Truth In Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts

David E. McCraw, “Truth In Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts,” All Points Books, 2019, 276 pp.

It is a bit surprising that during the Super Bowl game the Washington Post found it necessary to employ Tom Hanks to say: “Knowing empowers us, knowing helps us decide, knowing keeps us free.”  Really…has the media felt so beleaguered that this ad was deemed necessary?  I mean: does anyone really believe the Washington Post, NYT, and WSJ are enemies of the people?  However, "Fake news" as an asinine epithet has power because it is both thoughtless and memorable as well as a debate stopper. When uttered with a contemptuous smirk, it’s the equivalent of “shut up!”

“Today, the threats to the press—the mainstream media that remains democracy’s best hope of delivering the truth and checking the inevitable overreach of the powerful—are different than 20 or so years ago: there really is a proliferation of fake news and disinformation on social media as well as in White House communications.  We have an administration that devotes time to delegitimize a free press as well as expanding government surveillance programs that threaten reporters’ ability to have sources.  Then there is the failure of the law to provide meaningful protection to confidential sources.   We now have a fractured media environment that has created two realities, a red reality and a blue reality, Fox and Breitbart over there, The Times and The Post over here, a divergence that makes sensible democracy regularly impossible.  And in the background a 16-year technological revolution that has disrupted the economic model that supported journalism.”  If you are like me and believe a free and responsible media is essential to our democracy, you may conclude we are in deep doo-doo.  I find it impossible today to believe the First Amendment can find a new life to again be what it was to civil rights and Vietnam and Watergate without more support from American citizens.

The vast array of sources for “news” has become overwhelming since their adoption of online outlets.  The media spectrum of quality is wide; some follow traditional journalist guidelines, others, probably most, not.    The impact of this is not all bad, it is driving thoughtful people to credible sources for their news.  For instance, I now get the WSJ, NYT, and Wash. Post, online so I can get credible news.  However, I believe media organizations need to have published ethical guidelines and live by them to continue to prevail in court.  A distinction between credible and not-credible news organizations needs to be made.

In this new book, “Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts,” the New York Times deputy general counsel David E. McCraw  addresses this state of affairs as he takes us behind the scenes of the venerable New York Times.

My Notes:

Pg. 13: New York Times Co. v. Sullivan, 1964, was a landmark United States Supreme Court case that established the actual malice standard that must be met for press reports about public officials to be considered libel. The decision defended free reporting of the civil rights campaigns in the southern United States.  It is one of the key decisions supporting the freedom of the press.  The actual malice standard requires that a plaintiff alleging defamation who is a public official or public figure prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity.  This decision was a 9-0 smackdown of plaintiffs who saw libel suits as a legal extortion racket to be used to silence publishers. 

Pg. 52f:  Landmark Communications v. Virginia, (1978), was a United States Supreme Court case that reversed a lower court's conviction of the publisher of Norfolk's The Virginian-Pilot for illegal disclosure of confidential proceedings before the Judicial Inquiry and Review Commission about a judge's misconduct.  Over the next 20 years, the Court kept coming back and driving home again Landmark’s core principle: governments were free to pass laws making it a crime to reveal certain kinds of information—the names of juvenile offenders, the identities of rape victims, the wiretapped contents of a phone call—but none of these laws could get over the high wall that was the First Amendment and be used to penalize journalists when the information was in the public interest and the journalists had done nothing wrong to get it. That was true even if the reporters’ sources had themselves engaged in lawbreaking to get the information. 

Pg. 50:  Donald Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for 18 years, records obtained by the NYT show.

Pg. 81:  The newspaper industry over the past two decades has been devastated by fundamental changes in how companies advertise and where readers go to find news.  Between 2000 and 2015, print newspaper advertising revenue fell from $67 billion to less than $20 billion.  Over a decade, more than 100,000 jobs in magazines and newspapers had disappeared. 

In 2011, the NYT had defied the experts who said that a paywall that required readers to pay for content would not work.  In 2016, nearly 70 percent of its revenue still came from the print edition’s subscriptions and advertising.  With Trump’s election new subscriptions, print and digital, had upward trends four times better than normal.  In the first quarter of 2017, the Times had a net gain of more than 300,000 digital subscribers, the biggest jump in any quarter since it had implemented the online paywall in 2011.  The paper had grown to more than three million subscribers, online and in print.  Every time Trump criticized the paper, subscriptions went up.

Pg. 120f:  For much of the past half-century, a balance had been struck between the traditional media and the government.  News organizations tried to make informed decisions about what to publish, weighing the risks to the nation and the benefits to the public, and the government held back from tracking down and prosecuting leakers except in the rarest of cases.  However, Obama decided there needed to be less discretion and more prosecution.  Maybe the change was driven by the fear and realization that the purveyors of news were no longer just the NYT, and The Washington Post and the major TV networks but also rogue organizations like WikiLeaks that did not share traditional journalistic ethical standards.  (Or Fox News).

Pg. 122:  Federal law provides very little protection to journalists who refuse to divulge sources when subpoenaed.  If they refuse to testify, they are not charged with a crime but are held in contempt, allowing the court to send them to jail as a way to pressure them to change their minds.

Pg. 156:  It was not a good sign that public outrage was almost nonexistent over Trump’s threat to use the power of the federal government to punish news organizations that failed to fall in line behind him.  He suggested that NBC’s broadcast licenses should be pulled, that The Washington Post should register as a lobbyist because it was owned by Amazon founder Jeff Bezos, and that the Justice Department should refuse to approve a merger sought by CNN’s parent, Time Warner—as if the federal government were just an apparatus to address the president’s personal grievances.

Pg. 164f:  Facebook revealed that content generated by Russian agents reached 126 million users on Facebook alone.  The Russians also managed to post more than 131,000 messages on Twitter and 1,000 YouTube videos. Meanwhile, the other fake news problem continued unabated: the president’s ‘fake news’ label about anything he did not agree with or in any way criticized him.

Pg. 172:  In 2010 Congress passed its most significant law related to libel.  It was called the SPEECH Act, and it was designed to protect US publishers.  Russians and Saudi’s began suing publishers, not in the US, but in their respective countries.  The SPEECH Act barred US courts from enforcing judgments won by libel plaintiffs abroad if those plaintiffs would have lost the same case brought in the US.

Pg. 174:  In the Wallstreet Journal on Feb. 16, 2017:  “US intelligence officials have withheld sensitive intelligence from President Donald Trump because they are concerned it would be leaked or compromised according to current and former officials familiar with the matter.”

Pg. 185f:  June 23, 2010:  WikiLeaks released 500,000 reports on the US military mission in Afghanistan and Iraq, and another 250,000 diplomatic cables from the State Department.  Editors of The Guardian in London had enticed the founder of WikiLeaks, Julian Assange, to share the materials with The Times as well as The Guardian and Der Spiegel, the idea being that spreading the documents across three mainstream news organizations would magnify the force of the disclosure.  Having a US publisher involved, with the protections of the Pentagon Papers ruling, made it less likely that there would be a court order that would effectively halt publication. (Of course, this ignores that these were not leaks; these were documents Russian hackers had stolen and given to WikiLeaks).

Pg. 188:  2013 Edward Snowden discloses that the National Security Agency has been surveilling American communications.  Snowden was granted asylum in Russia where he still lives.

Pg. 198f:  Bill O’Reilly had paid some $45 million to settle six separate claims of sexual abuse, $32 million of it to one person. Between the O’Reilly case and Harvey Weinstein, the #MeToo movement was born, exposing the sexual misconduct of men in power who harassed, mauled, and assaulted their colleagues, students, and employees.  The stories quickly went international—France India, Italy, Japan, and England.

Pg. 217:  The Freedom of Information Act (FOIA), 1966, is a federal freedom of information law that requires the full or partial disclosure of previously unreleased information and documents controlled by the United States government upon request.

Pg. 237:  The economic downturn in the newspaper industry had blown a hole in international coverage.  Most large-city American newspapers have shuttered their foreign bureaus and retreated to their home bases, leaving the increasingly perilous business of covering the world from an American perspective to a handful of big players like the AP, the WSJ, The Washington Post, and the NYT.