Four Ways to Unbend the Media’s Knee
Disney/ABC
News' cave to Trump shows the dangers of ‘anticipatory obedience.’
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You’ve no doubt heard by now about ABC
News capitulating to Donald Trump. With the possible exception of FBI director
Christopher Wray resigning before his term was up, this is the most depressing
news since the election. ABC News’ act of cowardice reinforces why American
democracy is in peril: anticipatory obedience. Strongmen win by getting the
press to pull its punches and protect the powerful without being directly
ordered to do so.
I want to project forward to how the
press and public should fight back, but first, let’s quickly review how this
happened.
After a jury awarded E. Jean Carroll
$88 million in her lawsuit against Donald Trump, Judge Lewis Kaplan said this:
“The jury’s finding that
Mr. Trump ‘sexually abused’ Ms. Carroll implicitly determined that he forcibly
penetrated her digitally — in other words, that Mr. Trump in fact did ‘rape’
Ms. Carroll as that term commonly is used and understood in contexts outside of
the New York Penal Law.”
In a March 10 interview with Rep. Nancy Mace, a rape survivor, George
Stephanopoulos of ABC
News repeatedly pressed
Mace over how she can support a man held “liable for rape” in a civil case. For
clarity, a Washington Post account of the judge’s comments
was posted on the screen, which made it clear Stephanopoulos was using the
judges dictionary definition in his questions. Trump then sued ABC News and its
parent company, Disney, for defamation. His basic claim is that Stephanopoulos
should have avoided using “rape” and instead called it “sexual abuse.”
In a motion to dismiss, ABC’s lawyers
argued that Stephanopoulos’s claims were “substantially true.” That might seem dodgy to a layman, but
the legal standard in defamation cases allows for inaccuracies as long as the
gist remains true, as it did in Stephanopoulos’s interview.
On December 13, a judge ordered Trump
and Stephanopoulos to sit for long depositions the following week. Further
discovery would have posed risks to both sides. Stephanopoulos’ emails would
have been pawed over for signs of “actual malice” — the legal standard
requiring that the defendant not only erred but knew the story was wrong. Trump
would have had to once again implausibly deny ever meeting Carroll while ABC’s
lawyers dragged him through — on videotape — all of the highly damaging and
embarrassing evidence against him. He would also have been pressed to explain
why, as George Conway put it, there’s a “moral or reputational difference
between forcibly penetrating a woman’s vagina with fingers and doing so with a
penis.”
All in all, it was ABC News that had
the leverage going into the deposition phase — but ABC News that caved.
Trump would not have been satisfied
with the proper remedy—a clarification aired on ABC News—or even an apology. He
wanted some kind of monetary settlement, which almost all news organizations
have long rejected in order to avoid opening the floodgates for more suits.
“The case undoubtedly posed a genuine level of risk for ABC News since George
Stephanopoulos had inaccurately summarized the jury verdict as one in which the
jury had found Trump liable for rape when it had instead found him liable for
‘sexual abuse’ and not rape,” the noted First Amendment attorney Floyd Abrams
told CNN. “But for a person, especially one now about to become our president,
held by a jury to have committed an act of sexual abuse to receive an amount of
this magnitude in settlement is disturbing.”
That’s putting it mildly, considering
that most legal experts say ABC News would have eventually won. In the Columbia Journalism Review, Richard J. Tofel summarized the questions the network should
now answer. And
in The Washington Post, Erik Wemple captures the outrage among media critics.
The precedents aren’t cloudy.
Stephanopoulos was backed by a long line of cases going back to Sullivan vs. New York Times, the landmark 1964 Supreme Court
decision that protects journalists from lawsuits brought by public figures
unless they have acted with “reckless disregard” for the truth. That’s a
standard so high that no president before Trump has bothered to sue even
vicious, lying critics because, however sorely tempted, they knew they would
lose. And in Masson v. New Yorker
Magazine, the Supreme Court ruled
that libel law “overlooks minor inaccuracies and concentrates upon substantial
truth.”
But Disney CEO Bob Iger and his
executives bent the knee anyway. They “obeyed in advance” to curry favor with
Trump and lessen the odds that he would seek vengeance against them. Disney
apparently didn’t like being on the wrong side of Florida Gov. Ron DeSantis and
had no interest in repeating the experience with Trump. At least for now,
arousing Trump’s ire is bad for ratings and thus profits.
The calculations for Disney aren’t
hard to figure. Settling the case for a $15 million contribution to Trump’s
presidential “library” (no doubt a future shrine at Mar-a-Lago that will
contain no criticism), $1 million in legal fees, and an apology must have
seemed a necessary price for entry into Trump’s protection racket. Of course,
that’s easy to rationalize if you’re a corporate suit, not a journalist.
And Stephanopoulos? He told Stephen
Colbert earlier this year: “I’m not going to be cowed out of doing my job
because of a threat.” That line has not aged well. I sympathize with those who
say he should quit, but understand why he hasn’t. He can still do more to hold
Trump accountable from his ABC News perch than he could leaving for….where?
YouTube? But if he stays, he needs to show the public that he can’t be
intimidated by either Trump or his own bosses.
When a news organization folds like an
accordion, it chills aggressive coverage and rewards Trump the Troll for
pushing forward with other nuisance suits, including the one he is bringing
against CBS News because he doesn’t like how the
network edited an interview with Kamala Harris. (Trump’s “evidence” is
that Face the Nation ran a longer, less flattering
Harris answer to one question than 60 Minutes, so the latter must have been illegally trying to help her). He is also
suing CNN, the New York Times, the Pulitzer Prize Board (for giving
awards to the Times and Post for their coverage of Russian interference in the
2016 election), Bob Woodward, and the Des Moines Register (for its inaccurate pre-election poll).
I have a little personal experience
with the litigious side of Trump. In 1991, as Newsweek’s media critic, I appeared in a
critical documentary called Trump: What’s the Deal? In the original version, I explained
that Trump made up a story about Soviet Premier Mikhail Gorbachev planning to
visit him at Trump Tower (both the State Department and the Soviet Embassy had
told me it was bullshit). I pointed out that he falsely claimed that he was the
richest real estate developer in the country — this at a time when he was
facing bankruptcy. His lawyer sent me a letter threatening to sue. Newsweek’s lawyer laughed and said, “Join
the club.” In the end, Trump didn’t bother to sue me because he succeeded in
suppressing the film for nearly 25 years until it surfaced online in 2015, with
an anodyne soundbite from a much younger me at my messy desk (12:54 in the film
if you care).
Nowadays, there’s nothing to laugh at.
Over the weekend, Bill Kristol posted on Bluesky:
“ABC’s settlement with Trump feels
like it could be an inflection point in the Orbanization of our politics.”
We’re not Viktor Orban’s Hungary yet,
though Trumpsters say they plan to openly emulate Orban, including his efforts
to co-opt (rather than crudely muzzle) the press. It’s up to the rest of us to
fight back. Here are four ways to do so.
1. Shame the Knee-Benders
Social media has a lot of power
nowadays to make corporate America pay attention. Consider how UnitedHealth
Group CEO Andrew Witty was recently forced to respond to an online onslaught after one of his top executives
was murdered. Much of the response was sickening, but that hardly discredits
the idea of naming and shaming corporate executives who play to Trump’s
authoritarian impulses. So, Iger and ABC News executives should be politely
confronted on their capitulation when they venture out in public. The Disney
board is in transition, but board members of other media companies that pull
their punches must be put on notice that they, too, will be held accountable
for anticipatory obedience.
Before the election, I opposed the
reader boycott of The Washington Post after Jeff Bezos pulled the
paper’s endorsement of Kamala Harris. We need the Post’s reporting. But I like
that Bezos felt the heat and, despite contributing to Trump’s inaugural
committee, has been compelled to stress that the Post will continue to cover
Trump aggressively.
2. Petition the Bosses
The late Charlie Peters, founder of
the Washington Monthly, taught that in any organization,
subordinates have more power than they think they do. Nowadays, it seems the
inmates are running all kinds of asylums, including news organizations. That’s
just the way millennials roll. Recall what employees did as part of the #MeToo
movement and after the murder of George Floyd. So reporters and editors at ABC
News and elsewhere must fight anticipatory obedience at every turn, as Mariel
Garza, the editorials editor of the Los Angeles Times, did when she quit after the owner, Patrick Soon-Shiong, began kissing
up to Trump. That also means pushing back hard when lawyers try to soften
hard-hitting stories or otherwise pull punches.
3. Sue Trump
After all the publicity about the
Supreme Court’s decision to grant presidents immunity from criminal prosecution
in office, many assume that presidents are also protected against civil suits.
That’s not true. The high court’s decision in Clinton vs. [Paula] Jones still stands, which means that
presidents can be sued for anything beyond what the court in Nixon vs. Fitzgerald defined as “the outer perimeter” of
their official duties. In other words, Trump can potentially be sued by almost
anyone he has defamed in public attacks or on social media. That’s a long list.
Capitol police officers have a civil suit against Trump going right now. Others
should consider bringing their own civil cases against the president, giving
him a taste of his own medicine, as E. Jean Carroll successively did.
4. Sue the Liars
And why limit it to Trump? Kash Patel,
RFK Jr., Pete Hegseth (if they’re confirmed), Elon Musk, Steve Bannon, Steven
Miller, and others who have defamed innocent people should also be tied up in
legal knots, afraid to say anything menacing about a Trump critic for fear of
spending countless hours in depositions explaining their rancid social media
posts and forced to cough up their emails in discovery. They may even end up
broke, like Rudy Giuliani, which would be a blessing. I’m usually against libel
suits because they chill speech, but a festival of lawsuits brought by Paul
Pelosi, Anthony Fauci and others savaged by Trump and his MAGA hit men might be
the least bad way to get through the next four years. At a minimum, it could
curb the ability of these guys to throw their weight around.
You know how Democrats are sometimes
urged to be “more like Trump”? That’s normally bad advice. We shouldn’t lie,
cheat and defame. We shouldn’t be demagogues or dangers to the Constitution.
But we might need to imitate his maximalist legal strategy of just litigating
the hell out of everything to show we will not be cowed into submission. I’ve
heard there’s plenty of liberal money available to do it.
