Reprinted with permission from ProPublica.
Wednesday was an ominous day for freedom of the press in this country, and I want to tell you why.
You may have heard or seen that President Trump filed a libel suit against the New York Times. Perhaps you weren't surprised: the president is known to frequently disparage the Times even as he reads it obsessively. Borrowing a page from what I've referred to before as a Mount Rushmore of totalitarians, Robespierre, Hitler, Stalin and Mao, Trump loves to call the press the "enemy of the people."
But Wednesday's suit is an important step beyond bluster to try to silence the press using the legal system — and just days after the president announced that he considers himself the country's "chief law enforcement officer."
This new lawsuit is a joke under our current constitutional law of libel. It complains of an opinion piece written by a former executive editor of the Times, Max Frankel. Frankel, 89, a great journalist (and, admittedly, a friend of mine for more than 40 years), won a Pulitzer Prize in 1973 and ran the Times opinion pages from 1977-86 and its news pages from 1986-94. His op-ed last March reflected his belief that Trump and Vladimir Putin of Russia were engaged in a symbiotic relationship, with Putin helping Trump gain power in this country while Trump sought to soften U.S. policy toward Russia.
Both of these elements — Putin's help to Trump and Trump's history of going easy on Putin — are established facts, with Trump's own government reminding us again this month that Putin's work continues, and numerous reports making clear that Trump has worked to placate Russia, even if others in his administration sometimes stymie this impulse. Whether, as Frankel argued, this suggests an implicit quid pro quo is the sort of opinion that belongs on, well, on the opinion pages, where it ran.
And the Supreme Court has declared that opinion is constitutionally protected. So this case should be readily dismissed. And Trump must know it, because just three years ago he got a libel suit against him dismissed in the very same court in which he sued the Times on Wednesday on the grounds that what he had said about a critic was protected opinion.
But the president sued anyway. He sued even though he had never complained about the story after it was published. He sued almost a year after the article was published, just ahead of the statute of limitations expiring. On Wednesday, in a news briefing where he attempted to minimize the seriousness of the looming pandemic, he said "there will be more coming."
And that is the point. What is happening here is a cynical play to establish a talking point. Now, whenever the nation's leading newspaper reveals some new abuse of power or malfeasance in office, Trump can point out he is suing the Times. Perhaps, he may hope, the Times news pages will even pull a punch or two to avoid being seen as a presidential adversary. (I hope, and trust, they will not. I hope Max Frankel's successors will instruct their staffs that no one is to mention or even think of this silly lawsuit in considering other coverage of Trump.)
This is not Donald Trump's first libel suit, or the first such suit he has brought frivolously. Trump has been saying for nearly five years now that he wants to "open up the libel laws." Some of us listened to Trump during the 2016 campaign and saw the threat he posed of reinstituting the law of seditious libel, the crime of challenging the government, long since eradicated from American law. That threat took a new turn on Wednesday. This is an issue, amid all the craziness of the hour, that merits your attention, not least because "there will be more."