Frivolous libel suits—and threats of such suits—are among the oldest prongs of President Donald Trump’s protracted war against the press. He’s presently engaged in several, including against CBS, The Des Moines Register, Gannett, and the Pulitzer Center. His goal in many of them is evidently to silence unfavorable coverage not by winning but by simply intimidating his opponents and exhausting them by way of their wallets.
Such lawsuits—aimed at muzzling critics by making them pay heftily for a defense—are known as strategic lawsuits against public participation, or SLAPPs, and their logic was expressed no better than by Trump himself, as he reflected contentedly on losing a case to Timothy O’Brien, a journalist who’d challenged Trump’s billionaire status, and O’Brien’s publisher: “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
Trump’s litigiousness dates back to his business career, but it really accelerated during his 2016 election bid. And small wonder that this habitual litigant, famous for lambasting the “fake news media,” soon trained his sights on New York Times v. Sullivan, the landmark 1964 Supreme Court ruling that, in a watershed moment for freedom of speech and the press, nixed a segregationist campaign of weaponized libel suits.
Under Sullivan, publishers and speakers enjoy wide latitude in discussing public figures, who cannot recover damages for defamatory falsehoods unless they prove that the defendant has made them with “actual malice,” meaning in this context not the intent to do evil but the knowledge that a statement was false or a “reckless disregard of whether it was false or not.” During his first term, Trump repeatedly disparaged the ruling and, as legal historian Samantha Barbas put it in a 2021 Washington Post article, persisted in suing journalists as if it simply “didn’t exist.”
Thankfully, Trump alone can do the decision no harm; he or someone else would have to persuade the Supreme Court to overturn it. But as New York Times business investigations editor David Enrich reports in his forthcoming book, a movement of lawyers, judges, activists, and politicos has risen to this occasion. Murder the Truth: Threats, Intimidation, and a Secret Campaign to Protect the Powerful investigates this campaign to overturn Sullivan and make it easier for public figures to wage a war of legal attrition against the press. In shedding light on the movement’s key players, as well as telling the stories of many journalists beleaguered by censorial lawsuits, Enrich has produced at once a strong defense of the ruling and an incisive work of accountability journalism.
To understand the origins of the besieged Sullivan ruling—and the precarious state of the press prior to it—one must look back to the Civil Rights Movement. Libel law was then up to the states; in Alabama and most elsewhere, a defendant was liable unless he or she could prove the truth of an offending statement “in all its particulars.” As such, as Samantha Barbas explains in her book on Sullivan, Actual Malice,
Southern segregationists chagrined by Northern journalists’ civil rights coverage found SLAPPs avant la lettre to be “a potent weapon” to chase out Yankee newspapers.
A chance to use this weapon to great effect came in 1960, when The New York Times ran an advertisement by a civil rights group that contained less-than-airtight descriptions of police brutality against protesters in Montgomery, Alabama. The Times—perhaps impressed by the high profiles of those who’d signed onto the ad, including Jackie Robinson, A. Philip Randolph, and Eleanor Roosevelt—forwent its typically strict procedures for fact-checking ads and put the errors in print (the most extreme of which, though most were trivial, was a false charge that police had padlocked a university dining hall to “starve [protesters] into submission”).
While neither he nor any individual official was mentioned by name, Montgomery public safety commissioner L.B. Sullivan sued the Times over the ad—and on favorable ground, given the burden of proof in Alabama’s libel cases and the segregationist sympathies of its courts. Predictably, a Montgomery jury and then the state’s Supreme Court ruled in Sullivan’s favor, leaving the Times, at this point bedeviled by other suits as well, on the hook for millions.
With the specter of bankruptcy looming, the paper’s legal team ordered its reporters out of the state. But the Times refused to seek a settlement, on the assumption that truckling to Sullivan would only invite further litigation—and violate a time-honored no-settlement policy set forth by its former publisher Adolph Ochs. “I would never settle a libel suit to save a little money,” Ochs wrote to the Times’ lawyers in 1922, articulating the rule by which the paper would appeal Sullivan to the Supreme Court 40 years later. “If we have damaged a person we are prepared to pay all he can get the final court to award.”
In 1964, the highest court ruled unanimously in the Times’ favor. Writing the majority opinion, Justice William Brennan deemed Alabama’s libel laws “inconsistent with the First and Fourteenth Amendments.” Any rule “compelling the critic of official conduct to guarantee the truth of all his factual assertions,” Brennan wrote, especially “on pain of libel judgments virtually unlimited in amount,” inevitably results in “self-censorship.” That public figures must prove “actual malice” to recover libel damages became the law of the land.
First Amendment experts credit the ruling with no less than saving the Civil Rights Movement and clearing the way for watchdog journalism to flourish in the subsequent decades and beyond. As Enrich writes, Sullivan and its progeny (rulings that mainly expanded who constitutes a public figure) have protected journalists’ freedom to “investigate and write about those in the public sphere, even if they accidentally got a fact wrong.”
It wasn’t until quite recently that cracks appeared in the Sullivan consensus; Enrich’s first few chapters describe the approval the ruling previously enjoyed from both sides of the aisle. The consensus was well earned: While many of its detractors today say Sullivan enables biased left-wing journalism, Enrich demonstrates that the “actual malice” standard protects all who report and comment on public figures, including right-wing journalists, activists, and organizations.
The spread of anti-Sullivan sentiment, according to Enrich, was in large part catalyzed by Trump’s broadsides against the press and the concomitant boom in the field of defamation law. The major figures in the movement include deep-pocketed libel plaintiffs—oligarchs, billionaires, corporations, and other public figures with “secrets to hide and the financial resources to relentlessly hound their critics.” (While Ron DeSantis has framed the effort to weaken press protections as a fight between “the little guy” and “massive media conglomerates,” Enrich demonstrates that this formula gets things more or less backward; it’s figures of immense wealth and influence who truly stand to benefit from overturning Sullivan.)
Then there are the lawyers who, in recent years, have found lucrative business in filing suits and firing off threatening letters in response to negative coverage of their clients. Tom Clare and Libby Locke’s defamation firm, Clare Locke, features prominently in the book; the epilogue even recounts Enrich’s own run-in with the firm.
At the movement’s forefront are Supreme Court justices: Clarence Thomas, who first proposed reconsidering Sullivan in a 2019 concurring opinion in McKee v. Cosby, and Neil Gorsuch, who’s helped Thomas carry the anti-Sullivan mantle since stating, in a 2021 dissent, that the ruling “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
Both men have railed against the ruling in dissenting opinions, claiming that it’s outdated, divorced from the Constitution, and responsible for the proliferation of online disinformation. Judges in lower courts have taken this tack as well—as activists, legal scholars, and lawmakers do additional groundwork, including pushing for legislation that purposefully runs up against Sullivan, in hopes of giving SCOTUS an opportunity to revisit it (the same playbook, Enrich notes, that conservatives used to get Roe v. Wade overturned).
In response to these challenges, Enrich offers an unwavering defense of Sullivan. He points out, for instance, that contra the prevailing criticism, the media is by no means immune from accountability under Sullivan. Nor can Sullivan be rightly blamed for the spread of online disinformation—the lack of legal ramifications for which, he says, simply reflects “the futility of trying to sue an endless procession of mostly anonymous and presumably not-very-wealthy” internet trolls, not to mention Section 230 of the Communications Act, which shields social media companies from liability for users’ posts.
Most of all, Enrich argues, as his title suggests, that those leading the effort to overturn the ruling are driven less by concern for the truth than a SLAPP-happy desire to be able to smother it when its disclosure embarrasses them.
In addition to investigating and scrutinizing the anti-Sullivan push, Murder the Truth spends about as much ink recounting the harrowing stories of those who have found themselves in its crosshairs. The book examines case after case, from Gawker’s demise at the hands of Peter Thiel to a New Hampshire Public Radio reporter sued and harassed for reporting on accusations of sexual misconduct against a wealthy local entrepreneur. Facing the brunt of such attacks are independent journalists and reporters at small local news outlets, upon whom lawfare threatens to inflict (and in many cases has inflicted) ruinous financial damage. Murder the Truth describes in sobering detail the toll such ordeals have taken on the journalists involved, illustrating plainly what Justice Brennan meant when warning, in Sullivan and elsewhere, of “chilling effects” that deter the exercise of First Amendment rights.
Enrich’s Times colleague Adam Liptak recently wrote that certain signs bode well for Sullivan’s security—e.g., in Justice Brett Kavanaugh’s opinion in the unanimous January ruling E.M.D. Sales, Inc. v. Carrera, as well as in the court’s 7–2 ruling in 2023’s Counterman v. Colorado. Both contain positive references to the Sullivan decision, Liptak observed, indicating that Gorsuch and Thomas seem to remain the only two on the bench in favor of overruling it—“well short of the four it takes to add a case to the court’s docket, much less the five required to prevail on the merits.”
Still, as Enrich notes in his epilogue, our reactionary Supreme Court has been willing to unexpectedly “toss long-standing precedents out the window” before. He observes, too, the “ethical clouds” currently hanging over Justices Thomas and Samuel Alito, thanks to investigative reporting that many of their supporters dismiss as partisan hackery. At the very least, the movement that Murder the Truth describes is sure to be emboldened by the habitual litigant and anti-press crusader now occupying the White House. (And all the more if major media companies fail to follow the resolute example of Adolph Ochs’s no-settlement policy and capitulate to Trump.)
Just last month, billionaire casino mogul Steve Wynn made headlines for petitioning the Supreme Court to overturn Sullivan. Wynn, a Trump megadonor, sued the Associated Press in 2018 for reporting on accusations of sexual assault against him. In September, the Nevada state Supreme Sourt ruled for the AP, citing the state’s anti-SLAPP law. “The public had an interest in understanding the history of misconduct alleged to have been committed by one of the most recognized figures in Nevada,” the court said.
Appealing to the Supreme Court, Wynn’s petition argues that Sullivan promotes misinformation and that it was “wrong” when it was decided, ushering in a “golden era of lies” to which the court should put an end. This is just the latest lawsuit crafted to take down Sullivan—the tip of the iceberg under which Enrich gives a sweeping look.
The success of the campaign to return press freedoms to the days of L.B. Sullivan—and leave them at the mercy of elites like Wynn and Trump—would sound the death knell of accountability journalism, particularly that by local reporters, whose already precarious position would become untenable without Sullivan’s protections. As Enrich writes, if the burden of proof were flipped back to its pre-Sullivan orientation, many news outlets would find it safest to “avoid doing anything to offend the richest and most powerful people, institutions, and industries.” For smaller outlets and independent journalists, the calculus “would probably be even simpler.”
The richest and most powerful in our society dream of such a scenario, of operating free from transparency and accountability. They have clear incentives to back the movement Enrich probes. The reasons the rest of us must fend off its attacks should be just as obvious.
