Freedom Of The Press In Trump’s America

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Freedom Of The Press In Trump’s America

11/30/2016

Intro: Welcome to ‘Thinking Like a Lawyer’ with your hosts Elie Mystal and Joe Patrice talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

Joe Patrice: Hello, welcome to another edition of ‘Thinking Like a Lawyer’, I’m Joe Patrice from Above the Law. With me, Elie Mystal. How are you, man?

Elie Mystal: F**k.

Joe Patrice: I assume that’s because you as you were telling me earlier your child had defecated on you earlier today.

Elie Mystal: Nope, nope. I would take. I would take every diaper full of poop in the world on my bed on my headboard if I could change the results of this election.

Joe Patrice: Yeah, okay.

Elie Mystal: Like I would take that for America, I would take every baby’s dirty diaper every morning for America.

Joe Patrice: Wow! Oh okay, I mean, that’s — that a — that’s a — that’s a statement there.

Elie Mystal: Of course, I’m African-American so America would never take that deal. My money is no good here.

Joe Patrice: Right. It’s also not a deal that like anyone can actually do — look it’s not like a functional deal, like we don’t operate in that way.

Elie Mystal: How do we operate, Joe? You are White, you tell me, how do we operate, how does this work now?

Joe Patrice: Right now we deal with a few years of fairly incompetent, largely alt-right leadership and move on from there. Certainly not an ideal world, but, hey.

Elie Mystal: You realize that not all of us are going to survive this, right? Like I —

Joe Patrice: Oh god, no, no, no, many of us are going to die, yeah. It’s the — I actually think of The Simpsons sequence when they go to the summer camp and there is a point where she’s like, Lisa says, “I feel like I’m afraid we’re going die”, and Bart says, “We’re all going to die, Lisa”, and she says, “I meant soon”, and he said, “So did I.” That sums this up. So yeah — no — that happened.

Elie Mystal: My only strain of hope here is, and for you listeners, who know me well, you know that my or at least follow me on Facebook, you know that I name my first son Claudius after the Robert Graves’ novel ‘I, Claudius’. Near the end of the novel when Claudius is emperor of Rome and Claudius had always wanted Rome to be a Republic and found himself kind of as an emperor somewhat reluctantly. As he is thinking about his successor he starts repeating almost in a senile way, “Let all the poisons that lurk in the mud hatch out”, and that’s how I feel, that’s how I feel that the only way forward is the only good thing is that now these people these motherfuckers, the White supremacists, now they are going to get what they want, now they’re going to get what they’ve always wanted, and we’ll see, we’ll see how the rest of America likes living in that world.

Joe Patrice: And that of course is Claudius Caesar who handed over power to Nero.

Elie Mystal: Exactly, exactly that was his —

Joe Patrice: Yeah. Good job, good job.

Elie Mystal: Well, in — from Claudius —

Joe Patrice: Good life model.

Elie Mystal: — from Claudius’ perspective Nero would be so bad that the Roman people would revolt and demand a republic.

Joe Patrice: Yeah. Or his wife poisoned him, one or the other. So, yeah it’s —

Elie Mystal: Well, yeah, talking about a novel.

Joe Patrice: Yeah. Well, or a life novel, historical events, they all kind of play together. Yeah, I know, so that all happened.

So we were going to talk about kind of moving past the fact that it happened and into some of the stuff about what it might mean and you’ve talked before, you know I’ve run some events, we went to some law schools to talk about the upcoming Supreme Court term which we thought would be very different.

The one thing you mentioned always was that you’re very concerned about regardless of which presidential candidate won that there might be an upcoming assault on some freedom of the press standards that we all take for granted.

Elie Mystal: Yes, and I don’t take them for granted. I know that it is — I am lucky to live in a place where I can call the President-elect a racist’s motherfucker and not have the cops kind of bashing down my door as soon as I say that on air. But I am worried about whether or not those freedoms will maintain and as you said correctly, Joe, I was worried about that somewhat regardless of who was elected — if Hillary elected we would have elected somebody who is notoriously combative with the media and perhaps has no love for standards such as New York Times v. Sullivan which is so important.

(00:05:22)

Now that Trump is here, I mean, this guy has bragged about wanting to open up the libel laws, and especially the thing that pisses him off most, is our ability as a press person to have celebrities and other public people have to meet a really high standard before they can sue us for defamation or libel or whatever. Trump hates that, and now he’s going to get his way. So if you hear somebody —

Joe Patrice: Yeah.

Elie Mystal: If you hear my windows breaking that’s the cops coming for me.

Joe Patrice: Right, well, yes, hopefully we don’t hear that now because the microphone is fairly sensitive, so we’re trying to get a clean recording here.

So transitioning from that though, that’s why we brought on the guests that we brought on today. So we have with us Charles Glasser who’s at – does, well, lots of things with regards to the media and law. He teaches at NYU School of Journalism, he’s been a reporter on that side of the media world, but he’s also been a lawyer working in the past with Bloomberg on making sure that they uphold media ethics, I guess. He is the editor of the ‘International Libel and Privacy Handbook’ and we thought that he’s probably the right person to bring on to talk about what the next few years of libel, media ethics, the relationship of the President to the media, et cetera is going to be like.

So welcome to the show, Charles.

Charles Glasser: Hey, thanks guys. You set it up pretty nicely, and Elie, I wouldn’t worry about brick that’s being thrown through your window anytime soon. It’s always good to be vigilant and you want to freak out, go ahead, freak out, but I’m actually — and by way of disclosure here, I did not vote for either Secretary Clinton or Mr. Trump just so we get that out of the way, but I have been in the media industry as a reporter and as a lawyer, I was in-house, I was a Global Media Counsel actually at Bloomberg for 14 years. So yeah, I’ve got some pretty good perspective on it.

If I could just throw something out there that I think might give you — let’s sleep, maybe half a wink, better, Elie, there’s a phrase going around that I quite find interesting, I think it’s actually pretty accurate especially to this point, Trump’s detractors take him literally but don’t take him seriously, and Trump’s supporters take him seriously but don’t take him literally.

Now there is — you can do hours, hours of shows about whether having a game show president is a good thing or a bad thing, Italy survived having a celebrity president or prime minister, I mean Italy is always messed up but this guy frankly in my view is much more Berlusconi than he is Hitler, and he — did you guys catch the tweet that ‘The New York Times’ sent out during his meeting yesterday? Trump’s meeting with ‘The New York Times’?

Joe Patrice: Amazing, amazing.

Charles Glasser: Well, that kind of goes to my point. This is a guy, and by the way, again, full disclosure, ‘The Washington Post’ wrote about my personal battles with Mr. Trump. He threatened to sue my reporters in Libel and wrote what I would call “an incoherent screed”, putting it nicely to me that was very, very — and this is before he was running and he is the guy really who does talk that way. It’s really freakish. Sad, he ends every paragraph within a 09:43 Jackie adverb, sad, pathetic, he is the guy who really does talk that way.

But all that being said, I think with regards to the First Amendment and where do we stand, and I know, Elie, you are not going to like this, but we’ve got to contextualize some things here.

(00:10:05)

Jill Abramson hardly a Trump supporter, hardly an alt-right nut, and Ron Fournier, again a very middle-of-the-road guy and a great political reporter who probably as experienced as anybody I know out there, among many others called the recent eight years, the worst years for journalism, and particularly transparency that they’d ever seen.

I don’t mind reminding you that President Hopenchange wiretapped reporters, intercepted emails, did a lot of stuff that was downright Nick Sounion, and that’s by no way justifying Trump or his threats or bullying as Susan Seager wrote in the ABA Journal, libel bullying and all that. So not to excuse that but do let’s get — keep a little perspective here.

So in ‘The Times Talk’, in the talk yesterday they asked him, and I thought they did a pretty good job at least from what I could get out of it, they said, “Well, you know, don’t you realize that this actual malice thing might actually be used against you sometime, you know, that it’s actually, you know, this is something you might want to keep”, and his comment was something — I don’t want to say, conciliatory, I mean when he made that comment about, you know, that might be true or you might be right or I hadn’t really thought about it, does that — how would you characterized that remark?

Joe Patrice: That was that was my take on it. He said something like, well, I never really thought about that. I’d have to look back at that or something like that, but it played into another thing that I saw from ‘The Times’ right above it which was that they were somewhat astounded by how thinly thought out a lot of his position’s work.

Charles Glasser: Oh absolutely, yeah, and then that —

Elie Mystal: Oh no, ‘The Times’ was astounded.

Charles Glasser: Well, ‘The Times’ in all fairness and I think Beke even acknowledged this on sad, sad Wednesday after the election, I call it sad, sad Wednesday.

I mean he had done this sort of you know that – or was it — actually it was Salzburger’s letter, wasn’t it? Not Beke. Saying, you know, we need to reaffirm ourselves and look a little deeper, more introspection, yada, yada, yada, and frankly, if ‘The Times’ were all that shocked then I think at how poorly thought-out and how maybe Trump might reconsider things, then I do think that there’s some currency to the notion that maybe you guys were really — you didn’t really have a good deed on him, this was the outrage election, right?

I mean, every time somebody said something, whether it be Hillary or Trump, every time somebody said something, everybody flipped out and reacted, right? It would be — just like — and it’s still going on. The slightest bump in the road and everybody freaks out. And if you followed him closely and/or in my case where you’ve had personal experience with the guy I think you realize that there was some considerable currency to the — I think much more solid argument that the Clinton camp put out there is about temperament, is this guy suitably tempered to be the leader of the free world as it were, and I thought that’s a very valid and important question.

That being said it goes back to his supporters not taking him literally, and this is a guy — I mean really the smartest thing Kellyanne Conway did was take the BlackBerry away from him.

Joe Patrice: So can I tell you, I think most of that is bullshit. First of all — I think it’s really important I think for me at this point to stand against the kind of false equivalency reporting that has happened so often.

Charles Glasser: Oh that’s the old buzzword, stay current, the new buzzword is normalization. False equivalency, so three weeks ago.

Joe Patrice: No, we’re going to get to normalization in a second, but when you talk about a President Hopenchange, you know what wasn’t happening to reporters during Obama’s administration? They weren’t being — Jewish reporters were not being singled out on Twitter by White supremacists, just as they tried to go about there —

(00:14:56)

Charles Glasser: Wrong. After the Madoff case, I defended reporters, we got anti-Semitic hate mail from people.

Joe Patrice: No, the whole bracketing thing — the three parentheses things that started to happening to Jewish reporters because of a Chrome app or whatever, that wasn’t happening in 2010. So when you talk about Trump’s attack on the —

Charles Glasser: If you are telling me that anti-Semitism is new?

Joe Patrice: No I’m not saying that it’s new, but I’m saying the specific attack on the press that’s going to come at Jewish reporters, minority reporters and female reporters, it’s going to be ratcheted up to 11 under the Trump administration and we can’t talk about how Trump will deal with the press without acknowledging that he is going to deal with minority members in the press differently than he’s going to deal with White people in the press.

Charles Glasser: Well, that’s hysterical conjecture.

Joe Patrice: Well, what’s that way, I mean, doesn’t that glosses over a lot of.

Elie Mystal: I’m not glossing over it, I’m saying that wherever it was in 2010 all that’s happening is that it’s going to go to 11, in 2017, and while you can sit there and feel very confident that —

Charles Glasser: Well, you know, we can make — your track record on predictions isn’t exactly, you know, spot-on otherwise we would be waiting for the coronation on the 20th, okay? And I can tell you —

Elie Mystal: Well, we all got that wrong.

Charles Glasser: — from personal experience, I mean, I’m not joking, when Bernie Madoff went to jail or was charged actually and the scope of his misdeeds where it was finally being reported, I personally had to retain, I was still running Bloomberg, I still — I had to retain security people to look into threats that some of our Jewish Op-Ed writers were getting, because you Jews steal money, you can imagine the kind of nuts that are out there, you know that.

And I hardly need to tell you that even going back further what kind of race is garbage people like Earl Caldwell used to get in the mail every time he dared write a story exposing police brutality or whatever. I’m not saying – I know anybody in their right mind denies that it happens and I will — I personally, and look, man, and you guys know I’m not defending any of that nonsense. I’ll even go as far as to say, yeah, there may have been an emboldened uptick. Although my personal theory, like when you see some of the graffiti and stuff, go for the simplest answer, 17:33, I personally think a lot of it is drug sixteen-year-olds, but that doesn’t make it right obviously.

But, look, you are projecting forward this sort of police state cracking down on minority reporters by dent of, you know, you’re not unreasonably based, I mean, I certainly grant you that, you’re not unreasonably based concerns about some of the people that Mr. Trump has surrounded himself with, now he has in his defense I suppose or for fairness’ sake, I mean, he has several times now said, look these people don’t speak for me and you’ve got to admit, it would be dumb and a waste of time and unfair to President Obama every time some nut on Twitter post an over-the-top, you know, Black lives matters or you know, kill all the White people, well, Obama is not obligated to now teach everyone. Come on.

Elie Mystal: Well, that’s incredibly different — that’s incredibly different though, right?

Charles Glasser: Why?

Elie Mystal: Like one of these institutions is and – well, one of these is a hierarchical institution that has, you know, holds these rallies that we are seeing pictures of, they have media outlets that they own, there are presidents —

Charles Glasser: Which institution is that, I am confused?

Elie Mystal: Oh, I mean, these alt-right organizations that have platforms in Breitbart and stuff like that.

Charles Glasser: Okay, let me ask you a question and being very serious. Do you believe that the alt-right is like an organized, centralized thing, like it’s a group?

Elie Mystal: Oh no, it’s not – well, sort of, I think that it is a conglomeration of loosely organized groups. For instance, you have these folks showing up at the rally that we saw pictures of earlier.

Charles Glasser: 200 people, yeah.

Elie Mystal: They all may be from different organizations.

Joe Patrice: This is the part where you try to say that the actual White supremacists that are cresting Trump to power aren’t really that important or there aren’t that many of them, or they don’t really matter, and you try to find some way to — you’re not trying to justify their behavior, but you’re trying to minimize their impact.

Charles Glasser: Well, I’m not minimizing their impact, I’m saying that silencing them and freaking out about them is not the way to defeat them, and here we go to our friend the First Amendment.

(00:20:10)

Elie Mystal: And that’s fair and that’s where I actually want to transition because I think you said something earlier that I wanted to get back to that actually speaks directly to this, right?

Charles Glasser: Yeah.

Elie Mystal: To what extent does the fact that the last administration reflected and built a legal case for a lot of troubling interventions in media; wiretapping as you said, so on and so forth? The way in which those sorts of executive overreaches became somewhat institutionalized over the last eight years, what concerns should we have that those now in different hands can be utilized in a much more destructive way?

Charles Glasser: Okay. Well, actually, that’s a great question, and this is why, believe it or not, I’m actually fairly optimistic. And this goes even to the more overarching. The Margaret Sullivan overt the post, formerly the ombudsman at ‘The Times’, public editor at ‘The Times’, wrote a very piercing I thought column about this. Holding the TV executives to shame really, to scorn for their having this off-the-record meeting where allegedly Trump, because I wasn’t there but he really dressed them down and yelled at them. And Margaret, I thought did a great job in pointing out how these cozy off-the-record things — that’s not journalism, that’s not how we do it.

You are absolutely right that the — you want to talk about normalization. The fact that DOJ or DIA or CIA or NSA or any other branch of the government can go into a FISA court and pretty much get your phone records, you as a reporter, and actually try and do fishing or oppose as an associated press reporter, any one of a number of really despicable acts to try and pierce the protections for reporters that we’re supposed to be enjoying. And yeah, there has been a very bad precedent set for that, and at the same time I am kind of optimistic and I will tell you why. Because the people freaking out about — I mean I laughed when Trump snuck out of the — out of his golden plated, that monstrosity Trump Tower, that if somebody went in there. That doesn’t look expensive enough. Put some gold over there. They are really ugly thing.

So he snuck out right, and had a steak dinner and the press, the press pool freaked out because he didn’t bring them along. I thought that was very, very telling. And we have had too cozy and too kissy face, a relationship between national media and the administration, and we need to get back to some basics here. If you are a journalist, a politician is your sworn enemy, period. And our job is to cover an administration, not cover for it.

Elie Mystal: Yeah.

Charles Glasser: And our job is to — if he — Glenn Greenwald wrote really, really —  I don’t agree with Glenn on a lot of times.

Elie Mystal: I was just going to quote that, yeah.

Charles Glasser: Yeah. Glenn’s article was spot-on. It’s like —

Elie Mystal: It was great.

Charles Glasser: Dear Mr. Politician, f**k you. You need us more than we need you. We are going to cover what you say and do.

Joe Patrice: This guy just spent 18 months playing the largely White mainstream media like a freaking harpsichord, and you are confident, even hopeful that now, now they are going to start holding him to account. Really?

Charles Glasser: Oh absolutely. They are not going to get the coziness. They have no love for him. I mean, I got to tell you, look at his perspective and you could see if you look at his — I don’t want to play amateur psychologist, so I won’t say his sociopathic nature, I am just going to say, you look at his pattern of conduct, right? This is a guy who feels that they are all unfair and they are all stacked against him, right?

So when he meets with them he figures, well, what does he got to lose by playing hardball and let’s face it. Do you really think, honestly, Black or White isn’t the issue? Do you really think that any of the mainstream reporters worth half a grain of salt are going to start playing access journalism and cozy journalism, and start treating him nice-nice, the way he wants, because all he wants is public relations, he doesn’t want news. Well, that ain’t going to happen.

(00:25:09)

Elie Mystal: They are not going to start treating him the way he wants because what he wants is fellatio on demand, but that doesn’t mean that they are going to be nice to him.

Charles Glasser: Yeah, exactly, so screw that and screw him. Cover him, cover when he says —

Elie Mystal: Well, that doesn’t mean that they are going to be nice to him.

Charles Glasser: Say what?

Elie Mystal: That doesn’t mean they are going to be nice to him. They already play his game. He already played them, as you point — as we are all pointing out, he already played them with the off the record bullshit, with the network television anchors. He already played them with the Hamilton tweets. He is going to continue playing them with the Hamilton tweets, and I have absolutely no confidence in the ability of mainstream media to hold him accountable for his actions. I don’t even have any confidence in their ability to accurately explain what he is doing.

Charles Glasser: Well, I don’t know, I think Fahrenthold has done some great reporting and the journals, I think there is some good reporting out there, and I think — I mean, provided that the news organizations have the resources to do it, I think we are going to see a return and hopefully a renaissance of investigative reporting and hard-hitting reporting about a government, because you sure as fuck didn’t see that with Fast & Furious, you sure as fuck didn’t see that on Operation Choke Point, you sure as fuck didn’t see that on what they did to James Risen. You sure as fuck didn’t see it on the Department of Justice slow walking the voter suppression allegations that were made in — with the Black Panthers standing with nightsticks in front of a voting booth.

And whether you think those stories have — whether you think those stories have granularity or not isn’t the point, the fact is that the news organizations did not dedicate any kind of real resources to those. And I am hopeful that, okay, now we have got a guy in the White House who is really bent over, I think they are in a good position to really sock it to him hard. They are not going to get access journalism.

Elie Mystal: Can I ask a question this way though, why do you think that that matters? For instance, this weekend apparently the mainstream media just figured out that fake news was a thing. Welcome to the fucking party, right?

Charles Glasser: Yeah, I know. And they still can’t figure it out. Have you seen what their list of corrective measures is?

Elie Mystal: Yes.

Charles Glasser: They are begging to be pone still, yeah.

Elie Mystal: So why do we even think that what the media — and we can disagree about whether or not the media will be effective, has been effective, can be more effective in the future, why do we think that it’s going to matter what the media says about this guy?

Charles Glasser: Well, that’s a great question, and I had a conversation with somebody recently about this. Actually it was — Judy Miller came to my — I teach graduate school by the way at the NYU Graduate School of Journalism, and we did a module on confidential sourcing and what it’s like to go to jail. So she can speak very directly to that. And afterwards we had a conversation and we were all talking about has the press lost its ability to impact, which is really what you are asking, like so what if the press reports it.

And I have to say, I am of two minds about that. I haven’t come down really hard one way or the other. I think it takes some real thought. But let me answer the question with a question, is it the media’s role to be a kingmaker? Is it the media’s role to decide who should and shouldn’t be elected, or is it the media’s role — do you guys know, the first canon of the SPJ Ethics Principles, do you know what that is?

Elie Mystal: No, no.

Charles Glasser: No, I am taking that silence as a no. The SPJ canon, the first rule, Seek Truth and Report It. That’s the rule, the canon. It’s not trying and influence the outcome to what you think is better, because that’s paternalism, that can’t be right. And it isn’t try and install in power people who will serve your interests. That’s not it. That can’t be right. Seek Truth and Report It.

Now, your question about — and look, this is what a lot of people felt even going into sad, sad Wednesday was, how can America buy this? Are we that stupid? And let me ask you, Elie, this is a great — I mean this is something that I have been wrestling with. I see so many people saying, oh, fake news, how can people be so stupid? Surely you are not suggesting a literacy test for voting.

(00:29:57)

Charles Glasser: I remember the last — I am old enough to remember the last time that happened; we called it Jim Crow. So instead of asking black people to read some Medieval Latin document and then say, oh, there boy, you can’t vote. So now it’s, well, do you read The New Yorker; oh, you don’t know David Remnick, sorry, you don’t get to vote. And I am actually getting that.

Elie Mystal: I don’t even see how you are going from one to the other.

Charles Glasser: I am actually hearing that.

Joe Patrice: No, I actually do see the issue there and I think that there is obviously something very troubling about saying that people who aren’t —

Elie Mystal: Can you whitesplain that connection for me though?

Joe Patrice: No, the argument is that the way in which people are trying to deal with fake news is by saying, oh, well, if you don’t — you don’t have these certain academic requirements and read these sources that are the good sources, then you shouldn’t be able to vote, and that is incredibly fraught with the opportunity for all sorts of mischief, that is what Charles is talking about, which I think is fair.

I also don’t —

Charles Glasser: And indeed, if you look at the guidelines that are being bantered around, I know — look, I have litigated many constitutional cases, and you guys would be the first to admit that were it state action, they would fail the constitutional challenge for being content-based, overbroad and not narrowly tailored. No doubt about it, no doubt about it.

Elie Mystal: Nobody is talking about state action.

Joe Patrice: No, right, but the issue is — the problem here is not any of these fake news in a lot of ways, because I also don’t think — one thing about how Facebook operates is, it’s not like that fake news was getting in front of people whose minds were potentially getting changed; it is the way that algorithm operates. It’s a bunch of Nazi sharing Nazi stuff.

Charles Glasser: No, you are quite right, and I was joking all through the election that there were probably maybe 50 people who were undecided the week before the election.

You are quite right and there is a lot of confirmation bias and indeed in social media people tend to read the things that they want to read and with which they agree. But the larger point though, beyond fake news and social media is, I hear people decrying, why aren’t I — these are media people saying, why didn’t we have any impact? Why didn’t they listen to Fahrenthold, why didn’t they listen to this guy and that guy exposing Trump as a lousy businessman, as a conman, as a fraud, these are all their adjectives, but they are all based — they are not without some foundation, right, I mean you will agree with me there, right?

Elie Mystal: Yeah.

Charles Glasser: Yeah. So why didn’t we listen? Well, Americans must be dumb, and I find, personally, I find that approach with regard to free speech and in general to be horrifically paternalistic, horrifically dehumanizing.

Believe it or not, you have to go back to John Locke and people like that, but you have to be committed to the idea that false speech must be heard so that we can find true speech, and that you will not know the truth unless you have falsity by which to compare it to. This is the touchstone. This is the motive force of the Constitution, at least with regard to free speech.

Elie Mystal: Why can’t both things be true? Why can’t we both say that we respect and defend speech in all of its different outlets and expressions?

Charles Glasser: With some limitation, obviously.

Elie Mystal: Even false speech. Why can’t we both say that we defend even false speech and say that Americans are fucking idiots, like why can’t both of those be true?

Charles Glasser: Oh, I think they can be true. I don’t think — you are not going to get a whole hell of a lot of an argument from me about that. I mean it’s a republic, if we can keep it, and how we have managed to hang on for these 200+ years. I mean, we have had some pretty bad ideas and some pretty bad ideas have been codified.

You are the last person I would lecture about Dred Scott or Buck v. Bell. We have had some pretty bad ideas in the past. The Gulf of Tonkin Resolution, not exactly our finest hour, but we are going to make mistakes and it is up to a free and independent press to point out those mistakes.

The thing that’s really — because I did want to make sure that we touched, at least I touched on something that you had raised earlier, and that’s Trump’s — when he was — he was throwing red meat to the groundlings, if I can mix my metaphors a little bit. When he was like, we are going to open up the libel laws, and everybody freaked out.

(00:35:04)

A very good friend of mine, and I commend you to read it, it’s in the New Jersey Law Journal last week, Bruce Rosen; a really terrific guy and a very skilled media litigator and also a former reporter, wrote an article about how remarkably difficult in practical terms it would be to move backwards from Times v. Sullivan. I think it would be almost impossible. I haven’t really put my mind to it, but I think it would be almost impossible to draft legislation that would not be unconstitutional, the legislation trying to do that, and there’s also a little bit more optimism in another sense to be had there.

Look, another disclosure, I am a neurotic Jew, so my default position is optimism. It’s like, well, it could be worse. That’s just my nature. And I think one of the things that — really there is some light at the end of the tunnel there, and I don’t mean to speak cruelly about somebody, but here I go, look, I don’t think Trump — I don’t think he has what we would call book smarts. He doesn’t have the ability to sit down and burrow through 300 pages of legislative text, right, you grant me that?

Elie Mystal: Yes.

Joe Patrice: Yeah.

Charles Glasser: Okay. And this is a guy who at best would delegate things out. And I personally, and I say this based on intuition, no inside information, just observation and intuition, I think that the legislative portfolio will be largely guided by Mike Pence, who is far more conservative than I would ever be in a nightmare on so many issues, but let’s put our grownup hats on for a minute and go back to a little realpolitik.

You don’t get to be a Congressman for 18 years and then a Governor without learning how the sausage is made, you just don’t. You learn how to make deals. You learn how to make things work. You learn how to reach across the aisle. That’s number one.

Number two, it is and it has been pointed out here and there, it is worth noting that Mike Pence was journalism’s best friend in the House for many years, and not once, but twice sponsored a federal shield law. Okay?

Elie Mystal: It’s important to point out that Mike Pence was a former radio talk show host.

Charles Glasser: Yeah, that’s great. I mean, I can’t imagine what that was like. Was it the daily corn report? I am kidding. I kid, that’s what I did. The corn, Indiana corns, I don’t know, what else do they grow there? Corn, right?

Joe Patrice: Yeah.

Charles Glasser: And then you have his 38:16 to ‘The Times’ that, well, I never thought about that. And I think, Joe, I think I sent you the papers and I have noted this in social media with some irony and amusement. There’s a young lady who is a political consultant in Talking Heads named Cheri Jacobus, and she is suing Trump.

Elie, did you know Trump is being sued for libel right now?

Elie Mystal: Yes.

Charles Glasser: Yeah. And it’s in New York City.

Elie Mystal: I don’t know the details of the suit, but I knew that it was happening.

Charles Glasser: Oh yeah, yeah. No, she filed the complaint, and he moved for dismissal §3211, and I read his papers. Now, his papers basically defend on hyperbole and rhetoric, which doesn’t surprise anybody, because he said all these nasty things about her, she is a dummy or something like that. But I found it very, very interesting and amusing that his lawyers did a competent enough job and they preserved the issue of actual malice. Donald Trump preserved the issue of actual malice in his motion to dismiss and in his reply papers.

Just in case he loses his motion to dismiss and we live in New York, we live in interlocutory heaven, so he can raise the actual malice argument to the first department if he had to. I find that kind of ironic. There’s no estoppel in the legislative sense. But you look at what a guy says and then you look at what a guy does. I mean that’s true for any of us.

(00:39:52)

And look, he has got so much on his plate. I think I agree with a lot of folks who think he had no idea what he was getting into. He had no idea how big the job was. And frankly, there are so many more pressing issues facing him that the idea that he is going to wage some jihad against the press is — let’s just say it’s good to be vigilant, but I think it’s way premature.

And there’s another point, in a conversation, I can’t remember with whom; I want to say Ken Auletta, but I could be wrong, and there’s something else you have got to remember about this guy’s personality. If you thought Obama was a narcissist, you ain’t seen nothing yet. This is a guy who craves attention. This is a guy who wants to be loved and respected. He wants people to point at him and go, look, there is Donald Trump. He really wants to be loved. I mean, it’s a weird neurotic way he goes about it, but this is a guy who craves attention. He loved being on television more than anything else.

Joe Patrice: Well, he is going to get a few years of it.

Charles Glasser: And I can totally see him actually saturating, saturating the airwaves with press conferences or direct to audience means.

Elie Mystal: Facebook Live.

Charles Glasser: Pardon?

Joe Patrice: Yeah, Facebook live. His version of fireside chat, which I assume involves some garish gold-plated thing.

Charles Glasser: Well, he already did one and it was fairly dry, I don’t know if you saw it. He had that little YouTube video.

And POLITICO did a pretty good article about it, and they were actually very, very fair, because some people in the press were a little concerned that, oh my God, we are going to have an official state Oregon and we are going to have an official state sort of media outlet and it will be Trump TV. And he will — and as you pointed out, he would hardly be the first president to reach directly to the voters. And there’s nothing wrong with that.

Here’s the caveat, and this indeed is a huge First Amendment question, where it’s something to be vigilant about. I personally have no problem with unofficial channel. If Trump wants to make his own little videos or do his tweets or have his radio speech or even a podcast, God only knows, I have no problem with that. The only point is it becomes a problem when it is the only channel available.

See, this is the difference between Communist China and the Soviet Union, the old Soviet Union, and even really today, Russia today is — ostensibly it’s independent, but it’s a house organ and opposition viewpoints are not tolerated in Russia.

I mean, you know it’s going on in Turkey, right? They have sent armed troops to take over newspapers and radio stations. And being an international lawyer and having the experience I do around the world in the oppression of free speech, I think we are a long way off from that. I think even the people you fear as Trump supporters would revolt if Trump sent the National Guard to take over ‘The Washington Post’, I have got to tell you guys, the libertarians, you know what I mean?

Joe Patrice: Yeah. No, and I think that’s true. I guess we are coming close to — we are a little over what we usually do, but the one thing I wanted and this kind of segues off of that to throw back in is, and this is from a Facebook conversation that both you and I were on, actually about the Glenn Greenwald piece. To the extent you are thinking that there could be better investigative journalism like Greenwald is talking about, is there some fear that the access journalism might just be baked in to the existence of these publicly-owned news entities who have to answer to shareholders, who therefore have to put on the cozy interviews, because that’s what people flock to watch, and that it’s really just these private institutions like ‘New York Times’ that have the latitude to do the investigative, hard-hitting stuff?

Charles Glasser: Well, first off, ‘The New York Times’ is a private institution, only to a very limited degree; you know it’s a publicly traded company man.

Joe Patrice: Well, yeah, yeah, fair.

Charles Glasser: And that’s what 44:40 is screaming about Citizens United. Corporations shouldn’t have speech rights. It’s like, dude, corporation signs your paycheck.

Joe Patrice: Well, put aside that nuance, I meant more that is there a risk that the entertainment, infotainment kind of take over of the culture of the media consumer has kind of spoiled the crop for some of these larger outlets?

(00:45:10)

Charles Glasser: Oh, I see what you are saying. Or put another way, is there any profit to be had in investigative journalism? I mean that’s really I think what you are asking.

Joe Patrice: Exactly. Yeah, that’s a better way of saying it.

Charles Glasser: Yeah. And indeed that is a huge problem. Some folks, to their great, great credit have tried to step in and fill that void by removing the profit motive. I am thinking of Paul Steiger and ProPublica. I am thinking of Omidyar and The Intercept. Whether you like the quality or editorial slant is a separate issue, but these are ostensibly organizations doing investigative work. And the Daily Caller Foundation, on the other side of the political spectrum. These are organizations that are trying to free themselves of the profit restraint that they obviously have. And Bezos is not running a nonprofit, but he sure is dumping good money into ‘The Post’.

I am not sure though that — I wonder aloud whether you are putting the cart before the horse, that people want the access journalism and therefore that’s why Washington goes the way it goes. I am not entirely convinced that that’s it.

I think that access journalism is really a function of a couple of things. One, lazy journalists. Two, I would say in the past 10-15 years the emergence of journalists as celebrities, where reporters want to be inside, they want to be kingmakers, they want to be part of the conversation rather than reporting the conversation.

An Ezra Klein or a Matthew Yglesias would have been unthinkable 25 years ago, because they don’t have the chops, they don’t have the experience and background to write about the White House and government, but the star making machinery of the Internet has allowed people like that. And this isn’t about my liking them or not liking them, but it has allowed people who don’t have real reportorial skills to become celebrities.

So the access culture of journalism, and particularly political journalism, that’s important to keep in mind. I am not sure that it’s profit-driven, because there are some terrific reporters out there. I am thinking of the folks at The Associated Press in particular who don’t play that game. They go out there and cover their stories. Now, they don’t get the big bang that a BuzzFeed or a Vox might get, and perhaps that’s problematic, but I am not so sure that it’s market-driven. I am not so sure that access journalism is simply — well, that’s what people are buying. I am not going to say it isn’t, but I just don’t quite — I am not quite convinced that there’s that connect there.

Joe Patrice: Yeah, let’s hope there isn’t. Yeah, thanks for coming. We have been a little bit long, but hopefully everybody has stuck with us because this was a great, great episode, got a lot of stuff covered. Thanks for joining us Charles.

Charles Glasser: Well, thanks for having me guys. I look forward to, as always, reading your posts and reading Above the Law and seeing what kind of trouble and shit you are stirring up, both of you.

Joe Patrice: And again, let us know when you are in the neighborhood, because I at least am usually here.

Charles Glasser: You got it, yeah. All right guys, I am going to ring off.

Joe Patrice: All right. Thank you.

Charles Glasser: Bye now.

Elie Mystal: Peace out.

Joe Patrice: And thanks everybody for listening to this episode of Thinking Like a Lawyer. First things first, you should be listening to us through some subscription device, and if you are, you should give us a review on that device, because it helps us reach more people, share this episode wherever you can.

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Otherwise, we will talk to you on a future episode of Thinking Like a Lawyer. Thanks.

(00:49:52)

[Music]

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