Fighting for Truth: Defending the First Amendment on the Front Line

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David McCraw, deputy general counsel for The New York Times, discusses his new book on the challenge of maintaining First Amendment rights and the age of fake news.

American media organizations have had to defend themselves against accusations of libel and to fight for the freedom granted by the First Amendment since the origins of the nation, but the war against the press has become particularly robust in recent years. As deputy general counsel for The New York Times, David McCraw has been on the front lines of many of those battles. In 2016, lawyers for then-candidate Donald J. Trump demanded a retraction for a story the Times published about two women who accused him of touching them inappropriately. McCraw’s scathing response went viral, making him a symbol in the ongoing fight. McCraw’s new book, Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts, shares some of the thinking around the legal issues he’s worked on since joining the Times in 2002 and gives readers a peek into the careful decision-making that happens in newsrooms every day. McCraw spoke with the host of the Knowledge@Wharton radio show on SiriusXM about why an independent press is more important than ever. (Listen to the podcast at the top of this page.)

An edited transcript of the conversation follows.

Knowledge@Wharton: Can you describe what it’s been like fighting for freedom of the press and battling against libel for the last two years?

David McCraw: It’s taken on many, many different flavors. If you look at the attacks on the press, we’ve seen the president turn press conferences into reality TV where we’re going to vote somebody off the island. And we’ve seen a ramp-up of leak investigations that actually started during the Obama administration but has continued. We’ve heard the statements about changing the laws of libel. But to me, the biggest point is this constant refrain of fake news, enemy of the people, stain on society, and similar sorts of attacks. It’s really a fight for the hearts and minds of American voters, American citizens.

There was a poll that came out while I was writing the book that showed 26% of the people who answered that poll thought the president should have the power to close press organizations that misbehave. That is very worrisome.

Knowledge@Wharton: How has all of this changed the work in the newsroom? I would think it has galvanized reporters in a lot of newsrooms, including The New York Times.

“I feel that in my role as a lawyer for the Times, one of the things I can do at a time like this is be out in front of this issue, talking about the importance of the First Amendment.”

McCraw: That’s right. There has been an amazing resilience among the American press corps, and I’ve certainly seen it in The New York Times. The point I was making earlier is that much of this doesn’t have to do with the law, per se. It’s not really that we’re seeing a lot of libel suits suddenly spike up. We are seeing some attacks on sources in an attempt to pursue leak investigations. That has a chilling effect.

But much of it is really about speaking out at this point. I feel that in my role as a lawyer for the Times, one of the things I can do at a time like this is be out in front of this issue, talking about the importance of the First Amendment. Our publisher has done the same thing. Our publisher, A.G. Sulzberger, has met with President Trump on two occasions and raised these very issues.

The concern is both that there’s going to be a delegitimizing of the press, that there’s an attempt to dismiss the press, not because of any particular error or because there’s a fact wrong, but just to dismiss them as not being credible. And encouraging people to take out their anger on the press, which is also dangerous.

Knowledge@Wharton: There is more reporting than ever before from a variety of sources, both traditional news media and blogs.

McCraw: That’s right. When I hear people say, “We don’t know about this policy or that policy,” or “We didn’t hear about that,” it is rarely the case. It is available someplace. People have to work at it sometimes to get it. One of the concerns I have is that, at a time like this, we really have to be questioners and making discerning judgments about what we’re reading. I really wanted in this book not to go to some abstract First Amendment theory. There are a lot of really good books for lawyers on that. I wanted this to be a book for the general reader. I wanted to try to explain how the First Amendment works day by day, how it affects the way we do our work, the way it empowers the way we do our work at the Times. And I thought the best way to tell that story was to use real things that had happened over about an 18-month period.

Knowledge@Wharton: Can you take us inside of that process?

McCraw: Very early in the book, I tell the story of how we came to publish a very important story from the campaign in October 2016 about Donald Trump’s taxes. We had gotten onto that story because somebody had anonymously sent three pages from Donald Trump’s tax returns from 1995.

I was called by the reporter that received it shortly after she got it. I was involved in that story as we went forward. I was absolutely convinced, still am convinced today, that the law protects us in publishing information that’s truthful, that we have gotten without engaging in any wrongdoing. It was just sent to us, and it’s in the public interest. This story checked all those boxes. I was surprised to find out that right after we published the story, questions started being raised about whether the First Amendment really protects this. What was deeply concerning was those questions were being raised by journalists. That what I had thought was something that was deeply embedded in the knowledge of everybody in the industry — that when we get information that’s true, we have a right to publish it. That’s what the First Amendment is about. It was not so.

I was at a Yankees game the day after the story ran. [Pulitzer-prize winning investigative reporter] Sue Craig called me and said, “Have you seen The Washington Post?” I hadn’t. I looked it up on my phone, and there was a column in the Post saying that we faced legal jeopardy by publishing it. It concerned me that we had done such a poor job in explaining the First Amendment that even those people in the industry were struggling with the idea of how the First Amendment worked.

“We have a real crisis in journalism, and it’s not the one the president if focused on. The real crisis in journalism is the failure of local news organizations.”

Knowledge@Wharton: In all of the news stories that deal with the president’s tax returns and his businesses, there have been lawyers that have written on his behalf and challenged the quality of the reporting. Is that fair?

Craw: I find it disturbing in the sense that all of those stories have been deeply researched, and the First Amendment is designed to have that very kind of reporting. When the Supreme Court decided Times v. Sullivan in 1964 and essentially revolutionized the law of libel, it was designed to prevent public officials and public figures from using the law to intimidate. That’s a lesson we need to keep learning.

Knowledge@Wharton: How does this fight for press freedom differ with smaller, local media outlets?

McCraw: We have a real crisis in journalism…. The real crisis in journalism is the failure of local news organizations. We have what the Columbia Journalism Review refers to as news deserts, places that have no effective news entity covering local government. And that is a deeply disturbing trend for democracy. What it means is that many of the news organizations that are left, many of the small newspapers in cities across this country, do not have the resources to stand up when they are threatened and when they are sued. That has had an enormous effect, I think, on the quality of the coverage, the depth of the coverage in those places.

The New York Times, The Washington Post, CNN — those big news organizations have to stand up because we have the resources to do so and we have to set an example. But it is deeply concerning that smaller news organizations, as well as bloggers, websites that are doing really good work covering local issues, face these threats and find themselves being threatened, crushed by demands that stories be retracted or the possibility they may get sued.

Knowledge@Wharton: Reporters in many cases will rely on something called the Freedom of Information Act, which also goes by FOIA. How important is the data that you’re able to obtain from those requests?

McCraw: It’s one of the topics I cover in the book. I tell the story of a case that we still have ongoing, which raises this strange and fascinating and only-in-our-times issue on whether the President had declassified a top-secret program by tweeting about it. FOIA has never been particularly effective, but it’s the one tool we have to get information from government. We believe very strongly in going after that information. Among the mainstream news organizations, the Times far and away has brought many more FOIA lawsuits, challenging the government’s denial of our reporters’ requests for information. We’re going to continue to do that.

Too often, especially as news organizations have struggled financially, reporters and others just walk away when their request is denied by a bureaucrat. I don’t think bureaucrats should be telling us how transparent government is. That’s why I want to go to court and have judges make these decisions, and we’ve been pushing those cases very hard. Could FOIA be improved? It really could. But it’s not going to be in the short run. For now, our role is to press agencies to give out information. And if they say no, go to court.

Knowledge@Wharton: How do you deal with information that may be leaked from a source? Because that obviously brings into question the credibility of both the information and the source.

McCraw: I find that leak investigations have a particular chilling effect on people inside government who feel the need to provide information. It gives a true picture of what’s going on even if their bosses don’t like it. I understand that there is some legitimate secrecy the government needs to maintain. But so many leak investigations are not about protecting national security, they are about silencing the press.

“The most important thing is to have people stand up for an independent press. They don’t have to love it. They don’t have to agree with everything.”

I write in the book about what I think is the most egregious example of the misguided approach to investigation. That’s the incident from last year, when the Times published an op-ed by someone called Anonymous. Inside the government, a senior official wrote about how there is a resistance within the [Trump] administration and that they’re doing the best they can to head off bad public policy. The President responded to that by asking the Justice Department to investigate. On what basis could that have possibly been a crime? Somebody anonymously bringing to the attention of the American public problems within the government. That’s one of the things we want to encourage. It is a very difficult topic. I understand that there are secrets and sometimes leakers will cross the line. But most of the pursuit of leakers is really about trying to control information so that the American public only hears what the government wants it to hear.

Knowledge@Wharton: We’re also in a time where we have learned about a number of allegations of sexual harassment against powerful people. How does the newspaper investigate and verify that information to make sure you’re doing a proper job in reporting it?

McCraw: I write in the book about the very beginning of the Times involvement with that. It was first writing about [former Fox News anchor] Bill O’Reilly, ultimately moving on to [Hollywood mogul] Harvey Weinstein. I think there was a huge breakthrough in how that reporting was done, thanks to the good work of the reporters on that story. It’s too often these stories had been he said/she said. That was kind of necessary because in most cases there were only two witnesses to these events. The thing that we really pressed for was to try to get beyond that, and I think we did that in a powerful way.

Legally, one of the things that I have long been pushing for, and thought our reporters in these stories did an incredible job of this, was can we find evidence that gives some corroboration to what’s being said? At the time this happened, did the person making these accusations talk to a friend, a family member, an agent, somebody in HR? Because knowing that there was a kind of contemporaneous report helps us feel sure that we got it right.

The other thing that was true in both the O’Reilly and the Weinstein stories was simply to get multiple accounts. That, again, gave us that sense that all of these accounts couldn’t be wrong. I think the power of that was shown by the ripple effect that goes across so many industries after that. I started getting calls from lawyers as we went forward with that whose clients were about to be the subject of a story. Over and over again, they shared the same thing: “My guy is not Harvey Weinstein.” It was as if the lawyers didn’t understand. Harvey Weinstein did not set the threshold. You didn’t have to be worse than Harvey Weinstein to be someone abusing power and certainly not worse than Harvey Weinstein to be a legitimate subject of news coverage.

Knowledge@Wharton: There is this concern of this general erosion of trust in the news media. How do we build that trust back up?

McCraw: There are a couple of things. One is, those of us in news organizations have to own that some of the problem we’ve brought on ourselves. I was doing a presentation with our executive editor, Dean Baquet, and he talked about how we had spent many years being a little aloof, a little distant from our readers. We needed to know them better. We needed to understand what they wanted and needed better. That arrogance occasionally popped up and sometimes hurt us.

“But that honest approach to journalism is ultimately the one thing we have to offer. And I’m going to be optimistic, I believe it’s going to work in the long term.”

But I think in the current environment there are a couple things that have to happen. Reporters need to continue to do exactly what they’re doing, and that is doing everything in their power to get the stories right. This is not a time when any kind of mistake is going to be overlooked. Journalism is an art, it’s not a science. Sometimes we’re going to get it wrong. If we do, we need to correct. But that honest approach to journalism is ultimately the one thing we have to offer. And I’m going to be optimistic, I believe it’s going to work in the long term.

The other thing is that someone who’s in my position needs to be speaking out about the needs for free press and the need for having an independent press. It’s also important, and I hope my book does this, that people understand how much work goes into journalism to get it right. Somebody from The Washington Post said after reading my book, “I don’t know whether this does anything about press law, but it really tells the story of how journalism gets done.” I think that’s an important story for people to hear.

Knowledge@Wharton: The letter you penned to President Trump’s lawyers has drawn much attention. When you wrote it, you had to come at it from both the perspective of a lawyer defending your client and a lawyer defending freedom of the press. Can you talk about that?

McCraw: That’s right. Most of the letters I receive from lawyers are good faith attempts to raise an issue with me and with the paper. Somebody’s been in the paper, his lawyer writes and says something is wrong in the article. That sort of letter I answer in the way I think is appropriate, which is we get on the phone, we exchange letters, we talk through it, I try and find out whether the Times has something wrong. And if we do, we’ll correct it.

I put in a different category the letters that come in threatening lawsuits from the Harvey Weinsteins, the Donald Trumps, the National Football Leagues of the world. They inevitably release their letters to the public. It is, in fact, a bit of political theater more than it is law. When I write, I have to do both things. I have to give a legal response, which explains what our response is going to be in court if they choose to sue. But I also want to make sure that we have stood up for our journalism and our right to publish, and do so in a public and pointed way if necessary.

Knowledge@Wharton: How strong is the First Amendment right now?

McCraw: I think the First Amendment remains strong. [Supreme Court Justice] Clarence Thomas has said that the court should go back and take another look at Times v. Sullivan, that it was wrongly decided. I don’t know any serious person in this country that’s running around saying, “Well, you know, the one problem that’s faced in this country is rich guys can’t win libel suits often enough.” So, I’m confident that the law is going to stand up. The most important thing is to have people stand up for an independent press. They don’t have to love it. They don’t have to agree with everything. We’re going to make mistakes, and they should call those to our attention. But to stand up for the concept of a free press is so important right now.

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