By Michael Bobelian
Attacks on the press are as old as the nation. In 1798, Federalist lawmakers enacted the Sedition Act to silence their media critics, making it unlawful to publish any “false, scandalous and malicious writing … against the government.” Fearful of the Act’s punitive measures – a fine reaching $2,000 or up to two years in prison – many publications censored themselves. Backed by supportive jurists, the Adams administration prosecuted those bold enough to defy the law, securing 10 convictions and forcing several newspapers to close down.
The press remained a target for those in power throughout the nation’s history. During World War I, another Sedition Act intended to clamp down on anti-war speech led to the conviction of 2,000 dissenters. During the “Red Scare” of the 1950s, Senator Joseph McCarthy bullied inquisitive journalists, smearing them as Communist sympathizers. Public officials and titans of industry routinely exploited libel laws to snuff out unfavorable stories or financially cripple newspapers until the 1964 landmark ruling, New York Times v. Sullivan, granted journalists broader protections against such tactics.
Richard Nixon’s assault on the media reached new heights until crumbling during the Watergate scandal that led to his resignation in 1974. Nixon’s efforts – capped off by the compilation of an “Enemies List” that featured such journalists as columnist Jack Anderson and CBS’s Daniel Schorr – included a push to terminate the Washington Post’s local television licenses, attempts to block the publication of the Pentagon Papers, directives to freeze out disfavored reporters, wiretaps and investigations of journalists and antitrust suits directed at the three primary television networks. Orchestrating his staff from behind the scenes, Nixon dispatched Vice President Spiro Agnew to publicly lambast the press as a “small unelected elite.”
A half century later and under the Trump Administration, the journalistic media again face a campaign of lawsuits, regulatory oversight and public derision that threatens the industry’s teetering financial status and independence. With this deluge coming at a time when trust in the mainstream media has sunk to new lows, it’s fair to ask how American journalism will survive this current storm.
Regularly demeaning the press as “fake news” and “THE ENEMY OF THE PEOPLE,” President Trump has long expressed disdain for the media and has sued print and broadcast journalists on multiple occasions. Underscored by a spate of high-profile lawsuits, he has amped up this approach over the past year.
Unlike his previous efforts, which often ended in losses, his strategy has borne more fruit this time around. ABC’s willingness to dole out $16 million to settle a defamation suit arising from George Stephanopoulos’s mischaracterization of a verdict in a lawsuit pitting Trump against E. Jean Carroll epitomized this shift.
At first glance, ABC appeared vulnerable. Stephanopoulos falsely repeated that Trump was found “liable for rape” – in responding to whether “Mr. Trump raped Ms. Carroll,” the jury had answered “NO.” To make matters worse, in an earlier interview with Carroll, Stephanopoulos had asked about her thoughts when she first heard that Trump “was not found liable for rape.”
Thanks to the high threshold for proving defamation established in Sullivan, a public figure like Trump still had to unearth evidence that Stephanopoulos acted with reckless disregard of the truth or actual malice. Here is where ABC had some wiggle room. The judge overseeing the Trump-Carroll litigation held that although the jury didn’t find Trump liable for rape “within the narrow, technical meaning of that term” in New York, “Trump in fact did ‘rape’ Ms. Carroll as that term commonly is used and understood in contexts outside of the New York Penal Law.”
Even after a preliminary but not dispositive ruling created a setback for ABC, Trump still faced significant legal barriers to collecting a sizable damage award. He would have had to prove that Stephanopoulos’s remarks hurt his reputation enough to cost him business opportunities, endorsements or other sources of income. On the surface at least, Trump’s memorabilia continued to sell in record numbers and his real estate holdings, budding media empire and other business interests continued to thrive after Stephanopoulos’s blunder.
Despite the hurdles Trump had to overcome, ABC’s parent company, Disney, decided to settle the case. According to the New York Times, Disney acted out of fear of a sizable jury settlement in Trump-friendly Florida, wanted to avoid antagonizing the incoming president and worried that the case could undo the robust First Amendment protections established in Sullivan – a goal Trump has championed over the years.
Though Supreme Court Justices Clarence Thomas and Neil Gorsuch have indeed called for a reevaluation of Sullivan, the Court’s other members have shown little willingness to upend the landmark opinion.
In contrast to his case against ABC, which relied on well-established legal doctrines, Trump’s lawsuits against the Des Moines Register and renowned pollster J. Ann Selzer are far more novel. Employing a consumer fraud act intended to regulate “consumer merchandise” sales made under false or deceptive business practices, Trump has accused the pollster of “brazen election interference” – a claim presumably better situated within election rather than consumer protection law.
His $20 billion case against CBS for an allegedly biased edit of a “60 Minutes” interview with Kamala Harris during the presidential race applied a statute governing deceptive trade practices. Since CBS’s editorial decision had no bearing on the substance of Harris’s answer to a question involving Israel, it was wholly consistent with standard ethical practices. Yet, the lawsuit went on to characterize these customary and uncontroversial edits of a lengthy response into a shorter clip as “partisan and unlawful acts of election and voter interference.”
The long odds of these actions may not matter to Trump, who has turned to litigation to harass unfriendly voices if not bludgeon them financially. (He has also sued Bob Woodward and the Pulitzer Prize board.) The lack of success in many of his past cases makes this strategy evident. Years after losing a defamation suit against Timothy L. O’Brien, Trump admitted to the Washington Post: “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.”
That same logic still seems to apply today. In the case of CBS, however, Trump’s leverage resides largely outside of the courtroom. According to CNN’s Jake Tapper and others, Shari Redstone, the biggest shareholder of CBS parent Paramount Global, has pushed for a settlement with Trump to safeguard Paramount’s proposed merger with Skydance Media.
If that’s true, CBS would follow a similar pattern of capitulation by media moguls. For a combined $35 million, Meta and X (formerly Twitter) both settled with Trump over accusations of censorship arising from their suspension of his accounts in the wake of the January 6th riot, which marked the low point in Trump’s public standing. Even though X had won a dismissal (which was under appeal) and Meta’s case remained strong, their settlements reflected the changing winds arising from Trump’s presidential victory.
Amazon founder, Jeff Bezos, has also sought to win favor with Trump, who could potentially direct tens of billions of government contracts to the company, a figure that far exceeds Bezos’s ownership interest in the Washington Post. Though Bezos’s $1 million donation to Trump’s inauguration was in line with some other business leaders, his decision to squash the Post’s pending endorsement of Harris 11 days before the election called into question the venerated newspaper’s independence. This move, which Bezos defended, came on top of Amazon’s $40 million deal to film a documentary of First Lady Melania Trump.
Under these circumstances, the key to understanding these cases is not through a narrow examination of the underlying legal issues but a broader appreciation of the current power dynamic between Trump and the media.
In that light, these lawsuits represent one aspect of Trump’s multi-pronged battle plan. Compared to his first term in office, when his spokespeople sparred with journalists – remember the row over inauguration attendance figures, Jim Acosta’s banishment from the White House and the dearth of press briefings – Trump has signaled a greater willingness to use the levers of government to bring the press to heel.
While his musings to terminate the broadcast license of major media companies could be brushed aside as hyperbole, newly appointed FCC chairman Brendan Carr confirmed that “license revocation” remains on the table for violations of federal law.
With Carr at the helm, the agency is also scrutinizing CBS’s “60 Minutes” interview with Harris, assessing whether NBC’s DEI policies conform with federal regulations and reviewing the legality of PBS’s and NPR’s sponsorships. “For my own part,” Carr wrote to the two quasi-public media networks, “I do not see a reason why Congress should continue sending taxpayer dollars to NPR and PBS given the changes in the media marketplace.”
Compounded by an endless stream of public ridicule by Trump and his allies, moves to cherry-pick the reporters covering the White House and calls to fire disfavored journalists such as Eugene Robinson, the cumulative impact of these actions has been to hammer the press into a defensive posture.
This pattern follows a global trend exemplified by Russia, Turkey, and Hungary, which have seen independent journalism squeezed into oblivion over the past decade. Will the same happen here or will the press be able to survive this onslaught?
Although the outlook appears bleak, especially in the face of the unwillingness of congressional Republicans to speak out against these attacks, the media can stand up for itself. Gannett, which owns the Des Moines Register, has shown the way by vigorously defending itself in court, something other news organizations may be more inclined to do in the wake of the internal and external criticism directed at Disney and Paramount for their posture.
Selzer’s partnership with The Foundation for Individual Rights and Expression, which advocates for free speech, can also serve as a model for independent journalists and small news outlets lacking the funds to partake in protracted litigation. In that light, First Amendment supporters should build up the resources of the Society of Professional Journalists’ Legal Defense Fund and like-minded organizations defending journalistic freedoms. Finally, the press and its allies should push to strengthen and expand the 33 state-based anti-SLAPP statutes designed to protect journalists from dubious legal actions aimed at intimidating them into silence. A bipartisan federal anti-SLAPP bill co-sponsored by Representatives Jamie Raskin and Kevin Kiley could also provide a formidable shield for journalists.
Outside of these specific measures, if history is any guide, the press will bounce back. Congress repealed the 1918 Sedition Act in 1921, and Woodrow Wilson, who had supported the bill, granted clemency for many of those convicted under its restrictions. By standing up to McCarthy, the CBS broadcaster Edward R. Murrow helped bring down the abusive Red baiter. The Supreme Court established robust media protections in Sullivan and limited the government’s ability to censor publications in the Pentagon Papers case a few years later – both of which stand as precedents to this day.
As for the 1798 Sedition Act, instead of cowing opposing voices, it backfired, serving as a rallying cry for Thomas Jefferson to defeat John Adams in the 1800 election. More importantly, James Madison’s defense of a robust and independent press served as a clarion call for a young nation. The consequences of the Act’s threat to the media, Madison warned in terms that resonate to this day, “ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
Michael Bobelian is a journalist and lawyer who has written about legal affairs, human rights and history. His latest book is “Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court.”
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