section 230.

 

DAPHNE KELLER In a world without 230, we would see people who believe they've been defamed by a MeToo post bringing lawsuits.

 

DAVID FOLKENFLIK Plus, New York Times reporter Maggie Haberman had unmatched access to the Trump White House. She became a lightning rod for critics.

 

MAGGIE HABERMAN People use this word access as if it implies some kind of a transaction. You know, we talk to people. That's what journalists do. You're talking to me right now, and I'm sure there will be people who will criticize you for it.

 

DAVID FOLKENFLIK Plus, how big law became big business. All after this.

 

[END OF BILLBOARD]

 

DAVID FOLKENFLIK From WNYC in New York, this is On the Media. I'm NPR media correspondent David Folkenflik, sitting in for Brooke Gladstone. This week, we learned that two cases are heading to Supreme Court that have the potential to upend the way the Internet works.

 

[CLIP]

 

NEWS REPORT It starts with 23 year old Noemi Gonzalez. She was one of 130 people who was killed in Paris during an ISIS terrorist attack way back in 2015. [END CLIP]

 

DAVID FOLKENFLIK The first is Google v Gonzalez.

 

[CLIP]

 

NEWS REPORT Her family is arguing in court that YouTube helped to spread ISIS's violent message because its algorithms suggested extreme content to users based on the previous videos that they had watched. [END CLIP]

 

DAVID FOLKENFLIK The other one is Twitter v Taamneh, which claims that platforms are aiding and abetting acts of terrorism by spreading ISIS content online.

 

[CLIP]

 

NEWS REPORT And it's a big test of an old law Section 230. [END CLIP]

 

DAVID FOLKENFLIK That's the name of the quarter-century-old law that shields tech companies from liability for any content posted on their platforms.

 

[CLIP]

 

NEWS REPORT In a nutshell, it says, If I tweet something very slanderous about you, you can sue me, but you can't sue Twitter. This case that the Supreme Court just granted says, okay, but what if my tweet is so hilarious and gets so many likes that their algorithm puts it at the top of everyone's feed and shows it to everyone? Then could you sue Twitter for amplifying my slanderous tweet? [END CLIP]

 

DAVID FOLKENFLIK Section to 30 tweets platforms as publishers. And so it offers the kinds of protections that publishers get. But it's had criticism lobbed at it from the left and the right.

 

[CLIP MONTAGE]

 

NEWS REPORT Section 230 is really one of the cornerstones of free speech online.

 

NEWS REPORT Critics of yours will say this is just a bunch of legal acrobatics that protect pimps and protect traffickers while kids are being raped.

 

NEWS REPORT Don't allow individuals to fund rhetoric and content in our country that's being used to incite our people to violence. [END CLIP]

 

DAPHNE KELLER In a world without 230. We would see people who believe they've been defamed by a MeToo post, for example, bringing lawsuits saying, hey, take this down because it is defamation and I believe you are liable for it.

 

DAVID FOLKENFLIK Daphne Keller directs the Program on Platform Regulation at Stanford Cyber Policy Center. She says that it's been known for some time that Justice Clarence Thomas has been wanting to challenge 230 and has been practically begging for someone to make the case.

 

DAPHNE KELLER And the plaintiffs in these cases, I think, very cleverly framed their petitions to the Supreme Court to say, hey, Justice Thomas, this is the case you wanted, but I don't think it is the case he wanted. I think these two cases just have complicated wrinkles that make it much harder to resolve than a classic 230 case.

 

DAVID FOLKENFLIK Why is this concept of legal liability? Why is this immunity so vital for them?

 

DAPHNE KELLER Because they are processing such a vast amount of speech. I think the latest stats are hundreds of hours of video uploaded to YouTube every minute and their capacity to review it all and figure out if it's legal is nil. All of them are trying very hard to enforce policies that they have themselves against things like violent extremism. And we can see that they don't do a great job. And that's because it's hard. If we want to have a world where there are platforms where ordinary people can go and share their baby videos or their funny cat pictures or their political opinions immediately, you know, without some lawyer reviewing it first, then we do need the platforms to have some form of immunity.

 

DAVID FOLKENFLIK On the left, it seems like there's a lot of confusion. I feel like there are contradictory arguments that big tech has too much influence, too much power, but also a lot of pressure from the left. They should be throwing Alex Jones off and similar arguments about Donald Trump, which of course, got him bounced from Twitter and a couple of other places. Are there any signs of a coherent platform on the left on what reforms could look like or where things should land?

 

DAPHNE KELLER I don't think there is a coherent proposal that spans the left politically, and I think one of the biggest tensions is sort of between responding, using the tools of competition and saying these platforms are too big, they have too much concentrated power, we want to reduce that power, on the one hand, and on the other hand saying, oh, they have all this power and we want them to use it to get rid of illegal speech or to get rid of vaccine disinformation. And you can't have both.

 

DAVID FOLKENFLIK How does the right think about these major social media platforms?

 

DAPHNE KELLER The reversal of positions on the right here has been head spinning because if you rewind a few decades and look at their positions about broadcast companies or cable companies, the Republican position was always that these are private property owners, they can decide what speech they want to carry. The government shouldn't come along and tell them what to do. And indeed, if the government is coming along and telling them what to do, there's a real risk that that will introduce political bias into what we see on broadcast or on cable. So it was part of the GOP's official party position for decades to oppose the Fairness Doctrine, which was a doctrine about making broadcasters carry certain speech. And now Republicans are constantly calling for a Fairness Doctrine for the Internet. Now that there are big private companies with tremendous influence on speech run by people they perceive as too liberal. They are very interested in taking away that power and in saying this private property needs to be shared with the public and the government can tell you what to do with it.

 

DAVID FOLKENFLIK There's another related case that you say is likely to come before the court sometime soon. Last month, the Fifth Circuit upheld a law passed in Texas which claims to be making platforms act as common carriers. It says if platforms moderate content, they can't treat speech differently based on its viewpoint.

 

DAPHNE KELLER I take that to mean and I think most people take that to mean you have to give identical treatment to content that says the Holocaust did happen and content that says the Holocaust did not happen. The sort of logical version of what common carriage would mean for platforms is carry all the speech unless it is actually illegal. Which again leaves you with the beheading videos and the pro-suicide content and all the other sort of terrible, lawful-but-awful material that's on the Internet.

 

DAVID FOLKENFLIK Lawful but awful. That should be translated into Latin and be used as the motto for our times.

 

DAPHNE KELLER I don't think the Texas lawmakers understood what floodgates they were opening. I think they were imagining that some speech that offends liberals would be kept online, and that made them happy. And I don't think they were imagining that their grandmothers would be encountering barely legal porn on Facebook or that their children would be encountering pro-anorexia videos on Tik Tok. There is some denial about just how extreme the consequences of a common carriage obligation would be.

 

DAVID FOLKENFLIK You're saying, look, if it's not totally broken, don't make major changes. Maybe you find ways to get tech companies to take different steps.

 

DAPHNE KELLER I think that's right. It's not that CDA 230 is a perfect law. I can imagine improvements to it, and we have a really interesting model in the European Union. They just finished a big piece of legislation called the Digital Services Act that does offer a different model for how to go about this through sort of very careful, specific takedown obligations and opportunities for the affected user to appeal. Transparency, so you can tell if there's disparate impact and what platforms are taking down. You know, there are other models out there. That's not what Congress has been proposing. The proposals to amend CDA 230 that we see in Congress tend to be very ham-fisted and really not to have thought through the likely consequences of the rules that they're creating.

 

DAVID FOLKENFLIK There's also a bill making its way through Congress called the Journalism Competition and Preservation Act. I don't think it's very likely to pass anytime soon, but it seems like another attempt to acknowledge and regulate the role of big tech in forcing it to kick money to news outlets that they get content from. Tech journalist Charlie Warzel speculated in his newsletter last week that we're looking at the beginning of the end of the Internet as we've known it. Is that right? Is the Internet on the brink of fundamental change?

 

DAPHNE KELLER It might be. We are seeing more Balkanization than we ever have before. Meaning that different countries are imposing different laws and sometimes erecting barriers so that you can't see content from another country. We are seeing moves toward much tighter regulation in the EU. This new law they've passed will set up regulators that get annual risk assessments and risk mitigation plans from the biggest platforms. And then the regulators can come back and tell them how to mitigate risk better. We are absolutely seeing a change in how the biggest platforms will be regulated. I hope that leaves the smaller creatures in the undergrowth still relatively free. You know that there will be smaller websites and smaller places people can go to exchange information that aren't coming under such a tight regulatory grip in ways that vary from country to country. You know, for better or for worse. But I don't know. It's very hard to know what the future of the Internet looks like.

 

DAVID FOLKENFLIK Daphne Keller, thanks so much for joining On the Media.

 

DAPHNE KELLER Thanks for having me.

 

DAVID FOLKENFLIK Daphne Keller directs the Program on Platform Regulation at Stanford's Cyber Policy Center. Coming up, the Murdochs go to court. This is On the Media.

 

[BREAK]

 

DAVID FOLKENFLIK This is On the Media, I'm David Folkenflik, sitting in this week for Brooke Gladstone. Fox News is in the fight of its legal life right now, born out of a moment of crisis.

 

[CLIP]

 

NEWS REPORT Dominion Voting is now suing Fox for defamation over the cable channel's, which they describe as, bogus allegations of voter fraud in the 2020 election. [END CLIP]

 

DAVID FOLKENFLIK Dominion wants $1.6 billion in damages for false claims that it helped rig the 2020 elections for President Biden. Those claims appeared frequently on Fox News out of the mouths of some of the channel's biggest stars like Jeanine Pirro.

 

[CLIP]

 

JEANINE PIRRO Dominion. It started in Venezuela with Cuban money and started with the assistance of…[END CLIP]

 

DAVID FOLKENFLIK Maria Bartiromo.

 

[CLIP]

 

MARIA BARTIROMO They have businesses in Venezuela, Caracas, they have businesses in Cuba. And there are also links to China. [END CLIP]

 

DAVID FOLKENFLIK And the now former FOX host Lou Dobbs.

 

[CLIP]

 

LOU DOBBS This election, a lot of strange things happened there and many of them highly suspicious. For example, Dominion software. [END CLIP]

 

DAVID FOLKENFLIK All untrue. And Dominion says it's been defamed. Its staffers have received death threats and it's badly affected business prospects. Fox News, unsurprisingly, disagrees.

 

[CLIP]

 

NEWS REPORT We just got a statement from Fox saying that Fox News Media is proud of our 2020 election coverage, which stands in the highest tradition of American journalism and will vigorously defend against this baseless lawsuit in court. [END CLIP]

 

DAVID FOLKENFLIK During the trial, much has been revealed about how things operated behind the scenes. At Fox, for example, executives tried to stop Maria Bartiromo and Lou Dobbs from booking Trump attorney Sidney Powell and Rudy Giuliani on their shows because they were pushing election lies. And just this week, Dominion's attorneys revealed that Fox News CEO Suzanne Scott warned colleagues that, quote, We can't give the crazies an inch. Even so, Fox subsequently broadcast a lot of incendiary claims. Dominion's legal team draws a direct line from the heated rhetoric of Fox hosts to the January 6th, 2021 protests that became a violent siege of the U.S. Capitol. And that forms the basis of an entirely different defamation suit filed roughly 10,000 miles away on the other side of the planet, not against the Murdochs, but by a Murdoch.

 

[CLIP]

 

NEWS REPORT Media boss, Lachlan Murdoch has launched defamation proceedings against the publishers of news website Crikey….

 

NEWS REPORT Murdoch's lawyers claim Crikey wrongly suggested the Fox News boss was involved in the plot with Donald Trump to overturn the 2020 election result. [END CLIP]

 

DAVID FOLKENFLIK Lachlan Cartwright is the editor at large of The Daily Beast, where he covers power, crime, celebrity and justice. And he says that with these two suits, we're getting a peek into the future of the Fox empire.

 

LACHLAN CARTWRIGHT Crikey, which is sort of a scrappy Australian independent news and politics and opinion website, published an article on June 29th. In that piece, the writer Bernard Keane labeled the Murdochs as the unindicted co conspirators of the deadly US Capitol riots. And that really triggered Lachlan Murdoch. He sent a number of legal letters via his solicitor in Australia. The article was actually pulled down from the website and they were discussing an apology and Crikey then decided to put the article back up and basically challenged Lachlan to sue them. They took out an advertisement in the New York Times and in the Canberra Times, a newspaper in Australia. And the next day Lachlan filed quite an extraordinary suit. You know, he's incredibly thin-skinned. His father would never bring a matter like this.

 

DAVID FOLKENFLIK For many Americans, this will be the first time they're hearing the word Crikey. You're an Aussie. What does the word crikey mean?

 

LACHLAN CARTWRIGHT I mean, you think of Steve Irwin, and you think of sort of the surprise of saying the word crikey.

 

[CLIP]

 

STEVE IRWIN Oof, Oh, crikey. [END CLIP]

 

LACHLAN CARTWRIGHT Yeah. It's a very Aussie lingo. And the site itself was born out of a bloke by the name of Stephen Mayne, who always had the Murdochs in his crosshairs.

 

DAVID FOLKENFLIK Well, but he was a Murdoch guy, right? Like he had been an editor and then became a burr under the saddle.

 

LACHLAN CARTWRIGHT He turned, and he really did pioneer this kind of, you know, scrappy, independent journalism in Australia, bearing in mind that most of the Aussie media market is controlled by the Murdochs.

 

DAVID FOLKENFLIK Like something like 70% of major newspapers, right?

 

LACHLAN CARTWRIGHT Correct. So around there, 70%, you know. There's only really two newspaper cities which are Sydney and Melbourne. Every other city only has one newspaper and is controlled by the Murdochs.

 

DAVID FOLKENFLIK Aside from the insight this provides into the Murdochs, the differences between generations, this case also is one of the first major tests of some new laws involving libel in Australia. Libel laws there, unlike in the U.S., tend to favor the plaintiff, and that is the people who are suing media outlets. Back in August, Crikey's editor-in-chief Peter Fray told me that he wants to use this as a test case. What does he mean by that?

 

LACHLAN CARTWRIGHT The laws changed last July, and it introduced a public interest offense. So publications can now make the case that all articles that are being called into question were in the public interest. And this is a major part of Crikey's defense — that it was in the public interest to have this discussion about Fox and the Murdoch's involvement in the events of January 6. Now, you've got to remember this public interest defense really was brought in to help protect investigative journalism. This article was an opinion piece. So Murdoch will have a bit more of a leg to stand on. But he also needs to prove that there was serious harm. I think the other thing to bear in mind is that not many people had seen this article until the lawsuit. So there's an element of the Streisand effect here as well.

 

DAVID FOLKENFLIK Well, I mean, Crikey, put the story back up right? And started drawing a lot more attention to it and then surrounded it with a series of sort of public-minded commentary to draw more attention to it, very much wanting the public to read.

 

LACHLAN CARTWRIGHT Also, to drum up subscriptions to their publication. I've heard that they've added about 5,000 subs to the publication since this lawsuit.

 

DAVID FOLKENFLIK Folks working for Lachlan in both Australia and the U.S. have said to me, enough is enough. You know, like these guys go after him and, you know, just beat up on him like a punching bag. There's no reason for him to sit by. He's certainly not looking to profit from it. I believe in previous cases where there was some money paid by Crikey for harm under the even more restrictive libel and defamation laws at the time that, you know, he gave it to charity, he's not looking to get wealthy from it. They took down some stories and he's happy with that as an outcome. But in this case, if they're going to be showing such bravado around it, you know, forget it. Like, is he supposed to just take it? What do you say to that?

 

LACHLAN CARTWRIGHT This isn't an oil magnate or a pharmaceutical billionaire. This is someone who owns and operates a media organization, actually a vast international media organization, and is about to inherit it when his father passes to the big newsroom in the sky, it appears. But I think one of the triggering things for him is the fact that this is all playing out as he is in the country. He moved the family back because of his children and some blowback that they were getting about what had been broadcast on Fox. And so I think that's an important factor here — that he doesn't want to keep hearing this stuff and it being written about.

 

DAVID FOLKENFLIK Here in the U.S. there are cases going on. One is starting to really proceed in Delaware of defamation against Fox involving Dominion Voting Systems. I mean, one of the most mind bending elements is that lawyers and spokespeople for Fox are even now invoking freedom of speech principles.

 

LACHLAN CARTWRIGHT Well, I think it's quite ironic, isn't it? That you have these matters playing out pretty much the same time. You know, Lachlan will potentially take the stand and if he does, some of those matters may be raised. This is why, in this instance, he may win the battle but lose the war because matters that are going to affect the Dominion trial may come out in the Aussie trial.

 

DAVID FOLKENFLIK What have you learned from people familiar with Lachlan's thinking about what he sees as Crikey's preoccupation with him and his family?

 

LACHLAN CARTWRIGHT He's always had issues with Crikey. I think there's been a number of apologies over the years and a correction. He feels that Crikey is a bad actor, I think in much the way that Peter Till felt that Gawker was a bad actor, and he feels that Crikey is a bully and that the publication unfairly targets him and his family. And I think this has been building for some time.

 

DAVID FOLKENFLIK Peter Thiel of course, major Silicon Valley investor, ensured that, as it turned out, that Gawker was sued out of existence. Do you think that he'd be happy to see Crikey meet a similar fate?

 

LACHLAN CARTWRIGHT I think that an outcome here where Crikey never wrote about Lachlan Murdoch ever again would be a good outcome for him. I know that he's in touch with other prominent Australians who have had issues with Crikey in the past, similar to how Peter Thiel was in touch with other prominent people in Silicon Valley who had issues with Gawker. So I think that, you know, if he was to take Crikey out, that would be a good outcome for him. But I think the Australian ecosystem, the Australian media landscape would be all the poorer for that. And then adding another layer of irony here is the fact that this could actually raise the bar for defendants and improve the prospects for plaintiffs. And who is the major media organization in Australia that could be sued? Well, it's News Corp.. It's the Murdoch newspapers.

 

DAVID FOLKENFLIK Lachlan, thanks so much.

 

LACHLAN CARTWRIGHT Cheers, mate.

 

DAVID FOLKENFLIK Lachlan Cartwright is the editor-at-large of The Daily Beast and a regular contributor to the publication's media newsletter Confider.

 

In the world of Trump reporting, there's one figure who looms largest. The scoopiest journalist on the beat.

 

[CLIP MONTAGE]

 

NEWS REPORT She's been dubbed the Trump whisperer for her access to the former president.

 

NEWS REPORT New York Times, Trump Whisperer reporter Maggie Haberman reported earlier this week that Trump.

 

NEWS REPORT Lashes out about this leak from my very talented competitors Peter Baker and Maggie Haberman.

 

NEWS REPORT The idea that Trump was as loyal to Cohen as Cohen was to Trump was always a fairy tale. Maggie Haberman reported that out and – [END CLIP]

 

DAVID FOLKENFLIK In 2016 alone, Maggie Haberman published 599 stories, some solo, some with her colleagues at The New York Times. That's not a misprint, and it is bananas. It's more than two stories per weekday. Concurrently, Haberman became what she's described as a character in Trump's movie. He publicly denounces her and has privately threatened he'll have her phone records seized to expose her sources. He praises her, too. Trump gave Haberman an interview for her new book about him without her even requesting it. When they met, he told Haberman that she's like his psychiatrist.

 

MAGGIE HABERMAN It was something that he has said about all number of people. He's just trying to flatter.

 

DAVID FOLKENFLIK Maggie Haberman is a senior political correspondent for The New York Times and author of the book Confidence Man: The Making of Donald Trump and the Breaking of America. I wanted to talk to her about her journalism for the book and for the Times, and why she inspires such strong reaction in journalistic circles and among readers. Welcome to On the Media, Maggie.

 

MAGGIE HABERMAN David, thanks for having me.

 

DAVID FOLKENFLIK You reported, obviously, for The New York Times for some time now, before that Politico. Before that, you really grew up a bit in The New York Post and The Daily News, New York City's tabloids. What did you understand about this creature of New York that someone coming from the Financial Times might not have?

 

MAGGIE HABERMAN I wrote a story at the time when I was at Politico, when Trump was doing his sort of pseudo campaign that year. John Avlon, who is now at CNN and is a former Giuliani speechwriter — he gave me a quote for that story where he talked about how Trump was trying to export New York City tabloid rules onto the national media, and it just wasn't working. But Trump figured out how to make it work by 2015.

 

DAVID FOLKENFLIK Tabloid rules, meaning that basically it doesn't matter whether what you do is good or bad, but you define the news.

 

MAGGIE HABERMAN Yes. And you play news outlets off one another. Now, he did not have success doing that in 2011, but he absolutely did in 2015. One of the things that he was successful at was ultimately getting Sunday news shows to let him call in instead of appearing for an interview, which to me was always one of the most striking changes.

 

DAVID FOLKENFLIK In your book. When you're writing about Trump in the eighties, you point to Wayne Barrett at the Village Voice. You point to his biographer, Tim O'Brien, for their reporting on his corrupt business practices and bogus claims about his net worth. Yet you also write about a wealth of coverage during these years in which Trump was rarely fact checked. What did this bad coverage look like and what were its consequences?

 

MAGGIE HABERMAN I do think that there is a significant criticism of the media relating to the seventies, eighties, nineties, when Trump was myth making about himself. He was facing tremendous financial headwinds in 1990. It was becoming clear that Trump just wasn't what he said he was and that his father was supporting him in ways that just wasn't clear and visible. You know, and Trump loved this idea that he was a self-made man. Previously, in the 1980s, he would make all kinds of claims about his wealth or about the state of his business. And it just got printed. That was citywide. You know, I mean, I think there's been a lot of focus on his relationship with The New York Post. But then I referenced New York Times stories in there, too. There was a host of coverage where people I've spoken to for the book in the last year have said to me, yes, we realized he lied a lot. Or, you know, yeah, we weren't sure that was true. And yet it just kept getting published. At the New York Post, he was often just somebody who called because he would make a good quote when you've put it in a story — various reporters would. That adds up and that has a cumulative effect. And so I think that's where there's a really significant focus for criticism.

 

DAVID FOLKENFLIK How often are you in touch with Trump as you cover him? And how has your, you could say, relationship, your interactions with him changed over the years?

 

MAGGIE HABERMAN He's a subject who I cover. You know, in the same way that I covered Hillary Clinton or Mike Bloomberg or Rudy Giuliani and, from a further remove, the Clinton and Obama and Bush presidencies when they were in office. When he was in the White House, we at the Times interviewed him a lot. He is uniquely focused on The New York Times, and I'm just the person who has covered him more often. The last time I spoke to him was my September 21 interview for the book.

 

DAVID FOLKENFLIK What is the value of interviewing somebody you know that at any given moment may be lying to you, even if he's the subject of your book?

 

MAGGIE HABERMAN I would say at this point, the value is, you know, he's a former president and potential future Republican nominee. So I don't think ignoring him makes a lot of sense. I do think contextualizing him does. And when he was president, the press is not going to ignore a sitting president.

 

DAVID FOLKENFLIK So regardless of what he says, he's going to be interesting and newsworthy. What do you do with that?

 

MAGGIE HABERMAN It's important to fact check when you know what the answer is. And I don't mean sitting in the interview. I'm much more interested in his words than I am hearing my own voice. But I do think it's important when we are reproducing it to contextualize it and make clear whether it's true or it's not true. I mean, I think that one of the things that happened a lot in 2015 and 2016, and this I do think is a valid criticism of the media, is there was just too much, you know, "Trump said" as coverage as opposed to explaining whether it actually even had any news value, whether it was true. But I think that's the way to approach it. Look, I would say one other thing, David, just in terms of the value, you know, I went into these interviews to get information, even knowing that sometimes the information was of questionable quality. But there are things that only he can answer.

 

DAVID FOLKENFLIK You mentioned that you felt that particularly 2015, 2016, that the press hadn't quite gotten around the fact that he was a human distraction machine. Upon reflection, do you think that some of that criticism fits for The New York Times as well?

 

MAGGIE HABERMAN I think it fits for everybody. We're not immune to criticism and we're not immune to what everyone fell into. But I do think that the paper has tried very hard to cover him rigorously and aggressively. And I think the paper has done some pretty groundbreaking reporting on him, not the least of which was getting ahold of his tax returns, which was my incredible colleagues. I think in general, I think the media has had to grapple with how you cover someone whose goal is attention at all times. And I think we are part of that.

 

DAVID FOLKENFLIK The Times seems to me it in some ways plays an outside and an inside game. The inside game people sometimes call “access journalism.” This critique is one that goes back at least to Bob Woodward and probably decades earlier. What do you make of that term and how well do you think it applies to the work that you do?

 

MAGGIE HABERMAN I don't think it means what critics think it means. I would cover Donald Trump if these people were talking to me or not. I think that people use this word “access'' as if it implies some kind of a transaction. You know, we talk to people. That's what journalists do. You're talking to me right now, and I'm sure there will be people who will criticize you for it. But this is what we do. And so I think it represents sort of a fundamental misunderstanding about the way reporting works. The Times and The Washington Post and all of these outlets will cover officials regardless of whether they like it or not.

 

DAVID FOLKENFLIK Sure. But one of the reasons why White House reporters want a White House pass, one of the reasons they push for interviews is that they want access to the main person in the Oval Office and the main people around that person. So it's not inconceivable that if a major news outlet, major reporters are shut out from that, that's an issue that can affect your ability to drill down, right?

 

MAGGIE HABERMAN I think that's a different question. You're asking whether it is harder to cover people when you don't have the direct ability to engage. And I think that's certainly true because I think especially with the case of the White House, you're talking about the presidency. And, you know, presidents have an obligation to communicate with the people in the country that they're serving. But access journalism implies, as I said, some kind of a transaction. And I don't think you think that's what — do you think White House reporters are saying I'll give you more favorable coverage if you let me into the White House?

 

DAVID FOLKENFLIK I just you know, I think about something you wrote in your book. You write about his influence. You describe his ability and this is your quote, to get people around him to adopt his behavior.

 

MAGGIE HABERMAN Mm hmm.

 

DAVID FOLKENFLIK Are there ways in which journalists were themselves shaped by Trump in their rhythms and how they thought about stories and how they defined what news was — perhaps to a way that in the moment they may not register or recognize.

 

MAGGIE HABERMAN When Trump came to DC, a lot of reporters had never encountered someone like him. I don't think every tweet needed to be covered the way it was. I didn't think it then. I don't think it now. But I think that for the Washington press corps, here's a president who was tweeting all the time. And so they assume that there's meaning, there has to be meaning to why he's saying this. And I don't think that was newsworthy all the time, because he doesn't actually intend all of these tweets to be meaningful statements. But I think that the press treated them like they were.

 

DAVID FOLKENFLIK You have a bunch of scoops and new revelations in your book, enough to inspire a New York Magazine story with twenty, what they call “bonkers revelations,” ranked. Many of them offer vivid details of how Trump controlled this environment. They range from the wild story that Trump liked to flush memos down the toilet, which you backed up by slapping some photos of it on Twitter, to the strange and also toilet-related detail that Trump didn't want to share the same toilet as former President Barack Obama and in fact, had the toilet seat replaced. And then you have this line here, which was pretty memorable. He rejected a plea to distance himself from white supremacists with the line, “a lot of these people vote.” Given these revelations, what is your thought process in sorting out what you owe readers of The New York Times in real time and what you wanted to present in the book?

 

MAGGIE HABERMAN If I had known this in real time, David, I would have put it in the paper. So it's not a choice.

 

DAVID FOLKENFLIK Can you just give a feel? Because I think it may actually serve in some ways as a rebuttal to those who say, you know, this is bad faith. If you learn this in November of 2020, it's very different than if you learned it three days before your book closes.

 

MAGGIE HABERMAN There's a big time gap in between, but it was after February 2021 when the impeachment trial had ended. And that kind of answers the question.

 

DAVID FOLKENFLIK I do think that, you know, personally as a reader for decades, a paying subscriber to  The New York City Times, there's a part of me that says even if you found that out a lot after the impeachment. That's something that we as citizens should know. Why is it okay –

 

MAGGIE HABERMAN David, you know it now. Do you not know it?

 

DAVID FOLKENFLIK I do, But this is, you know — you said you turned in the book in 2021. There may be a good affirmative reason.

 

MAGGIE HABERMAN I didn't say I turned in the book in 2021. It's really important to get this right.

 

DAVID FOLKENFLIK Yes, it's why I'm asking

 

MAGGIE HABERMAN Yes. I turned to the book in earnest reporting project after February 2021, which is when the impeachment trial — and I have just answered your question that I did not know this in real time. And if I had known it, I would have published it. I guess one thing that I would say to you is that answering the question doesn't really seem to be enough. Right. I've answered when I learned this. And you're still saying that you should have done something differently.

 

DAVID FOLKENFLIK I'm trying to pose the question that I think is legitimate to pose and may have equally legitimate response. I just you said when it was done subsequent to, but I don't feel I know in the almost year and a half in interregnum when that was.

 

MAGGIE HABERMAN I get that there's stuff that we don't talk about, as you know, and you're a journalist. So you know this there are just certain things that we don't talk about, about process, because in part, it can reveal who is telling us something. But if I had known about this in real time, I would have published it.

 

DAVID FOLKENFLIK I'm glad we cleared up the timeline there. I just want to hear more about your thought process in what made sense to present in the book form and what to share with Time's readers more promptly.

 

MAGGIE HABERMAN Yeah, I'm not going to go into depth on that, David. The process of writing a book is different. I was in touch with my editors throughout. You know, I'm going to leave it there. The one thing I would say is that what I have learned is that clarifying this stuff doesn't actually make it stop. I've answered your question on the timing, on the not leaving thing, and I think I'm going to leave it there.

 

DAVID FOLKENFLIK Sure. Let me just make the last pitch. It seems to me that without in any way wanting compromise, sourcing, that, you know, transparency is a journalistic virtue on its own.

 

MAGGIE HABERMAN And I'm being as transparent as I can be, and I think more transparent than a lot of others who have been in the same position. But that's where I'm going to leave it.

 

DAVID FOLKENFLIK On this and some other issues. There are times where people inside and also outside the profession are tough. And it's often, I think, personalized and made about you rather than The New York Times. New York Times is a huge staff in Washington. It's got 1800 journalists. The idea that you define, should stand for whatever the perceived flaws of the Times are seems to me quite unfair. Sometimes you get into the fray. Sometimes you announce you're pulling back from social media. What's your philosophy on how much to engage?

 

MAGGIE HABERMAN I think I announced once that I was pulling back from social media. That was several years ago. You know, it was impossible to get off of Twitter when Trump was president because that was his preferred medium. I think Twitter is not a great forum for having any of these conversations. None of us is above criticism. I certainly am not. But I just don't think Twitter is a great place to have these discussions.

 

DAVID FOLKENFLIK You've compared working on the Trump beat to a book called the Iowa Baseball Confederacy about a game that never ends. I take that that means the book isn't about closing a chapter in your career. But I got to say, it reminded me a bit of the question General Petraeus famously asked about invading Iraq: “How does this end?” So, Maggie Haberman, how does this assignment ever end for you?

 

MAGGIE HABERMAN I don't know. I mean, I don't know. The story isn't over, but I don't know what the next couple of years look like. You know, I assume he will be a candidate, but I just don't know. I don't know where it goes.

 

DAVID FOLKENFLIK Thank you, Maggie.

 

MAGGIE HABERMAN Thank you, David. Thanks for having me on.

 

DAVID FOLKENFLIK Maggie Haberman is author of the book Confidence Man: The Making of Donald Trump and the Breaking of America. Coming up, how big law became big business. This is On the Media.

 

[BREAK]

 

DAVID FOLKENFLIK This is On the Media. I'm David Folkenflik, sitting in this week for Brooke Gladstone. In the midst of scoops and scandal surrounding Donald Trump, there is one constant: litigation. Hundreds of suits filed against and by him — the latest filed this week.

 

[CLIP]

 

NEWS REPORT Former President Donald Trump suing CNN saying the network defamed him. Trump seeking $475 million. [END CLIP]

 

DAVID FOLKENFLIK Hard to forget some of the more famous members of Trump's legal team. Rudy Giuliani was a news story all his own for many months. And then there's the giant law firm Jones Day, which had a revolving door with the Trump White House and became something of a household name itself in the last few years. But it was not ever thus. Back in 1908, the American Bar Association made it illegal for lawyers to advertise themselves, aside from the standard business card lawyers used to hand out. You couldn't even have your name and number in the Yellow Pages. That all changed in 1977, when the Supreme Court ruled in Bates v State Bar of Arizona that lawyers promoting themselves constituted a protected form of commercial speech. The case was a win for small firms looking to provide affordable legal services who, without ads, had historically relied on a risky game of client telephone. But as decades passed, the consequences of that ruling changed, as demonstrated here by the cast of Saturday Night Live.

 

[CLIP]

 

SNL CAST Hi, I'm Lisa Broderick.

 

SNL CAST And I'm Jeremy Gains.

 

SNL CAST Have you been injured in an accident? Talk to us. We'll get you the money you deserve.

 

SNL CAST After my accident, Jeremy Gans got me a settlement of $6,000.

 

SNL CAST Thanks to Lisa Broderick, we were awarded $2 million.

 

SNL CAST Wait, those guys got how much? [END CLIP]

 

DAVID ENRICH The most obvious effect is that, as you can see today, anytime we drive down a highway, the world is blanketed with ads for lawyers.

 

DAVID FOLKENFLIK David Enrich is the business investigations editor at The New York Times and author of the new book Servants of the Damned: Giant Law Firms Donald Trump and the Corruption of Justice. And he says the Bates decision was the first in a chain reaction that turned the profession of law into an industry, and that the media that covered it was slow to catch on. 

 

DAVID ENRICH I think the more insidious effect, which took a little bit longer to kick in, was that lawyers were now free to promote themselves in other ways. They could now start soliciting clients. It had been the case that lawyers wary of violating these bans on self-promotion, they would wait passively for clients to arrive at their doorstep. Lawyers did not talk to the media. They could go to conferences and other business cards.

 

DAVID FOLKENFLIK So right before the Supreme Court heard Bates, there was a student at Yale Law School. He wrote an article that would also change perceptions of the legal profession. How did Steve Brill reshape the way lawyers thought about themselves?

 

DAVID ENRICH Well, Brill came up with the idea that the legal profession deserved all of the attention and kind of excitement that one would expect from a sports reporter or a Hollywood reporter covering the movie industry. And he started this with a magazine article he wrote while he was still a student at Yale that looked at a big takeover fight involving Colt Industries, the big gun company, and looking at the two very aggressive and enormously wealthy lawyers at big firms that were litigating this takeover fight. The article went viral 1970s style, at least in Brill's telling today, and the success of that story and how much it resonated with readers of New York Magazine gave him the idea that maybe he could start an entire magazine devoted to covering the legal profession. And that magazine became the American lawyer, and it immediately changed the industry.

 

DAVID FOLKENFLIK But after Bates versus the State Bar of Arizona, tons of publications surfaced. What distinguished American Lawyer? What made Brill's publication different?

 

DAVID ENRICH Starting in the mid 1980s, Brill and his team got the idea that they would start publishing annual rankings of the biggest law firms, and not just in terms of the number of lawyers they had or the number of offices they had. But they would start publishing a lot of financial information about the firms in terms of how much money they made, how much they paid their partners, and how profitable they were. Less than a decade earlier, the discussion of money and profits was really uncouth, and in any case, it was top secret. And so Brill and this team of reporters set out to get under the hood at all of these big law firms and figure out and then publish what their finances were by letting everyone know how much everyone else was making, it allowed people to start competing with their rivals and competing internally with their own firms to get more money.

 

DAVID FOLKENFLIK Sounds a little bit like baseball after free agency, when people were allowed to talk about money to share information and had some agency about where they landed.

 

DAVID ENRICH Yeah, I think that's exactly right. The result was that law firms had to start paying their employees more, which put a lot of pressure on the law firms to find new sources of revenue. And the biggest way they did that was they would go out trawling for more clients and becoming much more loose about the types of assignments they would take on. And all of a sudden, we're in an era where many, many law firms have thousands of lawyers all over the world. When a couple of decades earlier, that concept would have just been completely unimaginable to almost everyone in the profession. And obviously, the big difference between baseball and lawyering is that lawyering is something that is ingrained in the fabric of our justice system and our Constitution. Having lawyers and law firms that are much more focused on figuring out ways to fill these revenue holes that they have — that potentially causes a lot more problems than having diluted loyalty to a certain baseball team in a certain city.

 

DAVID FOLKENFLIK So advertising allowed for law firms to have a greater reach and to solicit more clients. It allowed lawyers to talk to the press. That kind of coverage, in turn, depicted firms more like businesses and firms, in some ways; acknowledging the depiction, really started acting like businesses. And that history, that cycle as you present it, leads to the creation of legal firms like Jones Day. For someone who's never heard of Jones Day. How would you describe it?

 

DAVID ENRICH It's a firm that was started in the 1800s in Cleveland, Ohio, representing mainly local companies. And it has today become one of the largest law firms in the world. And it represents not only a who's who of big, powerful companies and industries ranging from fairly anodyne companies like General Motors to much more controversial companies like Purdue Pharma. And it also has branched into politics. It was the law firm that represented Donald Trump's 2016 and 2020 campaigns. It today represents a who's who of Republicans. I picked them as a focus for this book because in many ways they are emblematic of the shift that the profession has undergone going from a profession to an industry.

 

DAVID FOLKENFLIK In your book, you describe a pivotal moment in the firm's history where they were called Judas Day. What happened?

 

DAVID ENRICH So one of Jones Day's clients for many years had been a guy named Art Modell. And Art Modell, among other things, was the owner of the Cleveland Browns NFL team in Cleveland. Jones Day had represented him on a bunch of different things, including some litigation and business disputes he'd been involved with. And then in the mid-nineties, Modell secretly began having talks with the city of Baltimore about moving the Browns from Cleveland to Baltimore. And he went to his people at Jones Day and said there's likely to be a pretty big backlash. Do you have my back? And Jones Day said yes. So this move got announced and the city of Cleveland just went ballistic. The backlash turned borderline violent, and then that abuse started spreading to Jones Day as its lawyers. And at one point, the editor of The Plain Dealer newspaper in Cleveland called the head of the firm and said, just a warning. We are going to describe you in tomorrow's newspaper as “Judas Day,” because you have betrayed the city of Cleveland. They saw this as kind of a call to arms, and it essentially led them to double down and representing Modell. And the firm now uses the Judas Day moment as a justification in a defense of a lot of the polarizing work that today they do, whether it's on behalf of a tobacco company or a gun company on the one hand or on the other hand, on behalf of a polarizing politician like Donald Trump.

 

DAVID FOLKENFLIK The classic rebuttal is that an attorney's involvement, a firm's involvement, no matter what the legal problem is the American way; no matter how upsetting the charge people are entitled to representation. What is wrong with that? In fact, I think there's something very right with that.

 

DAVID ENRICH No, I totally agree with you that there's something very right with that. The Sixth Amendment to the Constitution gives anyone who is accused of a crime the right to legal representation. But I think it's worth pausing for one second to note that the reality is that that is less and less what the modern law firms are actually spending their time or their resources doing. Much more of their work involves things like helping people or institutions avoid or water down government regulations, helping them hide money, or at least move money in ways that will avoid regulatory scrutiny, or avoid taxes. I'm not even saying people shouldn't be entitled to pay for those services. I'm saying that lawyers that provide those services, I think, are opening themselves up to media scrutiny.

 

DAVID FOLKENFLIK Much of the time, these big and influential law firms aren't covered particularly skeptically or particularly critically. They're just seen as sort of agents of the folks they represent. Why aren't they subject to that kind of scrutiny themselves?

 

DAVID ENRICH I think part of it is just a relic of the days when lawyers were viewed as kind of accessories. And because they're public servants or public officers of the court, they don't deserve that kind of scrutiny. I think a bigger reason lately is that lawyers are sources. They’re really good sources a lot of the time. And, again, this is not about Jones Day. This is about the media writ large. We find excuses. I have personally found excuses in my own brain over the years for not wanting to write about great sources.

 

DAVID FOLKENFLIK Give me a feel for how a law firm can help a reporter who may or may not be an expert in a given terrain.

 

DAVID ENRICH Look, I covered the banking industry for a long time, and so there were big law firms that had huge banking practices. And within those firms, there were maybe three or four top partners who were doing all the banking work. And so I would develop relationships with these lawyers and they would give me tips. Sometimes they would give me documents. It's generally not stuff where they're betraying any client's confidences. It's gossip that they've heard. I spent a long time, I think, very naively in hindsight, just thinking that the reason lawyers were doing this was A. that they enjoyed talking to the media and, you know, they would learn things from the media as well as feeding things to the media and that lawyers also kind of thought that they were spinning things to advance their client's interests. But I think that is really not the root of what was going on. The root of it was that lawyers viewed very cozy relationships with reporters as the powerful disincentive for that reporter or that entire news organization to be writing critically, not just about that lawyer, but about his entire firm. They are using this pretty explicitly that we can either be your friends or your foes. And if we're your friends, you can count on us to be a reliable source of information on things that matter to your readers and to your reporters. Or we can be your foe and you can write about us critically, and you've got this nasty story about us, and you can just kiss that access goodbye.

 

DAVID FOLKENFLIK Not only do you kiss access goodbye, but actually you document that they can take some pretty prickly stances. Indeed.

 

DAVID ENRICH I think it's worth listeners knowing that it has become standard operating procedure when writing about big businesses that are represented by law firms that you are going to get as a journalist, threatening letters from that law firm to yourself, to your editor, to your publisher, basically warning about the risks of litigation. As I neared the completion of the reporting on this book before the book was actually written, I went to Jone's Day with a lot of fact checking questions and as is, I think, standard in effect and process, there were facts that I had wrong, which is the exact purpose of this exercise to begin with. So they provided a bunch of information correcting some of the mistakes I had made, and I wrote the book accordingly, incorporating most of what they had told me. Several months later, my publisher got a letter from an outside lawyer that Jones Day had handled, warning that my book, which they had obviously not seen, was replete with inaccuracies as evidenced by the fact the fact checking questions I had sent them had inaccuracies in them. And this was the kind of the beginning of a barrage of letters that my publisher and I received from lawyers working on behalf of Jones Day. When you're working at the New York Times, that's something that we're accustomed to. We have procedures in place and very good lawyers in place to deal with. But for a lot of other publications, that is not the case. And I think these letters can have just a really dramatic, chilling effect on what actually ends up getting written and also on the future appetite of journalists to take on subjects like this.

 

DAVID FOLKENFLIK What do you want the ordinary reader to take away from your book, and what would you want journalists to take away from what you've written here?

 

DAVID ENRICH There are two groups of people that I was thinking about as I wrote this book. One is fellow journalists, and I really hope that the book encourages other journalists to dig more aggressively into other big law firms in the legal industry writ large. I think this is a hugely undercovered industry. And the other big audience that I really hope pays attention to this are law schools, where many aspiring lawyers and the professors who teach them have not thought very closely about the role that they are playing in the creation of these mega law firms and the lack of value that they are providing to the world and to our democracy and to our economy and society. And I hope that there is a little soul searching that goes on as people read this book.

 

DAVID FOLKENFLIK David, thank you so much.

 

DAVID ENRICH It's my pleasure. Thanks for having me.

 

DAVID FOLKENFLIK David Enrich is the author of Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice. Full disclosure, New York Public Radio OTM’s parent company, has used Jone's Day for legal work in the past. So has my employer, NPR.

 

That's it for this week's show! On the Media is produced by Micah Loewinger. Eloise Blondiau, Molly Schwartz, Rebecca Clark-Callender, Candice Wang and Suzanne Gaber with help from Temi George. Our technical director is Jennifer Munson. Our engineers this week were Andrew Nerviano and Adrien Lily. Our show is edited by executive producer Katya Rodgers. On the Media is a production of WNYC Studios. Brooke Gladstone will be back next week. I'm David Folkenflik – thanks for listening.

 

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.   

 

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.