'A clear attempt to intimidate the press'

Some of President Trump’s lawsuits against media outlets have resulted in big settlements. Critics say that could have a chilling effect on journalists and embolden Trump to sue more.

RonNell Andersen Jones, law professor at the University of Utah. She writes on legal issues affecting the press and on the intersection between media and the courts. Former newspaper reporter and editor.

James C. Goodale, former Vice President and General Counsel for The New York Times. Author of "Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles."

Robert Corn-Revere, chief counsel with the Foundation for Individual Rights and Expression. He represents pollster J. Ann Selzer, who’s being sued by Trump.

Part I

DEBORAH BECKER: President Trump is often called a master of the media, although it's not a friendly relationship. In fact, quite the opposite. Trump has repeatedly disparaged the press using the same four words, enemy of the people.

(MONTAGE)

DONALD TRUMP: When you report fake news, which CNN does a lot, you are the enemy of the people.

Go ahead.

I consider Facebook to be an enemy of the people, along with a lot of the media.

I think Facebook has been very dishonest — I think Facebook has been very bad for our country, especially when it comes to elections.

The media, those people right there, they're corrupt. Largely corrupt. They are truly the enemy of the people. They are.

BECKER: To fight that perceived enemy, the president repeatedly has gone to court against the media, filing lawsuits alleging defamation, constitutional rights violations, election interference, and other things.

But since his election in November, two major lawsuits against Trump have been settled before ever going to court. And talks reportedly are underway to settle a third. The first settlement was from Disney, ABC News' parent company. In December, Disney agreed to pay Trump $15 million to settle a defamation lawsuit.

Last month, Meta, owner of Facebook and Instagram, and its owner Mark Zuckerberg, agreed to a $25 million settlement with the president. In that suit, Trump claimed the company violated his free speech rights when it suspended his accounts on the platforms after the January 6th attack.

This week, news broke that Paramount Global, the parent company of CBS News, and Trump, may be headed to settlement talks, and those are over the President's suit alleging that CBS engaged in election interference by editing an interview with Trump opponent, former vice president and Democratic presidential candidate Kamala Harris.

So what do these lawsuits and their settlements mean for free speech? And if things changed in an evolving media landscape. Today we're joined by RonNell Andersen Jones. She's a legal scholar and law professor at the University of Utah.

She frequently writes on legal issues affecting the press, media, and the courts. She joins us from Salt Lake City. Welcome to On Point.

RONNELL ANDERSEN JONES: Hi, nice to be here.

BECKER: So let's talk a little bit about these settlements and let's start with the one involving ABC News. Trump's suit claimed that he was defamed because George Stephanopoulos did not speak precisely when he said that Trump was convicted of rape when it wasn't legally rape.

Now, the legal definition of defamation here. Can you explain that a little bit and how this case may have proceeded, if in fact a settlement had not been reached?

ANDERSEN JONES: Trump sued both the anchor and ABC which is owned by Walt Disney for defamation last March after the anchor claimed during, in an interview with a representative, Nancy Mace.

And he said repeatedly that Trump had been found quote liable for rape, which was a technical misstatement of the verdicts in the lawsuits that E. Jean Carroll had brought and won against Trump. In that E. Jean Carroll case that the anchor was referencing, a Manhattan jury had found that Trump sexually abused and defamed Carroll, but it had stopped short of finding that he had committed rape, which she had accused him of doing.

And in the settlement ABC News agreed to pay that $15 million in this contribution to the Presidential Museum and Foundation. And to issue a statement of regret and to pay his attorney's fees. And the tension here is that, so as we look how this case might have played out, there were a lot of burdens that Trump bore if it had gone before a jury. And one of them is this sort of question about what the colloquial meaning of rape versus the legal meaning of rape might have been.

In speaking to that question, the Manhattan judge had really tussled with the complexity of this and said the distinction between what might be the common parlance or usage of that term and what the specifics of the New York state legal definition of it are might well have suggested that there wasn't that big of a distinction between them.

Now, all of this matters because, as we said, if the ABC case had moved ahead to trial, Trump would have borne the burden of proving both that what was said about him on the ABC program was defamatory, that is that people would think meaningfully less well of someone reputationally for being an adjudicated committer of rape rather than for being an adjudicated committer of some other form of sexual assault.

And he also would have borne the burden of proving that what was said about him was false. That there was some material difference between what was said and what the truth was. We can imagine the sorts of arguments that a news organization that was really leaning into the defense of these cases would make on both fronts, but Trump had also made clear that his legal team would be playing up the fact that the anchors on air statements were really not focused on colloquialisms, but really focused on the jury itself, right?

Saying things like, two separate juries have found him liable for rapes or focusing on the jury verdict. So we can see like where the tensions would have played out in the arguments, but still in an earlier era, I do think it's quite safe to say that the news outlet would have pushed hard on these fronts, and would have argued that the plaintiff had failed to meet these burdens and also would have leaned into some very significant First Amendment arguments that might well have prevailed.

BECKER: And you keep saying the anchor. We're talking about George Stephanopoulos here, right?

ANDERSEN JONES: Yes.

BECKER: Okay. I just want to make sure that, I'm not sure why you're just saying the anchor. But anyway, also what I'm curious about here is in terms of proving defamation. Wouldn't Trump or any defendant really in this case, have to prove, or plaintiff in this case, rather, have to prove that there was knowingly false information being presented in order to meet the standard here legally?

Can you explain what knowingly might mean here and how much would have to be proven for the media outlet to be found responsible, or the anchor.

ANDERSEN JONES: Yes. That's right. In these sorts of cases, the standard here, the constitutional standard here creates a very high bar for a showing a fault that any public official or any public figure.

So certainly, someone like Trump. who is bringing a suit, a defamation suit, is going to have to clear this. It emerges from a case called New York Times v. Sullivan where the court, the Supreme Court essentially said that we really value having robust, wide open public debate. We want journalists and ordinary people, all people in our society, to be able to talk freely about important matters of public concern and important, powerful people.

And we especially want to keep the powerful from being able to weaponize defamation suits, to shut down criticism or to stifle that debate. And so this means that when those people, those powerful people, bring suits, they cannot win just by showing that it's false, or just by showing that the news organization or the journalist was sloppy or reckless or negligent.

They have to show a standard called actual malice, which means knowing falsity or reckless disregard for the truth. The standard requires them to prove that the person and entity that broadcast this sort of knew that it was false and moved ahead with it anyway. It's a very difficult evidentiary standard to meet, and it's deliberately, it's in order to be protective of the free speech environment.

BECKER: And of course, we never had to get into those arguments because it was a settlement.

ANDERSEN JONES: That's right, which is a cause of some significant concern. It's troubling any time a news organization settles a suit that was plainly winnable, because it represents lost First Amendment ground that maybe didn't have to be ceded.

And this territory, of course, is not just given up for the individual media outlet in the particular case. It then feels like a loss to all other journalists who feel that ground sliding under their feet.

BECKER: Let's go to settlement number two, and that's with Meta. So it's a little bit different, right?

The company agreed to pay the president $25 million, and that settles a 2021 lawsuit that he filed over the suspension of his Facebook and Instagram accounts after the January 6th riot at the Capitol. I wonder if you can explain this case and how it would have been different from the ABC case.

ANDERSEN JONES: Yes, this is a social, an alleged social media censorship case, one of a series of episodes that sort of focused the national attention on the question of speech and expression on social media platforms. Trump had sued Meta, the parent company of Facebook, for suspending his account in the aftermath of January 6th.

Meta had said that it had done so because he was violating various policies, including policies against. And those were the internal terms and conditions that they had set for all users. And they said that he had acted contrary to them and so had been suspended. He said that it was censorship, that it was a violation of his First Amendment free speech rights, and brought a suit alleging this.

And for a long while, Meta had defended on those First Amendment grounds, had said that the claim was baseless, and it had said so because of some very strong First Amendment doctrine in that direction, that suggests that the First Amendment doctrine, as presently construed, at least, applies only to government.

It's only the government that can censor you or violate your First Amendment rights, not private parties like Meta. Now, Trump had argued that governmental officials had either asked or pressured or leaned on Meta to take the action that they had taken, and so that this should be enough to count for those purposes.

But Meta had this strong First Amendment argument that it was pressing on this front, and then after the election changed its mind. And settled for $25 million and ended the suit, so we didn't move forward to play out those arguments, those First Amendment arguments that otherwise would have been played out before the court.

BECKER: A little bit different, but settlement does the same exact thing. We don't get to hear the intricacies of this case and what legal arguments may have been made here, and how social media may or may not have been treated differently here. But just it's gone and there's $25 million being paid to the president.

ANDERSEN JONES: That's right. It's interesting that if you put those two cases together it seems that First Amendment claim, First Amendment cases that Trump has settled are now probably the primary contributors to his presidential library and museum.

Part II

BECKER: Today we're talking about lawsuits and legal settlements in cases that were brought by President Trump against media companies and the potential effects on free speech and this changing legal landscape. Joining us from Salt Lake City, Utah is RonNell Andersen Jones, and RonNell, before the break, we spoke about two cases where there were, in fact, settlements with President Trump in lawsuits that he had filed against media companies.

And there's a third that appears to be heading for settlement talks, and that involves CBS News. The talks apparently are with Paramount Global, the owner of CBS, about settling with the Trump administration, as well, Trump sued, seeking $10 billion in damages, alleging that the network committed election interference by editing parts of an interview with Trump opponent, former vice president and Democratic presidential candidate, Kamala Harris.

How unusual is this case from a legal standpoint, especially a media legal standpoint?

ANDERSEN JONES: It's super unusual, it's unique, to my knowledge, historically unprecedented as a civil lawsuit approach. Because it's rooted, as you said, in this new tactic of casting an editorial decision by the press as an act of consumer fraud, essentially, right?

In fact, Trump, the sort of standing that he said that he had in the suit was, like, as a consumer of a broadcast who had been deceived. It's still rooted in the same kinds of concerns about media bias or media truthfulness or falsity or disgruntlement with media coverage, as the other claims.

It's just coming through this new avenue. It emerged when Trump got upset with the editing of this 60 minutes interview with Kamala Harris. And he was invited to participate and declined. And she went on the interview and gave this lengthy answer about Benjamin Netanyahu. And, 20 seconds of the answer is aired in this preview on Face the Nation.

And then a different seven second part appears on 60 Minutes. And Trump argues in this suit that it was deceptively edited in order to interfere with the election. Basically, at base, he's arguing that the network had edited the answer to mask her incompetence as an act of partisan bias.

And actually, this ire that he has over the editing has manifested itself in at least two avenues. And one is this very unique private civil lawsuit, brought before this judge in Texas who has been quite amenable to Trump administration arguments in the past. And the other is through a governmental investigation launched by the Trump appointed head of the FCC, the Federal Communications Commission.

Which acquired and released to the public recently the full transcript of that 60 Minutes interview. CBS and 60 Minutes have argued that they did nothing wrong, right? That it's totally common practice for news organizations to do this sort of thing, to excerpt a full interview in either a news article or a TV broadcast.

That it's not about doctoring or deceiving, that it happens all the time for space and time and clarity. And that in any event, it's surely within the scope of the First Amendment's protection to make calls on these sorts of things. But the new FCC chair feels differently and has said that complaint could come up in the agency's review of this multi-billion-dollar merger that Paramount is hoping to make with another company.

And it appears on the theme that you're discussing, that executives at Paramount have maybe been pursuing this settlement in this civil lawsuit that media law folks think is winnable on First Amendment grounds, are willing to give up and settle in hopes of smoothing the path for that merger.

And so that's a sort of again, another example of a potentially winnable First Amendment argument being settled in the name of making headway in some other ways with the administration.

BECKER: Yeah, or making sure you avoid any kind of weaponization of federal bureaucracy as you have this big business deal, CBS owner Paramount seeking approval to merge with Skydance Media as you have this before the FCC right?

And so you want to make sure that is one avenue that you're at least considering when you do something like this. We'll talk more about balancing those business interests here with what you're doing to make sure that editorial independence is protected in a moment.

Because I want to bring in someone into this conversation who knows a thing or two about media law, James Goodale is the former vice president and general counsel for the New York Times. Thanks so much for being with us.

JAMES GOODALE: You're welcome.

BECKER: And you certainly have been doing this for quite some time. You've been responsible for four major cases with the New York Times, four major lawsuits involved in the New York Times.

You also wrote a book about this, "Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles." So remind us of what happened in the Pentagon papers and what really was decided in that case, in terms of media law going forward.

GOODALE: The Pentagon Papers case is a very simple case.

The government tried to stop the New York Times from publishing the Pentagon Papers. And we went to court. We said the government can't do that because of the First Amendment. And we won. In a nutshell, it was a form of censorship case. The censorship being requested in that case from a judge who would enter an order against the Times to stop it from publication.

Unlike these cases, it was a real case.

BECKER: Why are these not real cases?

GOODALE: I don't think that Trump really, in the ordinary course, brings real cases. He brings cases as a businessman. Conducts negotiations and conjures, that is to say, thinks up offbeat theories in order to get the judge into his camp initially.

But when you pull them apart, as RonNell has brilliantly done. There's no there, as a famous Bostonian once said.

BECKER: However, there are big companies willing to pay millions, perhaps tens of millions of dollars to dismiss these not so real cases. So that would suggest there's some legitimacy there somewhere, right?

GOODALE: Let's say there's enough legitimacy for the case to be filed. And for the court to listen to it. But when you pull it apart, the cases are not legitimate. And the fact that these companies want to pay a lot of bucks in this particular environment only tells me is they, excuse me for saying so, want to pay off Trump.

Look where the money's going, into the presidential libraries. They just want to get on his good side. A million here, a million there means nothing to them, particularly.

BECKER: I wonder though, the Pentagon Papers was decided more than 50 years ago, right? The media world has changed.

We're talking about huge conglomerates, really business conglomerates here that are very different from an independently owned newspaper, right? These are very wealthy businesses. And so if they have other business that they are considering, how should they balance this small news operation, this CBS news operation, that's one tiny part of its business, when it knows it's going to have to go before the same officials suing it and seek permission for it to increase its economic output.

How do you balance that and is it different now than it was, perhaps decades ago, because we have these different media interests involved.

GOODALE: I take your point that we are talking about Paramount, a company that owns CBS, and obviously from its name is a great movie company and has a whole lot of other businesses.

But New York Times, at the time of the Pentagon Papers case, had just completed the largest diversification in its history. And was in fact a conglomerate at the time the Pentagon Papers case was brought against it. I'm not gainsaying, however, that the executives of Paramount do not have a very difficult situation in front of them.

Because they want to or the parties want this deal to go through, and it's got to go through the FCC, and they've got a lot of trouble at the FCC. So I would agree that it's not an easy question. I'm not so sure it's that different, as for the reasons I've stated. Listen, my bottom line is I'm a big First Amendment type.

If you can't stand the heat, get out of the kitchen. Sell these First Amendment companies and go invest in tubes or autos or something else. But if you're gonna be in the First Amendment business, you gotta stand up and fight. Because the First Amendment is what gives you the creativity that brings in the bucks.

So if you're not going to fight for your creativity, you're not going to have a company left. And that applies not only to newspapers, but obviously movies, too. And let me say also, finally, that if you don't fight, what Trump is going to do, he's going to go from media company to media company with quasi true cases and pick up money. He's just on a bribery. Frankly, it's a bribery trail. And I say that from some experience here in New York City, which is exactly what he did before he ran for president. He'd sue everybody who was in the media business and drive them nuts, and the cases would finally go away.

But guess what? It cost the media company some bucks to defend it.

BECKER: But there aren't a lot of big businesses that want to buy these First Amendment businesses, as you say. The news industry is struggling, and for many, the only way they can survive is if they are backed by some huge conglomerate.

My question really is, are we in a whole different media world here? And how do we navigate that? It can't just be sell off these independent editorial operations that might be giving you a headache before regulators. Where do we find the middle ground?

GOODALE: I'm not sure there is a middle ground. I think if you're going to be in this business, if you're going to be a Bezos, or whatever his name is, and buy the Washington Post, hey, you're buying an entity for which you have to stand up and fight. And if that is going to have a deleterious impact upon the rest of your business, say, at Amazon, you should think that through before you buy the Washington Post. Because the Washington Post, part of the lure, is the trouble it creates. I'm not sure there's a middle ground.

I think that if, in fact, you are looking for additional companies to provide you with money to support something like the Washington Post. That's a decision you make, but you don't run away from it and pay off anybody who comes in and tries to sue you.

BECKER: We should say, you may be familiar with Donald Trump and New York, but you have been critical of other administrations, as well.

The Obama administration, you've written about Obama and his relationship with the press. Can you say just explain that, so folks get an understanding of where you are here?

GOODALE: Listen, I'm just a plain old First Amendment loving, journalist loving, publication loving individual. And I have high standards with respect to what I think the press should do.

I think the press should be a counter, a place where you can go to get through information, the facts, and if appropriate, a different point of view than that which is being expressed by the government. The press exists in some large part, not entirely, but in some large part, to sit as the government's watchdog.

And it may be a president who is milder than Trump, say, for example, Obama, but Obama and presidents like him have their own agenda, and that agenda may or may not be the agenda of the press. To the extent it is the latter, the press should be there to criticize. I think that's what the role of the press has been forever in this country.

And I believe that once the press starts making settlements, where it has no real basis, in my humble opinion, for making them, it undercuts that whole role, and more importantly, I think it encourages someone like Trump to keep on doing it.

BECKER: But just, I'd like you to remind our listeners, who may not know, of what were some of the things that you were concerned about during the Obama administration when it came to the media and its relationship with the Obama White House?

GOODALE: I can't remember all of 'em, but particularly I did not like their stance on the Espionage Act. Now, that's a technical term, which is not meant to turn off your audience, but to remind them that the government tried to stop the New York Times from publishing the Pentagon Papers under an old 1970 Act called the Espionage Act.

All of that came to life with respect to a gentleman named Assange, who was leaking tons of information by a soldier who was in the intelligence corps. It was my view that the Obama administration should have stood up from the beginning and deep-sixed the whole defense of this case. And done it in a loud way that deterred everyone else who came in as a successor from doing the same thing.

Secondly, I was not particularly impressed with respect to the Obama position in protecting reporters and protecting their sources. I would have liked to have seen a much stronger position by Obama on that. I'm not going to be in favor, probably of any administration 100%, because as a representative of the press, I don't think I should be.

BECKER: Preaching to the choir here. So in terms of litigation, and we don't have much time here, and comparing other administrations, you, of course, are very well known for the Nixon administration. Can you tell me in the last minute we have before we have to go to a break if you see similarities between the Nixon administration and the Trump administration?

GOODALE: I think the two situations are identical.

I think we've forgotten how terrible Nixon was to the press and how much he picked on it. And he brought the Pentagon Papers case. He brought cases against reporters. And I think we're just seeing a replay of the Nixon reel, the Nixon film, that the two are identical. The press stood up and fought Nixon. I'm urging the press to stand up and fight Trump.

Part III

BECKER: Today we're talking about President Trump's lawsuits against various media outlets. We mentioned some of the recent legal settlements and potential settlements between the President and the press, but there are other cases pending. One is against pollster. J. Ann Selzer.

President Trump has sued over a poll Selzer released just before last year's presidential election, suggesting that Trump opponent, former vice president Kamala Harris was ahead in Iowa. Trump won the state and then sued Selzer, claiming the poll was tantamount to fake news and violated Iowa's consumer protection laws by deceiving voters.

Trump is also suing the Des Moines Register and its parent company, Gannett, for publishing the poll. Selzer's attorney is Robert Corn-Revere, the Chief Counsel with the Foundation for Individual Rights and Expression. Corn-Revere and the Foundation filed a motion to dismiss last week, questioning the legal basis to even file the case.

ROBERT CORN-REVERE: There is no recognized claim in American law for, quote, false news, and trying to bring one is in direct conflict with the First Amendment to the United States Constitution. And that trying to shoehorn that kind of claim into a state consumer fraud law is simply trying to work your way around the First Amendment.

BECKER: Corn-Revere says the law that has developed around the First Amendment contains protections and places the burden of proof on the plaintiff. That's why Trump's legal team had to pursue the case under a consumer protection law and not an outright free speech challenge.

CORN-REVERE: Because of those very strong protections, litigants from time to time will try and find ways to avoid having to answer those very strong constitutional protections.

And so they'll look for various ways to say what they're doing is not regulating speech and is not in conflict with the First Amendment, and this is just one of those attempts to bypass the law.

BECKER: And this case, Corn-Revere says, could have widespread ramifications.

CORN-REVERE: I think it represents a clear attempt to intimidate the press.

This is something that has been a theme during his political career. And then even before Mr. Trump transitioned from simply doing business to being in the political world, he has often tried to use litigation to intimidate. Even when there are no valid claims to be made, and that's what's been happening here both with the current lawsuit against J. Ann Selzer and against the Des Moines Register and Gannett, but also against other media organizations as well.

BECKER: That's Bob Corn-Revere, Chief Counsel with the Foundation for Individual Rights and Expression. He's currently defending Iowa pollster J. Ann Selzer in a lawsuit brought by President Trump. Joining us to talk about media lawsuits and the president is RonNell Andersen Jones, law professor at the University of Utah.

And Ronell, I wonder what you make of this lawsuit against pollster J. Ann Selzer and the Des Moines Register and Gannett, and how this is taking an even different legal approach.

ANDERSEN JONES: Yeah, it is a really interesting tact to take, to suggest that engaging in a poll and publishing the results that were found from that poll somehow amount to consumer fraud, but do not amount to speech. One thing that I think is likely to be argued in this case that I imagine that the attorneys in this case are galvanizing arguments about, is that the very nature of both news and polls really is that they are imperfect but incredibly valuable tools. And we want them to have space to make some errors, but keep trying.

And I think the piece that has been troubling to folks in the media law space about this suit, similar really to the CBS suit that we were discussing earlier, is that it feels troubling because although it's not rooted in defamation, it partakes of some of the same concerns about press freedom and the vibrancy of public discourse that the court cared a lot about in that New York Times v. Sullivan case right?

All the same values are essentially at stake. This notion that we shouldn't have levers of civil liability available to punish news coverage, or analysis of political campaigns, that this kind of talk about important matters of public concern occupies this highest rung of the hierarchy of First Amendment values, that we leave some space for there to be some inevitable falsity that makes its way about those public discussions, in order not to have a chilling effect and to be able to make sure that entities don't self-censor.

I expect that all of those same values are gonna be mapped on to this context in these kinds of arguments. But it's new territory. It is a new avenue where we're going to have to rely on the courts to connect those dots.

BECKER: And it's not just this case that's pending. There are other cases pending as well.

There's a case against Bob Woodward, investigative reporter Bob Woodward, and his publisher, Simon & Schuster, regarding audio interviews that were done for his book about President Trump. Can you, do you know this case well enough to outline the legal arguments there? And are these just a bunch of different cases to silence people, do you think, or explain the broader theme after you tell us the sort of specific legal fight that we're hearing in the case with Bob Woodward?

ANDERSEN JONES: Yes, a lot of these are, they're all, there's sort of two camps. There's these consumer protection kinds of suits that we've just described.

And then there are straight up defamation suits. Those are suits that are essentially rooted in some form of argument about harm to reputation, right? A falsehood that harmed a reputation. And the balance that we've struck on these harm to reputation questions is uniformly in the direction of free speech.

We make sure that knowing falsehoods are punishable in that context, but we put big First Amendment barriers against doing it otherwise, and I just, I think the combination of these things, you're right that it's a hard, complicated moment, like what we're seeing here is this confluence of political, economic and social threats against the press happening all at once.

And on the one hand, as we've just been discussing in the last segment, press-president tensions are as old as time. But we also have lots of observers and scholars noting that few presidents have ever been as overt about openly having a goal of using as many levers of consequence as possible to bring about a reckoning to segments of the press that he disapproves of.

In the run up to the election, the publisher of the New York Times published in the competitor newspaper, the Washington Post, this op-ed that kind of openly articulated the sets of fears that key players in a second Trump administration bring about in the press freedom space, not just normalizing the harassment of journalists, but a string of tactics that could result in this fire hose of press freedom concerns.

And way up at the top of the list was a concern about exploiting the courts through a flood of suits on various civil claims that would be expensive to defend, or aimed at embarrassing or discrediting legitimate press entities, despite ultimately down the line being found to be meritless or constitutionally unsound.

And then if you take that and you layer on top of that the concern that they also had about weaponizing regulatory authority, the tax code and the antitrust law and the Federal Communications Commission and so forth, to punish dissenting newsgathers, and then layer on that a concern that they have about encouraging loyalists in the private sector to mirror or amplify those tactics.

And I think most importantly, we ought to layer on that, that these concerns are compounded by diminished public trust in the press, which means that juries in at least some portions of the country simply would not be as amenable to a press freedom argument today as they would have been a decade ago.

I think all of this amplifies the risk of even baseless suits against the press, and I think it's one reason why the press over the last several years maybe not paid as much attention as it should have the sort of vilification of them, that has been dismissed as mere bluster, right?

Fake news or enemy of the people. Those things might now be seen by a lot of folks in the press who maybe just rolled their eyes or even wore it as a badge of honor. Like now, in hindsight, we might see that it could have been setting the table for wider, more concrete set of actions. And all of the collections of these cases, individually, they might not add up to that much.

And most of them are in individual cases in which the First Amendment arguments for the individual journalist or the individual news organization is quite strong, but whether we will ever get to a stage at which those arguments are asserted remains a much more open question than it was, say, five or six years ago.

BECKER: And is there even another layer here with the Supreme Court? In the ABC case there was a statement saying that they were concerned the president could appeal, right? If the Supreme Court takes it up, there are two justices who've indicated a possible overturning of the Sullivan precedent that [James] Goodale mentioned earlier in the show.

So it, what do we know about the Supreme Court here and how it might also view some of these cases? Is that a concern for media organizations?

ANDERSEN JONES: Yes. I do think that's looming in the background, at least in a way that it wasn't a decade ago. In 2015, then candidate Donald Trump on the campaign trail suggested that it would be important to him to, in his words, open up libel law by which he meant change this calculus that New York Times v. Sullivan had established, and make it easier for folks like him, public officials and public figures to bring these suits, lessen these false standards.

Early on in the Trump administration, we got one vote for that from the Supreme Court. Clarence Thomas, a justice of the court, indicated in a dissent from denial of certiorari, so in a case that they didn't take, he wrote separately to say, we should have taken this case, and we should have taken it and used it as a vehicle to rethink these standards, to lessen them.

His reasons are, Justice Thomas is an originalist, a staunch originalist, and so he thinks that we should think about the First Amendment exclusively through the lens of what it meant to those who crafted it in the late 1700s. And so he had an originalist reason. I'm thinking this was the right route.

Since then, he's been joined by Justice Gorsuch on the Supreme Court, who has said that he thinks it should be reconsidered because we live in an age of disinformation and a new media landscape, and that there are sort of viral lies, and that making it easier to bring defamation suits might be a good idea, because it would help us to counter some of this nastiness in the viral lie environment.

This makes folks in the media law space incredibly nervous. Not least because Sullivan is an important tool that they rely upon in these weaponization contexts that are very actually quite similar to the context of New York Times v. Sullivan itself.

That case emerged in the civil rights movement at a moment when libel suits were being brought over very trivial errors in the New York Times, in an effort to scare the New York Times out of the Deep South, to stop covering the kinds of things that public officials there were doing.

And the court was really responding to that moment. And now it has the chance potentially to rethink it, and there is at least some movement, we don't know how many justices, we've only had two of them chime in to say this, but I think you're right that there is some anxiety amongst the media law bar and that underlying anxiety may be at one of the many factors that are driving some of these settlements that we've seen recently.

BECKER: I also want to bring up another case because there are a couple of issues involved here, and this is President Trump's suit against the Pulitzer Board in 2022 for defamation. This was because of 2018 reporting by the Washington Post and the New York Times, for which the Pulitzer board awarded them for coverage of Russian interference in the 2016 election and alleged ties to the Trump campaign.

And this is what Trump said about this at a rally in 2022.

TRUMP: Think of it. They make up a story. It's all made up by them. And then they get Pulitzer Prizes, and they were wrong. And it's been, and even the Times and even the Washington Post now admit that it was wrong, it was fake, it was a phony deal.

They've admitted it! So they should turn back their Pulitzer Prizes, right? So let's see what the courts have to say.

BECKER: And of course, the Pulitzer board filed a motion requesting the judge put a hold on this suit until Trump's term expires but RonNell Andersen Jones, this case really raises some interesting issues.

First of all, it's the Pulitzer board here for defamation, because of awards given for reporting that the president doesn't like. And it also brings up the issue of state courts and protection in state courts, and really jurisdiction of state courts. And I'm wondering how those issues might be parsed out in this particular piece of litigation.

ANDERSEN JONES: Yeah. This suit basically just accuses the Pulitzer board of Trump saying you're defaming me in essence by continuing to honor these newspapers, the New York Times and the Washington Post, for their coverage of the Russian interference with the 2016 presidential election, continuing to do that harms my reputation, is defamatory to me.

And a state judge last year cleared the case, said that it could proceed toward trial. The latest set of arguments is that, in some respects, throwing back at President Trump some arguments that he himself had made in other legal suits, that to avoid constitutional conflicts, the court should stick a pin in the case, and wait until his term in office had completed, that it was a bad idea for state courts to be overseeing litigation that involved a sitting president.

Those are arguments that we have heard made in other settings by Trump himself, and the litigants here were suggesting that the same things should take place here. So it is an argument that Trump's lawyers have repeated, including in cases where he and his social media company are defendants.

And so I'm thinking about how those arguments will play out in cases in which he is a plaintiff, I think are going to be interesting to watch.