Judge Learned Hand, revered for his eloquent and consequential defense of free speech at the height of World War I, came to fear, later in his life, that Americans had placed too much faith in lawyers and legal institutions. In 1944, at a celebration of what was then known as “I am an American Day,” which extolled American citizenship, he told an audience of more than a million people in Central Park:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
I remembered Hand’s “The Spirit of Liberty” speech while watching some of the largest American media institutions and technology companies prostrate themselves, one after another, before Donald Trump, offering obscene sums of money to settle feeble or frivolous lawsuits that one would have expected them to contest. The First Amendment gives American publishers and platforms rights that are the envy of their counterparts around the world. That today so many of these organizations evidently lack the will or courage to exercise them is frightening and dispiriting.
The spectacle of powerful media organizations debasing themselves before Mr. Trump has become so familiar that it is beginning to feel like scheduled programming. In December, ABC News agreed to pay $15 million to settle a lawsuit in which Mr. Trump contended that the network’s star anchor, George Stephanopoulos, had defamed him by saying on his weekly television program that a federal jury had found Mr. Trump liable for rape when in fact it had found him liable for sexual abuse. The payment will be earmarked for Mr. Trump’s future presidential foundation and museum; ABC also agreed to pay $1 million in legal fees.
Why the network agreed to the settlement is not entirely clear. Mr. Stephanopoulos’s statement was technically inaccurate, but that alone would not have given rise to liability. At trial, the network would have benefited from the robust protection that the First Amendment affords to criticism of public figures. Mr. Trump would also have had a difficult time proving reputational injury. Some have speculated that the material that ABC had been compelled to turn over to Mr. Trump in discovery had weakened its defense, but at least to an outsider the $15 million payment looks less like settlement than submission.
Meta’s settlement with Mr. Trump, which followed a few weeks after ABC’s, smells even more rank. Mr. Trump’s central claim in that case was that the company had unlawfully censored him in violation of the First Amendment by suspending his Facebook and Instagram accounts after the Jan. 6 riot at the Capitol. To settle the case, Meta agreed to pay Mr. Trump $25 million, most of which would be directed, again, to his presidential library. (If things continue this way, the Trump library will rival Alexandria’s.)
