Sullivan Under Siege

For six decades, New York Times Co. v. Sullivan has served as a bedrock of American press freedom, protecting journalists from retaliatory defamation lawsuits and allowing them to investigate the powerful without fear of financial ruin. But a well-funded, yearslong effort—backed by conservative activists, politicians, and some of the world’s wealthiest individuals—is now threatening to dismantle those protections.

In "Murder the Truth," a new book out Tuesday, The New York Times' David Enrich traced the origins of this campaign and the forces driving it. What began as a fringe legal theory has gained traction at the highest levels of power, with Supreme Court Justices Clarence Thomas and Neil Gorsuch arguing for Sullivan to be reconsidered. Figures like Donald Trump have seized on this effort, weaponizing defamation lawsuits to intimidate and silence journalists.

I spoke with Enrich about the roots of this movement, how misinformation is being used as a pretext to erode press protections, and what journalism could look like if Sullivan falls. Our conversation, lightly edited for style, is below.

You write about the growing conservative legal movement to overturn Sullivan. What changed in recent years to make this effort gain momentum?

The simplest answer is Donald Trump. His ever-escalating war on the media has inspired waves of legal attacks against journalists and news outlets all over the country. There’s one thing standing in the way of those efforts becoming even more successful: Supreme Court precedents like Sullivan. Hence the campaign to kill them.

Justice Clarence Thomas has been vocal about wanting to revisit Sullivan, and Justice Neil Gorsuch has echoed concerns about its modern application. How significant do you think their dissents are in shaping the future of defamation law?

Very significant. For the first time in decades, I think there’s a decent chance that the Supreme Court will consider narrowing Sullivan, if not overturning it outright. In the meantime, Thomas and Gorsuch’s calls to revisit the precedent have led many other judges to do so, too. And the uncertainty about Sullivan’s longevity has probably emboldened more public figures to sue or threaten journalists whose coverage they don’t like.

You detail how misinformation on social media is being used as justification to weaken press protections. What are the risks of conflating online disinformation with traditional media reporting in legal debates?

The two have little to do with each other, yet some conservative activists and judges are conflating them in order to make it seem like there is an urgent need to chip away at freedom-of-the-press protections. Making it easier for public figures to win defamation lawsuits is unlikely to stanch the flow of disinformation on social media. But it will make it easier for politicians, big companies and other powerful people to muzzle journalists who investigate them.

The involvement of figures like Donald Trump, Sarah Palin, and Peter Thiel suggests that the push to change defamation laws is as much about politics as it is about legal principles. How much of this movement do you see as a direct attack on the media versus a genuine legal debate?

I think some of this reflects a genuine debate about the balance between the First Amendment and people’s rights to protect their reputations. But you’re right that a lot of this is simply driven by right-wing figures who have a strong interest in weakening and delegitimizing the news media. Why? Because a strong and independent media will refute lies, distortions and conspiracy theories, especially when they’re coming from people in positions of power.

The case of Hulk Hogan’s lawsuit against Gawker—secretly funded by Thiel—was a major turning point in using litigation as a weapon against the press. Do you believe the right sees it as its new blueprint to wage war on the press?

Absolutely. Thiel’s years-long campaign against Gawker—of which the Hulk Hogan lawsuit was just one prong—sent a clear message that if you have money and time, you can destroy a media outlet. There’s a scene in my book where I describe how Trump reacted to the Gawker verdict, and he was far from the only one on the right who quickly recognized the potential of this new mode of attack.

Your book describes how Sullivan was crucial in allowing investigative journalism to flourish, leading to landmark reporting on Vietnam, Watergate, and corporate malfeasance. What would American journalism look like if Sullivan were overturned or weakened?

It would become much harder to expose wrongdoing by powerful people, companies, etc., because you could face ruinous litigation if you make an innocent error. Lawsuits would become more common, and legal threats would become more potent. The biggest impact would be on smaller outlets and independent journalists, who are less likely to be able to afford protracted legal fights. My book tells stories of journalists and news organizations already buckling under the weight of actual or threatened lawsuits. That trend will rapidly accelerate if Sullivan is overturned or weakened.

Looking ahead, do you think there’s a path to strengthening First Amendment protections in the current political climate, or do you expect more efforts to restrict free speech and press freedoms?

I expect more efforts to restrict press freedoms. The Trump administration is already doing what it can on this front, and my strong hunch is that it’s just getting started. That said, one glimmer of hope is that influential right-wing media figures will recognize that they, too, would suffer without Sullivan. In Florida, for example, an outcry from conservative talk-radio broadcasters doomed Ron DeSantis’ efforts to make it easier to sue the media. Maybe that will repeat on a national stage.

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