This book tracks a particularly unsettling period in American press freedom. It begins with the turbulent presidential campaign of 2016 and then follows the escalating hostilities between the press and the president through the first year and a half of the Trump administration. The administration’s war with the press comes with no clock. By the time you read this, much more will have happened: new skirmishes with reporters, a scattershot barrage of “fake news” tweets, another round of calls for the scaling back of press freedom. But the events that unfolded in the last months of the campaign and the first months of the new administration were critical. It was in those days that each side, and America, came to understand what the terms of engagement were going to be—what shape the attack on the American press would take and how the press would respond.
I have spent a decade and a half as the newsroom lawyer for The New York Times. I set out with a modest objective for this book: to let readers look behind the scenes at some of the most consequential reporting done by The New York Times and to understand how, sometimes quietly and sometimes not, the law protected journalism, shaped it, and, in a more fundamental way, made it possible. I did not want this to be either an abstract treatise on the First Amendment (although the law is front and center throughout the book) or a blind rant about Trump (even though the president fares poorly in virtually every chapter, at least until Harvey Weinstein shows up). The reason for that is simple: America’s tradition of press freedom will not survive if the First Amendment strikes people as abstract and disconnected from the real life of the country or nothing more than a vehicle for advancing some political agenda. In journalism, the First Amendment happens at ground level, empowering and illuminating choices that journalists make every day in their pursuit of the truth. That is the story told in these pages.
Not everything can be told here. I am a lawyer, and that means there are confidences that cannot be shared. I work with journalists doing cutting-edge reporting, and that means they have sources who have to be protected. I have played a pivotal role in the rescue of journalists when they have been kidnapped or detained overseas, and some of the details of what happened remain secret. But within those bounds, I have tried to honestly capture the real interplay between lawyers and journalists in the nation’s most important newsroom. This is not a lawyer-as-hero book, as much as I wish it were. I was wrong about Trump for much too long. I held back at times when the press should have been making its case more forcefully, either in the court of public opinion or in a court of law. I misjudged how polarized America had become on the issue of press freedom.
For most of my time at the paper, to be a lawyer for The Times was to occupy a fairly tidy corner of the First Amendment world. People complained about stories, detected what they were sure was bias, challenged (sometimes correctly) our facts, and railed against our editorial positions. A few of them were even motivated to sue. But, even among our harshest critics, few people seemed to question that press freedom mattered, that we were all better off with a press that was free to report inconvenient truths, take on the government, and speak up about the excesses and missteps of powerful companies. Now we live in a time when the president demands that laws be changed to rein in First Amendment freedoms and denounces the press as the enemy of the people, a stain on society, traffickers in “fake news.” The problem is not so much that he says all of that; the problem is how well it plays, delighting crowds that, in a frenzy, turn to jeer the assembled press corps covering the event.
In the days when I was completing this book, a gunman opened fire in the newsroom of a newspaper in Maryland, killing five people. The White House press secretary declined to say that the press was not the enemy of the people. One of the president’s lawyers, Rudy Giuliani, went on national TV to declare “truth isn’t truth.” And the president himself asked the Department of Justice to open a criminal investigation to find out the identity of “Anonymous,” a senior government official who had committed the “crime” of writing a Times op-ed capturing the president’s erratic behavior, impetuous policy choices, and disregard for the rule of law.
Much of what follows here is not rendered in the dark colors of troubled times. The book is often irreverent, even funny (yes, even by a lawyer). Here’s the thing: It’s a joy to be a newspaper lawyer. Zany things happen, crazy people emerge from nowhere, and little is as intoxicating as being present at the moments that world-rattling journalism is taking form. Lawyering for a newspaper may not be a labor of love, but it’s pretty close, and I have tried here to capture the spirit that animates the work.
None of which should distract anyone from the real point: bad things are happening to democracy, and we need to do something.