George welcome. Thanks for coming on a saturday morning in the summer. I think we have a great panel here on trump and the press and the First Amendment. Before we do anything else, i would like to introduce a wonderful panel. For coming out. To my immediate left is floyd abrams. He has been the preeminent First Amendment attorney in this country for the last 40 or so years, worked on the pentagon papers case for the New York Times in 1971. Has been in the Supreme Court for basically every major media or in his asian and high Appellate Courts since then. As a matter of disclosure, 43 years ago today, i was working about three offices down the hall from him as a summer associate, so we have known each other and being friends along time. To his immediate left is jim rutenberg, a media columnist of the New York Times. The times in the 2000s. Has been the City Hall Bureau chief in new york. Has covered the media and politics. And we are lied to have a real live journalist with the lawyers here today. Walsh, alsois david a journalist. David is with the sunday times in the u. K. He was voted Sports Writer of the year in ireland three times. His main claim to fame is he worked hard for years and thes and years on covering doping program of Lance Armstrong and his American Cycling Team and obviously was vindicated in the end when armstrong conceded. He will talk about his coverage of armstrong and lawsuits by armstrong as we discuss the matter this morning. To his left is Laura Prather from austin, texas. Laura is an outstanding litigator, but her most noteworthy accomplishment is she was instrumental in getting the to instituteture a retraction statute and a reporter shield law, all media protective matters, through the Texas Legislature the last few years. To her left is tom clare, with clare and lock in alexandria, virginia. Tom is this is random seeding , but he is over on the left, which may be should be the right. I do not know. But he is one of the countrys leading libel lawyers pla intiffs libel lawyers, most recently representing a ccessful libel suit against Rolling Stone magazine. And i am george freeman, representing inside media counsel for the New York Times. I think you have materials that give further bios and also give more substance and so on on some of the matters we will eat talking about. I would like to start with our journalist, jim rutenberg. , reallyn one sense loves the media. He watches tv news incessantly. He has coverage, he has covers, and his office, when he some. Verboy and even made he seems to like engaging with reporters. At the same time, he blasts the press every day. He has called the press the enemy of the american people. How do you put those things together . Is it just is instinctive need to find enemies . Is it a clever political strategy . What is really going on . Jim i think our best thinking on this subject we try every day to get our heads around this, even now but we believe it is a mix of annex dictation of the new york media world that he became donald trump in should have shown him more deference. It angers him when it feels like he does not get deference prayer that said, it also has fueled his movement. His movement hates the press. It works to his advantage. And it plays well on twitter. And most importantly, when it comes to the strategy, obviously, if you create the impression that there is no such thing as a valid turn owes him, you can get away with doing things that perhaps you would not have if people believed in facts. George is it working, the strategy jim predicted . He said, i am president , and you are not. [laughter] it is working, but certainly, all of the polling data would indicate that, with his base, it was one of the things they found attractive, and it is one of the things they find attractive. So to that extent, it is working. Beyond that, i think, it is hard to phrase this. You could argue, at least, that it is working in the sense that there are so many insults directed at the press, that there is a day late denigration denigration of the press by the president , i would at, and, with some success, in allowing people who cts or thee the fa opinions offered by the press to politicaled as simply or, worse yet, fake. Fake enough, it will persuade a lot of people. And it has. George what is the cost of this . Is it a cost in democracy in our system or is it a political short run . Floyd it has been mixed. I think there has been a real cost. I am the language really try not to be hyperbolic a lot of the language is language ron perrone used to use in argentina about the press there. Success. Has some thatsures his followers anything they need which is critical is subject to dismissal. That is not all of the country. For now, it is not half the country. , the role, in effect of the press. The press, especially when it gets things right, is disbelieved, is viewed as a fake, partisan tool. Harm is done to democracy itself. Then, the press cannot effectively play its role of exposing government misconduct, letting the public know what is going on, and the like. Is persuaded that who leaked a document is more important than what the document says, everything changes. If that becomes the issue rather than discussing seriously what did we learn here, if we learned anything. What is the impact of it, what should we do about it . Significantan have antidemocratic results. George what is the view from across the pond . In a sense, the Trump Movement are parallel movements, but i do not get the sense the media is being bashed quite as much in the u. K. As here. What is the view from the u. K. About what is going on here . David i would not like to speak for everybody in the u. K. , because i am sure there is a diversity of views. What i take a different view on what has been happening in the u. S. I take my view from how i have reacted. Gone after the press, it has made me, as a journalist, more interested in the american press. The New York Times more and the last three months then i have the previous 10 years. Ie reason i have done this is feel there is a need now for credible voices, maybe later than ever before. Every time that donald trump about fake news, i want to read i respect,ose view giving me an interpretation of what is going on. , donald trumpway has been good for serious journalism, because he has made people realize what happens if we were all brainwashed into believing that everything supposedly independent voices are saying, what is independent wasnt independent . What kind of society would we have . I think people react against that thought. They kind of get off their backsides and they read and they want to find out what is going on. Happened that is what i believe what has happened the last six months has been a boon for serious journalism. And the New York Times has seen a surge in prescriptions is a testament to the fact that other people other than me have had this reaction. George we talked about the general cost to this. Settled aeek, abc libel case against it in south dakota for over 177 million. If true, the greatest libel result for a plaintiff after ever. Do you think that result, and case,settlement of the while the trial was going on is, in some way, a reflection of trumps attacks on the media and the influence that might have had with that jerry jury . Laura it could have. There were a lot of things that abc was going up against in that case, including being in a very unfavorable venue for them to you they were in the hometown of the plaintiffs corporate andquarters, with unfavorable venue, unfavorable judge. There were a lot of factors that went into that. In that instance, it is very likely, could have had your views less favorable to the press because of what they have been hearing from the president. George let me ask you this. Your job, in a sense, is to attack the press. Do you think the press bashing by the president is legitimate, deserved . Is it a good thing, a bad thing . From the different view you have professionally than other folks on this panel, how do you react to this . Tom i think the president s attack on the press is a blunt instrument. In theblunt and broad criticism, because there is good journalism, bad journalism, and there is a real harm done by journalism gone wrong. The uvaRolling Stone gang rape case is one. The president has tapped into something that is real in coming and predated him onto the National Scene and attacking the press as fake news. Perspectiverors and jurors and try cases in this matter. We always ask how many of you distrust the media . Prior most recent trial, to the president getting this jurorsn, 125 potential were in the room. 121 raised their hands yes in response to the question. That cuts all lines of political affiliation, all demographics, rich and poor, genders and ethnicities. There is something to that. Is he resident has done what the president has done is tapped into that distrust. And it cheapens think it cheapens the political discourse in the country, but we are doing a disservice not to look at what is underlying that distrust in the media. George what is underlying the distrust . For the most part, the media acts in good faith, makes mistakes like any other rational. The notion that they are upentionally making things is fictional, at least i think. Where does this distrust come from . we talk about the media your characterization is correct for a large swath of the professional press corps. But when you start getting into social media and bloggers, even online professional new sites that have a lower editorial standards, more partisan reporting, that is not true. Biasedl see slanted, coverage that has an impact on peoples livelihood. I think people take into account that whole spectrum when they view all of this. I think that is a big part of it. Mediaso mentioned the makes mistakes. That is certainly true. I think the press has not done itself any favors in the way that it handles when it does make a mistake. Instead of always doing the right thing, retracting the story, posting a real correction or apology, there is a to postng effort to try the smallest possible correction in the most selfinterested way possible, and then deny any possibility and liability for it. Tot unwillingness acknowledge a mistake resonates wrongly with people, certainly our clients. George what about the fact that even if we take what you said as true, which it may well be, the number of mistakes that are made in relation to the number of facts in a daily newspaper are infinitesimal. Less than 1 . There are tens of thousands of facts in a newspaper. There may be 10 corrections, 15 corrections. The rate of mistakes is diminished. Somehow, that seems to fall out of peoples analysis. Tom i think that is right but not all corrections are created equal. But when a reporter is investigating a story and has an idea about where the store is going to end, what the toclusion is they are going print on the front page of the newspaper or blog post and shapes the fax to that story, that is a different error. Some of those mistakes, ignoring information that does not fit that preconceived notion, can be harmful and damaging. We talk about the pink slime ca se. Everything said about it is correct, which is why abc felt compelled, felt the need to settle that case. The flipside of the coin is that factories had to shut down, business was lost, jobs were lost, and people lost their livelihood as a result of that mistake. George do you want to respond . Jim i do. Inould say there are jerks every industry, and we have them. Mistakes are made. Some are grudging with missed some are grudging with corrections. You do not win credit for correcting. People take corrections in use it to attack you in this environment. That, to me, the flipside on the journalistic argument, there is also a sustained campaign to undermine the press that is some several decades old. At least four or five. Its intention is to discredit us. Newsppens nightly on fox with the biggest cable news audience. It happens daily with rush limbaugh, with the largest radio audience. And the press we do not campaign back. People off,o piss sometimes. We are the messenger. That is not always the face it is want to see what news and they disagree with or it is bad news for the political side, what have you. We are kind of not in the business of being liked. The at, there is also fighte to do more to against it, but we are not politicians. In this legal context, of course us. Es will side against i wonder if todays environment will make that worse. I am curious what you think. I think there is an additional problem floyd i think there is an additional problem. It is technological. Everything is on the screen. Therefore, for so many people, it becomes the equivalent of Everything Else they read on that screen. Ofwe have the combination good journalism, bad journalism, no journalism at all. Just people talking and writing and complaining and libeling people and the like. You hear people say i read it on the internet. Everything is on the internet. I think it has had a significantly harmful impact on the reputation of everyone who participates in that process. All of ourcludes great newspapers, as well as the and tawdry ones nonnewspapers. It becomes an amalgam. That is what the public sees and passes judgment on. George have you used the term fake news in any of your trials . Tom no. I do not. It obviously has some currency, i think fake news, to me maybe it is the Legal Training i think it is a very imprecise term. Up in my news conjures mind is something completely made up from whole cloth, fiction, which is not our cases. In our cases, there is always some element of truth or factual basis for the reporting. What we are arguing is it is substantially incorrect, factually. I may talk about sloppy journalism, reckless journalism, bad publicity, bad press. I think fake news is a different genre. Like many things the president does, it is a clever branding for this concept. Tapped into this notion with his blunt fake news phrase, but i do not think it resonates with juries. Our caseard judges in is saying we are not talking about fake news and our courtroom. I would not want to use that phrase because it would damage my credibility. George lets move to a more specific legal topic, which is promiseddents threat to open up the libel laws. I am not sure what opening up the libel laws means. So far, nothing has happened on that front. But can the president actually affect the libel laws . Laura no. He cannot make the laws. Obviously, that is congress role. His Supreme Court selections, he can certainly impact the interpretation of the laws that but he personally cannot make the law. George do we have anything to worry about in terms of the president s vow in changing libel law . Floyd i do not think so. First of all, it is preposterous. We have no federal libel law. There is nothing to change. Congress has not ever passed a libel law. We have 50 state libel laws. What he really means, because some lawyer has told him that he cannot win in this or that case that he wanted to bring, what he means is he does not like the New York Times v. Sullivan. Or put differently, the First Amendment. [laughter] which is the basis of that opinion. The president can do is to point people to the Supreme Court who have it in that wholerrule amount of cases, beginning in 1964, which did provide an enormous amount of First Amendment protection for the press. George where do we stand on the policy matter . V. We stand now, does times sullivan provide too much flexibility to the press . And you have some wins to prove that there is a balance that perhaps works. Tom the New York Times v. Sullivan standard is one of the most fascinating in american jurisprudence. It is truly extraordinary. Ever k about what what other profession where legal liability is determined by a knowledge of falsity or a reckless disregard for the truth. As lawyers, we are held to a different standard. Deviating from the standard of care. Doctors, dentists, accountants are all held to a different standard. So we have this reckless disregard standard for the press. I do not know if i would argue muchit has been gotten to protection, but in the years sullivan was v. Decided, it does provide incredible First Amendment activity. Other things layered on top of it, including retraction statutes there are so many things layered on top of the New York Times v. Sullivan standard, i think the pendulum has swung too far in really this incentivizing disincentivizing people who have legitimate economic and reputational harm from being able to assert those. Come to our clients who us, we have to counsel them about the extraordinary hurdles they face, even if they have what would be a meritorious claim. The opportunity to thread those needles and get vindication is extremely difficult. George this is for the audience. If you do not know, New York Times v. Sullivan says if you are writing about a public figure, the only liability is if the report is done with serious doubts as to the truth. You wrote it with serious doubts as to the truth of what you are writing. Whereas for a private figure, the standard is negligent. Jim, as a journalist, what does that mean to you . If youre writing a story, do you go through an analysis this person is a public figure, i can afford to be sloppy . Or does none of this matter . A dayou never think about today, because you are hopefully i think this is something the public does not understand you are having sleepless nights, making sure you are fair and accurate, where someones reputation can be harmed. Everyone i know in this business lives that way. I know there are people i am not friends with in the business who do not operate under that standard. I feel this, journalistically. If someone is running for president or is involved in shaping Public Policy in a big, public way, we need to do everything in our power to learn every single thing about that person and be accurate and be fair. But we cannot be legally burdened in trying to do that. George you have in common in a