There’s a case to be made that David McCraw is the tip of the spear defending press freedoms under attack in the United States today.
McCraw is the lead newsroom lawyer for The New York Times, which is defending itself and the news industry’s freedom from government interference on multiple fronts.
In March it won a lawsuit over new Pentagon policies restricting reporters’ access, though the fight continues as the Department of Defense weasels around the ruling with additional restrictions.
The newspaper rebuffed a $15 billion defamation suit brought by President Donald Trump. It also blocked subpoenas of phone records of reporters who revealed shortcomings of the Air Force One airplane donated by Qatar.
“It’s unfortunate that the government sort of believes rights are a game of whack-a-mole,” McCraw said. “We win one, and something else pops up, and we’re going to have to go after that one as well. It’s not the way it should be, but it’s the way it is.”
McCraw said he’s “hopeful that someday people will not know what The New York Times legal department is up to because journalism is taking place in the way it should, without interference from government agencies and others.”
That will take a while. For now, The New York Times is a lightning rod for Trump and allies wanting to delegitimize the press and reporting on their missteps and attempts to mislead the public.
That ploy worked. Trust in news media plunged, particularly among Republicans, since Trump’s ascent, creating uncertainty about factual reporting and making it easier for politicians to evade accountability.
It also emboldened federal, state and local officials to flout the First Amendment’s prohibition on “abridging the freedom of speech, or of the press.”
Reporters have been arrested, subpoenaed and barred from briefings and their usual access to public buildings. Journalists’ offices and homes have been raided and publishers sued by a president trying to subdue them.
Cronies are also weaponizing federal agencies, using regulatory and investigative powers to bully news companies.
This year the U.S. fell to 64th place on Reporters Without Borders’ ranking of nations’ press freedom, below Botswana.
Yet there’s shockingly little blowback from Congress and a divided, dazed and distracted public.
Despite Americans’ faith in the First Amendment, press freedom relies on laws and court rulings affirming its intent.
Newspapers, small and large, historically fought much of that battle. The New York Times won pivotal Supreme Court cases, including the 1964 “Sullivan” case protecting the press from unreasonable libel suits and freeing it to aggressively report on public figures, and a 1971 case preventing the government from blocking publication of the Pentagon Papers.
Some conservatives want Sullivan overturned, but McCraw believes the landmark case is secure, along with other core press-freedom protections.
The Illinois native was a newspaper columnist before law school. He joined The New York Times in 2002 and is now senior vice president and deputy general counsel, leading a team of six newsroom lawyers. They are supplemented by outside lawyers and more than a dozen elsewhere in the company.
Only a few newspapers still have staff attorneys and most have less to spend on outside counsel. That puts the onus for defending press freedom on a shrinking group that includes broadcasters, wire services, nonprofits, firms donating service and McCraw’s team.
Bruce Brown, Reporters Committee for Freedom of the Press president, described McCraw as “the dean of the in-house lawyers — he’s been doing it for decades and he has a ton of respect within the industry.”
Other outlets fighting subpoenas and restrictions include The Washington Post, Associated Press and The Wall Street Journal. The Seattle Times fought similar battles in recent years.
Brown said The New York Times cases “were really out there in a public way.” McCraw and Publisher A.G. Sulzberger are taking advantage of that “to make sure that the public is aware of how important these fights are.”
Here are edited excerpts of my phone conversation with McCraw about defending the First Amendment’s press freedom.
Brier Dudley: How would you characterize the current environment for press freedom in the United States?
David McCraw: Well, I would say that the interesting thing is the law has not really shifted. The same protections are in place. What has shifted is a couple things, significantly. One is the attack on norms — the sort of consensus we’ve had as a country about the value of press freedom, the value of having the press be a monitor of government processes, having access to information. I think that there’s just been a grumpy attack on those norms, whether it’s who gets to come to a press conference, whether it’s the way other access to information is treated. The other thing is the heart-and-mind problem — having people believe in the value of a free press. They don’t have to love what we do. But having them believe in the value of it, I think, has been under constant attack over a period of time, whether that’s being accused of treason, being labeled as fake news, being labeled as enemy of the people. All of that comes to erode the trust, the belief, in a system where an independent press has value.
Q: How can that be reversed?
A: It’s going to take time to undo. All of us in journalism have to evangelize. We have to talk about why we do what we do and why that’s valuable, and we have to be humble about that. It becomes very important that we have leaders who will speak out for the value of press freedom.
Look at the polls. If you ask people if press freedom is important, you’re talking about a number north of 70%. If you talk about trust in news media, you’re talking about a number that’s likely below 30%. That’s the gap that we need to be addressing. People understand that abstract view of such freedoms. Somehow we need to find a way that they also value those people, those organizations, that are actually doing journalism.
Q: I’ve wondered how much local newspapers’ decline has enabled the deterioration of press freedom. Americans are losing the daily habit of reading journalism.
A: It definitely has had an effect. Unfortunately, a lot of publications believed they could cut their way to prosperity, and it was just the opposite. As the resources shrink for local journalism, their ability to stand up legally is also reduced. Their ability to have attorneys, to pursue legal information, to demand that courts be as open as they’re required to under the law — all of that diminishes, and I think that’s unfortunate.
Q: For sure.
A: One of the things that always strikes me when you look back on the history of the great Supreme Court decisions about press freedom is how many of them involved news organizations that weren’t very big. You have Times v. Sullivan but you also have the Press Enterprise decision from Riverside, Calif. Not a big paper and it twice went to the Supreme Court to argue for the right to access the court and won. Florida Star was an important decision about press freedom and privacy, a newspaper with 16,000 readership. You just won’t see that again. Those of us who are privileged to work for big, well-resourced news organizations have an obligation that extends beyond our own organizations to press the case for press freedom on behalf of all journalists, all news organizations, whenever we get that opportunity.
Q: I’d like to talk about your Pentagon lawsuit and subpoenas prompted by reporting on the plane Qatar gave Trump.
A: We took on the Pentagon as it attempted to restrict press passes. The press corps has a long and important history of covering the Pentagon and in all that time, through all those wars and all of those tense moments, the Pentagon never felt the need to use the press pass to restrict press access to stories. If you think about it, the press pass is supposed to do just the opposite. It’s supposed to entitle you to more access than someone without a press pass has, and the Pentagon turned that on its head.
Our publisher, A.G. Sulzberger, said that we should take this fight on, we may lose, but the alternative is that we let the Pentagon decide, or we self-censor ourselves, we pull back. That’s not how it’s supposed to work. The constitutional order should be that a court gets to decide if we’re right or wrong, and that’s one of the reasons we felt it’s very important to press on, and we’ve had success in that case and on appeal. We’ll see what happens.
The court should be telling us what the law is. We shouldn’t be letting government agencies decide “here’s what the relationship between the press and the government is going to be.”
On the subpoena side, again, it reminds how important the courts are — that we shouldn’t be in court as much as we are, we shouldn’t have to rely on the courts, we should have government officials that honor, respect, follow the rules. But if they don’t, I’m very proud of the way the courts have reacted in a variety of cases involving the press (and) other basic rights.
My hope is that by getting those decisions a message is sent both to the government agencies, that maybe there’s a better way to do things like following the rules, but also to the public, that we are going to fight for our rights, that these are rights worth standing up for, and that ultimately the public benefits from that.
We saw that repeatedly in decisions in the Pentagon case. U.S. District Judge (Paul) Friedman really seemed to value that traditional model — that the press has value, and people should be skeptical about government. Too often, that has been switched over the last few years, where there’s an overvaluing of government, over-trusting of government, and skepticism about the press.
Q: The U.S. fell to 64th place on a press freedom index. Are we still a beacon of freedom?
A: We get a lot of things right. If you’re looking at protection of sources, there are many other countries doing a much better job. We need to have better laws about that. We shouldn’t have to fight over our right to protect sources. In terms of libel, we’re doing a lot better than a lot of countries. We in fact have a system that makes libel rare; one has to be able to show that it’s an intentional falsehood or something pretty close to an intentional falsehood to bring a suit successfully if they’re a public figure or public official. Access to information — we’re somewhere in the middle, we could be a lot better than we are, it needs to be stronger. If you see the countries around us (on the list), I’m not sure that you’d want to practice journalism in those countries, no matter how things have devolved here in the U.S. over the last few years.
