Recently, on a WBUR public radio program with Willis Ryder Arnold and Deborah Becker, author and leading First Amendment attorney James Goodale had some things to say about Donald Trump’s attempts to intimidate the press.
First a bit about the man. From the Wikipedia entry on Goodale:
James Goodale is the former vice president and general counsel for The New York Times and, later, the Times’ vice chairman. He is the author of “Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.”
Goodale represented The New York Times in four of its United States Supreme Court cases, including Branzburg v. Hayes, in which the Times intervened on behalf of its reporter Earl Caldwell. The other cases were New York Times v. Sullivan, New York Times Co. v. United States (the Pentagon Papers case), and New York Times Co. v. Tasini.
He has been called “the father of the reporter’s privilege” in the Hastings Law Journal because of his interpretation of the Branzburg case.
And now on to Goodale’s comments on WBUR regarding Trump:
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 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.
[. . .]
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.
Similarly, in an exchange with Trevor Timm for The Freedom of the Press Foundation on Feb. 12, Goodale had this to say:
If CBS decides to settle [the “60 Minutes” lawsuit], it will be an absolute disaster for the press. It would be one more domino falling down, handing Trump an undeserved victory against the press. . . . [ABC’s] cowardly settling its case in which George Stephanopoulos said “rape” instead of “sexual abuse,” but since then, Facebook has settled Trump’s even more outlandish suit, and for what? CBS should be standing up and fighting Trump. If I’m them, I’m not letting Trump make me look foolish. Because if it happens, there will be no end. Trump will bring lawsuits against every part of the media, and it will put pressure on everyone else to settle.
Let me make clear that the lawsuit is a bunch of nonsense. Trump’s legal theory doesn’t exist anywhere in the law, and so not only is the settlement bad in terms of putting the onus on everyone else to settle, but the entire premise of the lawsuit is ridiculous. News outlets are allowed to edit interviews! Hard to believe it even has to be said.
[ . . . ]
The suit is from Mars. To my knowledge, I’ve never seen a suit brought like this one where editing is being criticized as constituting consumer fraud. It has no basis in law as far as I’m concerned, and what’s going to happen — if, in fact, the case is settled — is there will be more consumer fraud cases every time the media edits an interview, not only with Trump, but other politicians. And the First Amendment will suffer.
[ . . . ]
[And] the response by the press as we speak has been pathetic. There’s no spokesperson for the press who is out there leading the charge and coordinating a united front with all the news outlets on the same page.
Related
Revenge Storm: ‘Chill all the Lawyers’
“Under my watch, the partisan weaponization of the Department of Justice will end. America must have one tier of justice for all.” — Pamela Bondi (Confirmation hearing for U.S. Attorney General, Jan. 15)
“There are a lot of people in the FBI and also in the DOJ who despise Donald Trump, despise us, don’t want to be there. We will find them. Because you have to believe in transparency, you have to believe in honesty, you have to do the right thing. We’re gonna root them out and they will no longer be employed.” — Pamela Bondi (March 3)
The administration is acting in ways that will necessarily chill a growing number of lawyers from participating in any litigation against the federal government, regardless of who the client is. That, in turn, will make it harder for many clients adverse to the Trump administration to find lawyers to represent them — such that at least some cases either won’t be brought at all or won’t be brought by the lawyers best situated to bring them.
[ . . . ]
[W]hat the Trump administration is doing is far more than just bad behavior; it’s a direct threat to the rule of law—almost as much as defying court orders would be.
Related
Executive Watch
President Donald Trump and his ally Elon Musk portray themselves as near-absolutists when it comes to free speech, engaged in an epic fight to let Americans speak openly again after years of enduring liberal efforts to shut down conservative voices.
But since taking office, the president has mounted what critics call his own sweeping attack on freedom of expression. Some of it aims to stamp out diversity, equity and inclusion and what he terms “radical gender ideology.” Some of it is aimed at media organizations whose language he dislikes. In other cases, the attacks target opponents who have spoken sharply about the administration.
Together, critics — and in some cases, judges — have said Trump’s efforts have gone beyond shaping the message of the federal government to threaten the First Amendment rights of private groups and individuals.
- “The MAGA War on Speech,” The New York Times (Feb. 28)
- David Enrich and Minho Kim, “Voice of America Journalists Face Investigations for Trump Comments,” The New York Times (Feb. 28 (Updated Mar. 2))
- Greg Lukianoff, “The First Amendment Isn’t on Trump’s Side,” The Wall Street Journal (Feb. 26)
- “The White House Says It ‘Will Determine’ Which News Outlets Cover Trump,” First Amendment Watch (Feb. 26)
- Devlin Barrett, Glenn Thrush, Maggie Haberman, and Alan Feuer, “Trump Takes Aim at Law Firm Aiding Jack Smith,” The New York Times (Feb. 25)
- Steve Benen, “DHS’ Kristi Noem says her pro-Trump ad campaign was Trump’s idea,” MSNBC (Feb. 24)
New report on state threats to free speech advocacy and donor privacy
Hurt feelings from the campaign trail fuel retaliatory disclosure demands across the U.S.
Legislative and regulatory proposals in as many as 34 states pose a potential threat to the privacy and free speech rights of donors to the nonprofit community, a new report finds. People United for Privacy Foundation (PUFPF), a national privacy rights advocacy group, warns that state officials are increasingly targeting the ability of nonprofit supporters to maintain their privacy as political polarization rises.
“After a bruising campaign season, many politicians are out for revenge against the groups and donors that dared to criticize them. These efforts reach far beyond traditional political committees to target nonprofits that discuss elected officials’ voting records or advocate on policy issues. Forcing nonprofits to publish their supporters’ names and home addresses is an intimidation tactic that chills free speech and violates personal privacy,” said PUFPF Vice President Matt Nese, a co-author of the report.
The report, “2025 State Threats to Donor Privacy and Nonprofit Advocacy,” analyzes current and past legislation, regulatory proposals, and statements by public officials to catalog potential threats to donor privacy in state legislative sessions occurring across the country.
Forthcoming book on how foreign authoritarian influence undermines freedom and integrity within American higher education
A revealing exposé on how foreign authoritarian influence is undermining freedom and integrity within American higher education institutions.
In an era of globalized education, where ideals of freedom and inquiry should thrive, an alarming trend has emerged: foreign authoritarian regimes infiltrating American academia. In Authoritarians in the Academy, Sarah McLaughlin exposes how higher education institutions, long considered bastions of free thought, are compromising their values for financial gain and global partnerships.
This groundbreaking investigation reveals the subtle yet sweeping influence of authoritarian governments. Universities leaders are allowing censorship to flourish on campus, putting pressure on faculty, and silencing international student voices, all in the name of appeasing foreign powers. McLaughlin exposes the troubling reality where university leaders prioritize expansion and profit over the principles of free expression. The book describes incidents in classrooms where professors hesitate to discuss controversial topics and in boardrooms where administrators weigh the costs of offending oppressive regimes. McLaughlin offers a sobering look at how the compromises made in American academia reflect broader societal patterns seen in industries like tech, sports, and entertainment.
Meticulously researched and unapologetically candid, Authoritarians in the Academy is an essential read for anyone who believes in the transformative power of education and the necessity of safeguarding it from the creeping tide of authoritarianism.
Sarah McLaughlin is a senior scholar of global expression at the Foundation for Individual Rights and Expression
Nadine Strossen on ‘The Weimar Fallacy’
FIRE Senior Fellow and former ACLU President Nadine Strossen discusses what is commonly known as The Weimar Fallacy: The idea that, if only the Weimar Republic in Germany had tamped down on Nazis and anti-Semitic speech, Hitler’s rise and the horrors of the Holocaust could have been averted.
As the daughter of a Holocaust survivor, Nadine knows just how ugly anti-Semitism can be — but censorship only makes it worse.
The truth is, there were many hate speech laws in Weimar Germany, and they were strongly enforced against the Nazis — including Hitler himself.
Not only did those hate speech laws help the Nazis gain power, they also helped the Nazis censor anyone who challenged it.
NAACP-LDF’s Janai Nelson on racism and book banning
LDF Associate Director-Counsel Janai Nelson speaks on the legal challenges to banned books, LDF’s legacy of using the law in order to transform society, and why progress toward racial justice requires we tell the truth about our nation’s history.
New Book by Gene Policinski traces history of First Amendment
First amendment, threats and defenses have, for much of the past 100 years, largely focused on protecting individual speech, the right of any one of us to express ourselves without interference or punishment by the government. But there is an increasing danger to our core freedoms from systemic challenges, which often involve other issues or circumstances, but which carry a First Amendment impact, if not wallop. – Gene Policinski
This fast-paced history of the First Amendment will engage students, educators, scholars and other fans of our nation’s most fundamental freedoms.
In “The First Amendment in the 21st Century,” Gene Policinski, Freedom Forum senior fellow for the First Amendment and past First Amendment Center president, traces the history of the First Amendment through its winding social and legal paths as it has intertwined with world events and cultural change.
He explores how this history shows today’s potential for a First Amendment renaissance even amid new technological challenges.
Deeply researched and clearly written, “The First Amendment in the 21st Century” reconciles the past and the present and opines on the future of our First Amendment freedoms — from the courtroom to the chat room.
New scholarly article: First Amendment Right to Affirmative Action
In the wake of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis.
I discuss various complexities and counterarguments: (1) Race is not different from sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context; the government will still be able to induce race-neutrality by the threat of withdrawing federal funds, but the unconstitutional conditions doctrine precludes draconian penalties such as withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn’t apply to public institutions.
I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and, most importantly, (3) what it takes for activity to be expressive.
More in the news
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
- Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
- Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
- TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Last scheduled FAN
FAN 459: “Alex Kozinski on JD Vance’s censorship speech”
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
