#libel chill

The book primarily concerns itself with the effort to overturn Sullivan, a 1964 Supreme Court case that established protections for media outlets that report on public figures and commit minor factual errors, provided that the errors were neither negligent nor malicious.

Since Sullivan, media outlets have held the upper hand when reporting on public figures. While Sullivan isn't a license to simply make stuff up about celebrities, politicians and business leaders, it does mean that if a reporter makes a minor misstatement, it's on the subject of the reporting to prove that the error was negligent and/or malicious.

Before Sullivan, most defamation litigation happened in state courts, and southern courts allowed lawmakers and cops to sue newspapers that reported on racial terror campaigns during the civil rights fight. The judgments involved were so large that many media outlets simply gave up on reporting on the intimidation, violence and murder taking place in the Jim Crow south.

True to form, Clarence Thomas has led the charge to dismantle a law that was key to the struggle for rights for Black people and other disfavored minorities. In Enrich's telling, Thomas's animus for Sullivan started during his confirmation hearings, when Anita Hill described his relentless sexual harassment of the lawyers who worked for him, including Hill. Being the subject of a media firestorm that painted him as a disgusting, cruel sex-pest seems to have inspired Thomas in a decades-long campaign to find a case that would let him tear down Sullivan, so that wealthy people could once again intimidate reporters into silence. Of course, Thomas's hatred for Sullivan only grew when Propublica revealed that he had taken numerous "gifts" from wealthy "friends" who had business before the courts, revelations that will forever make Thomas's name a synonym for corruption.

Enrich's cast of characters includes a clutch of whiny, ultra-rich axe-grinders, who finance (often in secret) lawsuits that are designed to chip away at Sullivan. Some are international looters or corrupt ex-Soviet oligarchs, but others are ideologues, committed to the principle of impunity for the powerful.

He also introduces us to the lawyers who wage these battles. As you might imagine, the kind of lawyer who sits up at night figuring out how to help wealthy, powerful people destroy their critics is often a crank themselves, with "colorful" personal relations that Enrich reports on with meticulous prose, including the many denials and non-denials his subjects sent when he sought comment.

As with his LIBOR book, Enrich does yeoman duty here unpacking complex matters that would be dull in a lesser writer's hands. The litigation strategies devised by Sullivan's enemies are always convoluted and are sometimes clever, much like the litigation strategies used to kill campaign finance limits (Citizens United) and abortion rights (Dobbs). Indeed, many of the financiers, think-tanks and lawyers behind those plots are also would-be Sullivan slayers.

The best of these legal gambits are actually rather clever – locating innocent people who've been genuinely wronged by Sullivan (as the saying goes, "hard cases make bad law") and then using them to undermine Sullivan, without actually helping them in any way. It's positively fiendish.

We're in a moment when a lot of powerful people are getting far more powerful, and abusing that power to commit wildly corrupt acts. The only way we'll know about this is if the press can freely report on their misdeeds. Murder the Truth is a vital guide to the next Citizens United, the next Dobbs – a campaign to take away your right to know about the next assault on your rights that plutocrats will launch.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://www.harpercollins.com/products/murder-the-truth-david-enrich