State Bar of Texas Annual Meeting 2019: Free Press and the First Amendment with David McCraw

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Transcript

State Bar of Texas Podcast
State Bar of Texas Annual Meeting 2019: Free Press and the First Amendment with David McCraw
06/14/2019

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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice, with your host Rocky Dhir.

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Rocky Dhir: Hello and welcome to the State Bar of Texas Podcast, recorded from the Annual Meeting in Austin, Texas. This is Rocky Dhir.

Laurence Colletti: And I am Laurence Colletti.

Rocky Dhir: And we are your hosts for today’s show, which is being sponsored by LawPay, trusted by more than 35,000 law firms to accept legal payments online. It’s the only payment solution offered as a member benefit by the State Bar of Texas.

Joining us now we have David McCraw. Welcome to the show David.

David McCraw: Thanks for having me. Glad to be here.

Rocky Dhir: So before we start talking about — actually for those of you wanting to know, we are going to be talking about the First Amendment, all right, so before we start talking about Amendment #1 to our Constitution, please David, tell us more about yourself.

David McCraw: I am the Deputy General Counsel at the New York Times. In that role I am the Chief Newsroom Lawyer for The Times. So anything that deals with threats of being sued for libel, reviewing stories beforehand to avoid getting threats from people who want to sue us for libel, freedom of information, dealing with subpoenas and reporters, all of that falls within my portfolio.

I am part of a 12-person legal department; the legal department covers a lot of things, we are a public company so we have corporate lawyers, we have employment lawyers, we have IP lawyers, but my focus is primarily the newsroom.

Rocky Dhir: And so when you are talking about the First Amendment and in today’s environment, is it just as simple as saying look, are we allowed to say it or are there more — is there more nuance maybe to the First Amendment questions that you have to deal with?

David McCraw: I do a presentation with our Standards Editor, he is in charge of ethics and he always complains your part is easy and my part is hard.

Rocky Dhir: Why does he say that?

David McCraw: Because whether you should print something is a complicated, complicated question; is it fair, does it violate people’s privacy, is it balanced, is it in context. The First Amendment is so powerful in this country that for me it’s generally pretty easy, we can do that. There are times when we may need to change something so that we don’t risk a lawsuit, but by and large, the protection of the press in this country has remained really, really vibrant.

And when people talk about is the First Amendment under threat? My answer is yes, but not because we are concerned about change in law.

Rocky Dhir: So how is it under threat then?

David McCraw: I think it’s under threat because —

Rocky Dhir: You walked into that question David, I hope you understand.

David McCraw: Yeah. Well, I call it the hearts and minds problem, that the real threat to freedom of the press is the discrediting of it, the delegitimization of it, if I could use that term, that a disbelief press or a discredited press or an ignored press has no power, it can’t serve democracy.

It’s really not that different from a shackled press. It’s the same thing. A shackled press, why do I believe what’s there, the government controls it, when you have this constant drumbeat of fake news and enemy of the people, it’s inviting people to dismiss.

And there was a poll while I was writing my book ‘Truth in Our Times’ that I saw while I was in the middle of writing it, it would show that 26% of the people believe that the president should have the power to close down news organizations that misbehave. That’s an incredible, incredible statistic.

Rocky Dhir: That’s a big statement to make, yeah.

David McCraw: It’s a big statement to make because look, nobody has to love the New York Times and nobody has to love mainstream media. In fact, the criticism of mainstream media is really important, like any powerful institution, it should be subject to criticism, but the idea that the balance of power should be that the president can shut it down if he somehow finds that the press has misbehaved is astonishing. That’s not what Thomas Jefferson had in mind.

Rocky Dhir: Now, let me play devil’s advocate for a second, because I do on occasion read things, it’s not often, I try to avoid it if I can, I would much rather look out the window and stare off into the distance, but when I do read, and when I read news articles I have noticed, no matter which side of the political divide you are on, there is, at least in my view, increasingly more I guess editorializing or use of language that seems to be aimed at leading a reader to a particular conclusion, regardless of who is in the White House. It’s the president did something good, the president did something bad as opposed to here is what the president did and agree or disagree and you make that decision for yourself.

Do you agree with that overall sentiment I just laid out, and if so, what role do you think that plays into this whole First Amendment dialogue that the country is going through right now?

(00:04:58)

David McCraw: The answer to the question do I agree would be that it depends on what media you are looking at. I often talk about the current media as being the world’s biggest baddest Las Vegas buffet, everything is there, everything is there. And if you want to spend all your time at the dessert table, you can, and that’s what I look of as the cable networks.

Rocky Dhir: Okay, got you.

David McCraw: You go down there and they are going to tell you exactly what you already believe and you are going to feel great for a while, just like you are when you are eating at the dessert table. I am hoping that people will find their sustenance elsewhere.

I draw the line like this on point of view. I do think facts have to be put into context. If someone is not telling the truth, I think that the news organization can’t just be a stenographer, can’t just say well, he said it and you dear reader figure it out. If the facts contradict what’s being said, I think it has to be put in context. I don’t think of that as bias, I think of that as making it meaningful.

I am concerned about many news organizations and I hope The Times on its good days doesn’t fall in this category that believe that readers have to be told what to think, and I think that’s part of the distrust of the media is so much of what people are seeing and what people are hearing and reading feels like it’s coming from advocacy. And I think the reaction to that is to cleave to those voices that you agree with and ignore the ones you don’t, and I think that leads to a bad place for democracy.

Laurence Colletti: Yeah. I wanted to add to that David. I consume the news quite a bit with what we do at Legal Talk Network, we want to stay on top of the most breaking stories and so I consume everything that I could possibly listen to, watch, or read, and I have got to say I have noticed in the last probably 10 years or maybe more that the opinion news and the fact-based kind of journalism reporting, those lines are getting blurred and it’s across major networks and major publications.

And I think that that — and I kind of coincide that with some of — there was a day when you used to be able to disagree with somebody and it didn’t become a personal issue, but today, the political rancor, the fights and everyone’s interpretations of reality are becoming very contentious and I wonder if that has something to do with it.

What is the pressure I guess from an organization to ride that line? I know you have got people that tune in or read from you and they have got certain expectations of your platform, but when it comes to some of the facts and there is an agenda, that really gets rolled into potentially a very toxic situation. So I think I just want to kind of hear your opinion on that as somebody that pervades the news.

David McCraw: I can’t believe you just said that, I am so offended. This is a very tough environment to play it straight and I think that at The Times there is a belief that that’s how we should play it, that that’s ultimately where the market is for us. Unfortunately I think for the market for a lot of people is in being — is in aligning with a particular point of view.

But I talk about my book, an example of why it’s hard to go up against your readers, because some ways when we talk about the First Amendment, a lot of it is well, you stood up to the government, that is a form of courage, but sometimes standing up to your reader is a different form of courage.

We did a story about an alt-right guy and we portrayed him as being kind of an average schlub, who shopped at Target and ate at TGIF and that was — he was just a guy.

Rocky Dhir: Well, I am a schlub, I just realized, I am a schlub, I meet both of those criteria.

David McCraw: And we didn’t portray him as an evil Nazi sort of, we portrayed him as a completely misguided average guy and that to me was what the story was about was how did he have these anti-American, un-American ideas given the way he lived and grew up.

The reaction of that was very, very bad. People said that you are normalizing hate, that you are giving a platform to somebody whose views are repugnant. And I was disappointed in that reaction. I think we need to understand who these people are. I mean if you happen to be a person who thinks that the alt-right and anti-Semitism and all that needs to be halted in America, and I am certainly one of those people, I want to know who they are, I want to understand them, because that’s the only way we have any chance of reaching them.

Rocky Dhir: I really enjoyed Laurence’s question because — and I enjoyed your response, because it sounds like there is also this tug of war, if you will, between highlighting those whose opinions we disagree with or giving them license to just have those opinions under the radar, in the quiet, in the privacy of their own homes and in their own little echo chambers. And when you do that latter, presumably that doesn’t solve the problem, that just sweeps it under the rug and still lets it fester.

(00:10:10)

Is this a topic that, in your view, from your vantage point, do you think that we have always had this problem or do you think this has become more highlighted in recent years?

David McCraw: The problem of partisanship?

Rocky Dhir: Well, the problem of how you present a differing point of view and people not necessarily — on the one hand, if you don’t talk about issues you disagree with, then you are ignoring them. On the other hand, if you talk about them, you are normalizing it. And so there is that tug of war.

David McCraw: I think one of the bad things happening in America is the rise of the word normalization. Look, in my book I go back and say that story reminded me a whole lot about work that was done by Hannah Arendt decades ago about the prosecution of Nazis. When she covers the Eichmann trial in Israel, the title of her book is the ‘Banality of Evil’, that Eichmann was not some extraordinary monster, despite what he did, he was an average guy who somehow found no problem engaging in horrible acts.

Rocky Dhir: Wake up and drink orange juice in the morning or do whatever, right?

David McCraw: Right. She wanted to convey that and she got slammed for that. And it’s the same thing is that we may want to think of our monsters as being monsters, but unfortunately many of our monsters are men and women. We need to understand that.

Again, if we are going to teach in school how not to become that, if we are going to speak up to it, I think we have to deal with it as it really is, not as we would want it to be.

Rocky Dhir: There are often “well-intentioned monsters”, they think they are doing something perfectly fine. I don’t know, in your view, in the work you have done, do evil doers necessarily know that they are evil doers?

David McCraw: It probably goes into an area of philosophy that often exceeds what I am doing in my work, but it raises the question that we started with in my mind, which is that how do you cover these things in a way that conveys what people need to know.

But the point I would come back to is that the First Amendment allows that kind of speech. It allows the alt-right to have their websites and anti-Semites to have their websites and so forth, and I think that’s why there is such a struggle now to get people to understand that standing up for free speech does not mean endorsing that speech, and standing up for free speech also means that all of us, all of us need to participate and speak out, speak out against the ideas we dislike.

And Laurence asked the question, all the media are concerned about making a business and it’s much easier to flatter your readers than to challenge them. We need readers to accept the challenge.

Rocky Dhir: Interesting, interesting.

Laurence Colletti: You know David, from one of the sections of your presentation, what I thought was so fascinating was how the modern media formats are presenting a lot of challenges to First Amendment protections and they are skirting into different areas of law, just by the nature of their apparatus. And you brought up a few examples.

You brought up photography of John Lennon from 1980, you brought up some pictures that were recently shared online, I think it was by Elon Musk, and then there was another example where there was an embedded player and they were all kind of treated differently from that. And I just — it was fascinating to me how that’s evolved and these new ways that we connect.

So I would just love to highlight some of those talking points.

David McCraw: Yeah. The rules that guarantee free press came into existence from a series of Supreme Court decisions between 1964 and 1989, and when they wrote, when the Supreme Court wrote about press freedom, they knew what a journalist was and they understood what journalistic standards were and they understood what media was, that’s all been blown up, it has left town.

And so the kind of questions that I was talking about today was — it starts in esoteric places. We now have journalism that’s produced by machines. We have stock reports, stories that look like they are written by human beings, they were actually written by machines. We have sports stories that were actually written by machines. If they get it wrong, if they make a mistake and the organization gets sued, what’s negligence? Can a machine be negligent?

But then you get into these questions of a medium like Twitter and one of the cases that I talk about both in my book and in the presentation today was the case in which Donald Trump was sued for libel for what he said on Twitter. He writes a very, very nasty, nasty tweet about a political consultant and she sues, and the judge says, nobody would have thought that was factual. You have to have a fact to have a libel case and anybody reading Twitter and looking for facts is nuts, right? It’s a medium for opinion.

(00:15:04)

That kind of thing was never in the contemplation of the Supreme Court 50 years ago when they were writing these incredible decisions. They are seeing the New York Times, they are seeing CBS News, they are not seeing the individual. This is the individual communicator. This is really a time where if you say you are a journalist and you have a Facebook page, I guess you are.

Laurence Colletti: Well, definitely — the platforms definitely allow people to rise up kind of from nowhere and become a news source. One of the things — you were just talking about the ability to share and Twitter and one of the things that’s recently kind of come up, and I think unfortunately so, is the concept of doxing, where you are deliberately putting out into the Internet forever, for everyone to see someone’s personally identifiable information which could get them hurt. There is nuts out there, people that would do someone harm and there are some ramifications for putting it out there, and of course there is a First Amendment protection of free speech.

But that’s got to be — with these new mechanisms that’s got to be — be called into check, like what is your right to share information about a person that may be publicly available, but not attached to this person in such a way that creates a fervor against them.

David McCraw: Yeah, it’s a really big issue for us, because many of our reporters are subject to that. We see incredible, incredible attacks online. People on the dark web who post, not just the address of our reporters, but where their children go to school.

And in my presentation today, and at the end of my book I talk about Tim Wu’s idea that Twitter has killed the First Amendment. That the speech on social media is often a weapon, it’s not doing anything that conventional speech was intended to do; raise ideas, make people laugh, make people cry, the kind of things that speech were intended to do, it has become a weapon.

And I see that, I agree that he is right about that, the question is what are you going to do about it? And he struggles in the articles that he has written about, do you turn the power over to government to regulate free speech. How do you draw that line? What does weaponize speech look like that makes it different from protected speech? Those are really hard questions, but I think they are inevitably going to be asked.

In some ways they are also wed to what I think is the other big digital question about the First Amendment. When you have YouTube, when you have Twitter, when you have Facebook, which they are so powerful, are they really just First Amendment protected organizations providing speech or are they the public park and should they be open to every point of view?

Rocky Dhir: Well David, if I could, one last question maybe is, where do you think we go from here? I mean it looks like we have got a serious problem, probably prompted by technology and the advancement of our means of communication, what’s next in your view?

David McCraw: Somebody wrote an email to me that began, why did you write your book, and I decided not to read that email right away, because I knew it was going to go someplace bad, or at least I thought I did. I was wrong. She said why did you write your book, you should be writing for children, you should be writing for young adults. And I think if we are going to go someplace good, it’s there. It’s teaching young people how to be better media consumers, how to unplug in many cases, but how also to consider the source, where is that information coming from, can I trust it, how do I make a judgment, teaching people that they need to go to various places to get information.

I was speaking at a college a while ago, a student stood up and said, you know, what should we do about Breitbart News, and I said read it, and he fell into his seat again, because what he wanted me to say was well, we should ban it.

Rocky Dhir: Outlaw it, sure.

David McCraw: And we only need to ban it if people can’t self-regulate and question and have discernment.

So that’s not really a satisfying answer, but that to me is the answer, the people hold their destiny in their hands on this one.

Rocky Dhir: Well, it looks like we have reached the end of our program. I want to thank David McCraw for joining us today. Thank you David.

David McCraw: Thank you. It was a great interview. I enjoyed it.

Rocky Dhir: This was a pleasure.

Now, if our listeners have questions or would like to follow-up, how can they get a hold of you?

David McCraw: Feel free to email me. My email is my last name [email protected].

Rocky Dhir: Okay. There we go. Now, that is all the time we have for this episode of the State Bar of Texas Podcast, brought to you by LawPay. Thank you again LawPay.

Also, thank you to our listeners for tuning in.

If you like what you heard, please rate and review us in Apple Podcasts, Google Podcasts, Spotify or your favorite Podcasting app. I am Rocky Dhir.

Laurence Colletti: I am Laurence Colletti.

Rocky Dhir: Until next time, thank you for listening.

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Outro: If you would like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast. Subscribe via Apple Podcasts and RSS. Find both the State Bar of Texas and Legal Talk Network on Twitter, Facebook, and LinkedIn or download the free app from Legal Talk Network in Google Play and iTunes.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by the State Bar of Texas, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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