Has There Ever Been a Worse Time for Journalism?

12:58Nayeema Rahman:One more beat on search warrants. 45 years ago, Congress passed a law strictly limiting the use of search warrants against reporters and news organizations because of how intrusive they are. Essentially, what the statute says, and I won't get into all the details, is that if you want information from a newsroom, if you want information from a reporter, you have to serve a subpoena. And this case shows why that's important. Hannah's stuff is already taken. It's already in the hands of the government by the time lawyers get involved. In our case, we're opposing those subpoenas in court and have done so successfully.

13:38Nayeema Rahman:I think that there was a time, or I know there's a time, I would never have thought of having to worry about a warrant. I'd never have to worry about somebody searching. In fact, people would call me in the run-up between the election and the inauguration. You know, what do we do if 50 FBI agents show up at the New York Times? And the answer was always, be sure to videotape because we're going to have an incredible civil suit against these people. It just seems so unlikely. After Naitanson, I really have to think about it now. When I first received the call that these subpoenas were about to be issued, one of the great things about working at the New York Times is people know before they show up.

14:23Nayeema Rahman:That I had to wonder, when you say they're going to search subpoenas, that's the right word? Yeah. And as it turned out, it was. It was. But I did have to take a minute and think about what if there are warrants. Yeah.

14:34David McCraw:So thankfully not search warrants, but these subpoenas show up, then you go to court to basically fight against the subpoenas and say these journalists don't need to testify before a grand jury. And this is kind of an overreach by the administration. And that happens on July 23rd or so? So as soon as I hear that these subpoenas are being served, I'm about to get on an airplane, so I'm going to be doing this by email.

15:01Nayeema Rahman:But I contact our outside lawyers, Julie Edelstein and Dave O 'Neill, who immediately spring into action and do a terrific job over the next few weeks on this. But they then start engaging with DOJ about the subpoenas, get them adjourned so nobody has to show up, try to convince the DOJ to withdraw the subpoenas. When that doesn't work, we have to go ahead and make our motions to the court.

15:30David McCraw:Okay. And it's like a motion to dismiss the subpoenas? Motion to quash, yeah. Motion to quash.

15:34Nayeema Rahman:Yep.

15:34David McCraw:Okay. And the judge basically—

15:35Nayeema Rahman:You don't know how many people say, how's your squash going? I'm going squash, squash ham. I know. You're quashing.

15:40David McCraw:Well, the judge on the bench, this Judge Arun Subramanian, he hears these kind of oral arguments about this motion. And then he basically says, like, you can either let the court quash it or you guys can withdraw the subpoenas to the DOJ.

15:55Nayeema Rahman:That's what he says to the DOJ, yes. Yes. They want to hold them in abeyance. That's the tension. What is abeyance? Essentially, they want to have the subpoenas still pending.

16:05David McCraw:Got it.

16:05Nayeema Rahman:But not enforce them until some future date.

16:08David McCraw:Until they have a grand jury convened or something?

16:10Nayeema Rahman:I mean, this was just unacceptable to us to have them hanging over our head.

16:14David McCraw:Yeah. What is this? I mean, you wrote the serving of these subpoenas is a brazen act that amounts to keeping the public from knowing what's happening in their country by intimidating journalists out of doing their jobs. That abeyance, like that desire to hold them looming, certainly suggests a certain amount of intimidation.

16:29Nayeema Rahman:It's this condor shadow from the horror movie that is sort of hanging over you all the time. I don't know the motivation of anybody in the government. They don't tell me that. But when I look at the facts here, how quickly they were served, what the nature of the story was, it does seem that they were really intended to try to intimidate, to push back. And, you know, they send a message not just to reporters. They send messages to sources.

16:55David McCraw:Yeah.

16:55Nayeema Rahman:And then both – whether it is a source that decides not to tell reporters important information or whether it's a reporter who decides to pass on a story, then the public is deprived. The loser here are people who read and watch media.

17:13David McCraw:I mean, some people might look at this whole story, David, and say, look, ultimately, like the courts, like the whole system worked. The reporters reported what they knew. The government got upset. They tried to kill the story. Then they couldn't kill the story. They tried to react to the story. The court upheld the First Amendment and protected the journalists. So a lot of people might be listening and say, like, why should I care? It seems like the courts are kind of doing their job in these cases.

17:37Nayeema Rahman:You raise a really good point. The system did work, but we should never have been there because the system should have worked earlier. It should have been a constraint on justice.

17:46David McCraw:Those subpoenas should have never been served.

17:48Nayeema Rahman:Right, exactly. And, you know, there's no question that if people come over to your house and spill a thing on your carpet, you can clean it up, right? You clean up every time. They come every night, but you shouldn't have to do that. Yeah, okay, the cleaning system works. But no, we have expectations. They're called the Department of Justice for a reason. And then let's face it, the New York Times stands in a really powerful position in respect to others in other news organizations in this country. This kind of thing is crushing for that local paper, nonprofit news organizations trying to get by.

18:29Nayeema Rahman:Independent journalists of no legal department. And so it's important that we see our role as to try to back off these attempts that may work against others.

18:41David McCraw:I like that analogy of the unlikely house guest who's coming over every day spilling. Also, I'm curious about this analogy if the stain is completely gone. Because the DOJ, the Department of Justice, said, make no mistake, this investigation remains ongoing in the case of these subpoenas. and said, and we will pursue justice against those threatening national security by leaking classified information, a serious federal crime. So what do you hear in that statement? I should say what the Department of Justice has said. Our problem is not with the press. It's with leakers, sources, basically. I mean, how do you read that comment from me?

19:14David McCraw:Okay.

19:15Nayeema Rahman:Two things here.

19:16David McCraw:Yeah.

19:17Nayeema Rahman:A million years ago, I ran for public office, for local office, right? Where? In Ulster County, New York. Okay. And I actually beat somebody in the race. I finished fifth out of six. Oh, that's good to say. But, you know, the day after you lose, you're talking, I'm going to run again. I'm going to win and so forth. And, you know, you take that kind of, I never ran again. And, you know, obviously DOJ took a blow. And if I'm them, I'm standing up bravely saying, that's just a speed bump. I'm continuing on my way.

19:46David McCraw:In modern vernacular, we call that delulu, like delusional reporting.

19:50Nayeema Rahman:But the other thing is this, and this is the more important one, is that the investigation is part of a narrative of not trust the press, that the press is against national security, the press is against the best interest of the country. Totally false. But it helps convey that. And so much of what goes on, even if it doesn't work out for the administration in court, still helps with that narrative of trying to sow distrust.

20:18David McCraw:What you're saying is really important because there is the court of law and there's a court of public opinion. And it's like in our current news cycle, these stories keep going. People, you see it one day, you might forget about it, you might catch one end of it, not the other. And in the court of public opinion, who do you think won this case? Or do you think that the court of public opinion even stayed glued to it?

20:38Nayeema Rahman:You know, it's really hard to tell because we all live in silos and we have to kind of work at getting outside that silo. We have to go watch Fox. We have to go to places we don't normally go and try to understand how it's playing elsewhere. Obviously, the people who speak to me, it was 100 % success. A lot of love, Sean. But this is one thing I will say is that I was hearing positive things from people who don't really care about these issues, who may be more progressive, more liberal. But this is not their issue. Yeah. But there was something about the idea that the judge had stood up to the Department of Justice, said to the Department of Justice, you have to follow the law, you have to follow the rules, and that there was pushback.

21:25I think it also helped on these facts that this was not like a classic national security story.

21:34David McCraw:Yeah.

21:35Nayeema Rahman:It wasn't about the war in Iran. Yeah.

21:37David McCraw:This is in the Pentagon Papers.

21:38Nayeema Rahman:It was in the Pentagon Papers, exactly. Exactly. And so I think that people really wondered about why there would be any leak investigation at all on this particular story.

21:49David McCraw:Okay. I want to get into what's normal or not in the various administrations and talk about the right posture between the government and the press, if I can use those terms. But first, I feel like we need a little bit of 101, legally is 101. And I have to prevent you from getting, I know you love the First Amendment. I know you love FOIA. You just can't get too nerdy.

22:08Nayeema Rahman:Okay. All right. I've been warned. Keep it moving.

22:10David McCraw:Okay, so this is like the David McCross, Smart Girl, Dumb Questions school for kids who can't do law good and can't do other things good too. Do you know the reference?

22:18Nayeema Rahman:No.

22:19David McCraw:It's the movie Zoolander.

22:20Nayeema Rahman:Oh, okay. It's been a while. It's been a while. Do you know what the worst thing is? Yeah. When you said Zoolander, which is a movie my son and I really liked in the day, I thought Zootopia, and I'm going, oh, really? There's Zootopia 2, too. And it's about intellectual property. People should watch it. Oh, yeah, really?

22:35David McCraw:Oh, gosh, I didn't know that. Okay, so what does the First Amendment actually say?

22:39Nayeema Rahman:Well, the First Amendment simply says the Congress shall make no law, abridging the freedom of the press speech, and has some other clauses in there that we can skip over for the moment. And it doesn't give much guidance of any sort. But the modern interpretation and the interpretation that's been with us for now at the Supreme Court for more than 100 years is really that there is a guarantee of the right to publish. And that includes the right not to be sanctioned after publication. Not merely the right to publish but also to be free of government punishments. Of recourse basically.

23:18David McCraw:a retaliation for publishing. Okay. And it's not an unlimited protection, this First Amendment.

23:23Nayeema Rahman:That's true.

23:24David McCraw:It's not. There is some stuff that is unfit to print, as they would say. So one of the limitations is defamation.

23:32Nayeema Rahman:Well, now we're going to get into that law nerd thing, and I'm not going to do it. There are rules around when someone can bring defamation suits successfully, and that's been built up since 1964 with Times v. Sullivan. In the 1960s, Southern office holders were using libel suits going to court to try to silence the press. They were bringing suits against the New York Times and other northern media to try to get reporters out of the South and stop talking about the abuse of civil rights, abuse of voting rights, and all the rest. And the way they were doing that was to go into local courts and win huge verdicts, huge verdicts against the news organizations.

24:17Nayeema Rahman:State law governed libel until 1964, only state law. Sullivan was a local commissioner, city commissioner in Montgomery, Alabama. The New York Times published an ad, not even a story, an ad by supporters of Martin Luther King. And that ad had some representations about the abuses that were going on in Montgomery, police taking on student demonstrators. And Sullivan's not mentioned, but he said the criticism of the police defames me because I'm the police commissioner. Thirty-five copies of the New York Times appeared in Montgomery, Alabama that day, and he won$500 ,000 for his fellow citizens.

24:55David McCraw:So Sullivan, this dude in Montgomery, Alabama, the police commissioner, wins this case against the New York Times in 1960-something. And it goes all the way up over four years. Four years, right?

25:05Nayeema Rahman:In 1964, and the Supreme Court essentially has seen enough. They're not going to allow these kind of suits to be weaponized to try to silence the press. And they read the First Amendment to impose restrictions on what state law can do about libel. And that's where we get the actual malice standard. But that becomes an important way, important break against people who are going to use libel suits to bully a free press.

25:32David McCraw:Yeah. And then it set the standard of actual malice. Correct. And the actual malistander, let's see if I remember my training. All right. So let's see. So basically it's like you either need to have known that what you're publishing was false or have a reckless disregard for what is true or false.

25:48Nayeema Rahman:Well, look who's being a law nerd, not me. That's it. Right?

25:51David McCraw:That is what you –

25:53Nayeema Rahman:So, I mean, the way I think about it is that if you are a public figure or you're a public official and you sue a news organization, that you have to essentially prove something pretty close to willful lying. It does not protect lying. People will say that all the time. Oh, Sullivan's so terrible it protects lying. Contrary to that, it does not protect lying. That's when you lose. You lose if you lie. So if you know it's false or you entertain substantial doubt about its truthfulness, then you can lose.

26:22David McCraw:In addition to actual malice, though, you also have to prove that what's being said is defamatory. And you actually, you know, unexpected, became somewhat of a heartthrob, a news sensation, a viral sensation, when you wrote a letter to then Donald Trump, the candidate's lawyer, around a defamation suit. And I will ask you to read it. So basically, this is in fall of 2016. The New York Times has published an article entitled, Two Women Say Donald Trump Touch Them Inappropriately. Yeah. You hear back from Mark Kasowitz, Donald Trump's lawyer, who says this is libel per se. And he asks that you remove it from the website, issue a full and immediate retraction and apology.

27:08David McCraw:And I'll ask you to start reading at your answer.

27:11Nayeema Rahman:We declined to do so. The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host request to discuss Mr. Trump's own daughter as a piece of ass. Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump's unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions has already created for himself.

27:44David McCraw:So what you've done in that first paragraph is basically say, you know, this isn't defamatory because nothing that is here actually doesn't fit the characterization of things that you've said elsewhere or the way that you've presented yourself, whether it's locker room talk or grabbing women by the whatever. And then you go on to describe in this letter the important work that reporters do to do their diligence before reporting a story. And I love how you end it. You say, like, come, sue us.

28:09Nayeema Rahman:Yeah. Right.

28:09David McCraw:And that letter was like kind of heard around the world. Yeah.

28:13Nayeema Rahman:Did you expect that? I did not expect that, but it was, it certainly was invigorating to see people from all walks of life say, thank you for doing that.

28:22David McCraw:There have been, if the case is dismissed, which has been the case in other defamation suits brought against the New York Times, most recently with Justin Baldoni, who I knew you were going to get there. I know. The Blake Lively, Justin Baldoni drama, if you've been sleeping on it, I don't know what you've been doing. They had a big fight while shooting a film whose name I can't even remember right now because it was so bad.

28:42Nayeema Rahman:It ends with us.

28:43David McCraw:Yeah, it ends with us is the name of the film. It's so funny because I'm probably more the target audience, but you've probably had to spend more time with that film than I have. Justin Baldoni, the actor, sues the New York Times based on Megan Toohey's reporting about what Blake Lively alleges was a kind of pattern of intimidation, abuse, harassment against her on set. He sues unsuccessfully. And then you win that motion to dismiss, and this actor has to pay the New York Times legal fees.

29:14Nayeema Rahman:Correct. Yeah. Because of slap?

29:16David McCraw:What is that?

29:17Nayeema Rahman:Yeah. So under New York law, that if a case is brought without merit, designed to silence the press, then the losing side, that is the person who brought the suit in this case, has to pay our legal fees. And that's what was just decided the other day, that the judge said that Justin Baldoni and his production studio needs to pay all the money we spent defending that suit.

29:44David McCraw:Is there ever a situation in which, like, upon winning a motion to dismiss, et cetera, with President Trump, Donald Trump, the individual, not the administration, that the New York Times or others would say, okay, now you should pay us back our legal fees?

30:01Nayeema Rahman:It has happened. It did happen. With who? Donald Trump wrote us a check for$392 ,000.

30:06David McCraw:When was that?

30:07Nayeema Rahman:That was in, he brings the suit in 21.

30:10David McCraw:Uh-huh.

30:11Nayeema Rahman:It's not a libel suit. He brings a suit saying that our reporters unlawfully induced his niece, Mary, to provide us with confidential documents. Judge rules in our favor. We file for all of our legal fees. Judge rules in our favor. and one day a check shows up.

30:31David McCraw:And he did pay on time?

30:32Nayeema Rahman:Yeah.

30:32David McCraw:That's interesting. Okay. We're going to go back to school. I know you're a real nerd on FOIA, but explain what FOIA is and yeah, without putting us to sleep. Go, David.

30:43Nayeema Rahman:Whoa, the impossible assignment. Mission impossible. It is. I said you were Liam Neeson. Here's how it works. I mean, look, the Freedom of Information Act is very simple. It gives every citizen the right, everyone the right, to ask the government for information from the executive branch. And the idea was that the people have a right to see the documents. It's not a right to information. It's a right to documents. And the thing has never worked well. Yeah. From the very beginning, it worked badly. That the natural instincts of bureaucrats is to keep secrets, is to not get in trouble. The court has endorsed, the courts generally speaking, have endorsed the worst behavior by the bureaucrats.

31:27Nayeema Rahman:And it hasn't worked out.

31:28David McCraw:It hasn't worked out because the courts are so willing to protect the government's slow and sleepy behavior.

31:34Nayeema Rahman:Look, a lot of people who end up in court over FOIA are not the New York Times. They are incarcerated individuals. They are the people who stand up at your city council meeting and say crazy stuff. And so there are a lot of—

31:50David McCraw:These people are filing FOIAs?

31:51Nayeema Rahman:Yes, of course they are. Oh, wow.

31:52David McCraw:I would never have thought as a – never before becoming a journalist ever thought about filing a Freedom of Information Act request. Yeah.

31:59Nayeema Rahman:So there's a whole range of people who do. And I think that the court becomes sympathetic that, oh, these must really be a burden on these poor civil servants who are trying to do their best. But there are ways to fix the system. We're not going to go into them. Yeah. But it just seems like it is something that we can all agree on that we should have an open government.

32:21David McCraw:We'll take a quick break. And when we're back, David McCraw is going to give a grade to each presidential administration. You don't want to miss it. Guys, today's sponsor, Dumb Question, is from me. I'm going to take the next minute to tell you a little bit about Smart Girl Dumb Questions and to ask you for your help in continuing to make independent, fact-based, and curious journalism. No, I'm not going to ask you for money. Here's what I need. I would love you to tell 10 of your friends about this show. Or 100. I don't know. Blast that reunion group that you muted. and definitely tell your mom and tell your mom to tell her friends too.

32:51David McCraw:Even if you don't like the show and you're just like hate watching it or listening to it, tell 10 of your friends to hate watch it too. Numbers are numbers, people.

33:00Nayeema Rahman:This episode is supported by FX's The Shards, a seductive drama from executive producer Ryan Murphy. Set in 1980s Los Angeles, the series follows a group of glamorous, deeply entangled high school seniors drawn into a life of wealth, beauty, parties, and access. At its center is Brett, whose reality begins to unravel when the arrival of a new student coincides with a series of mysterious murders. FX's The Shards premieres August 5th on FX and Hulu.

33:30David McCraw:It wouldn't be the David McCross School for Law or, you know, for people who don't do law good if we didn't give some grades. I'm going to run through the four presidents that you have seen. And I want you to tell me, actually, maybe three things. Like the most egregious act that they took against the press and maybe how frequently they tried to infringe upon the First Amendment in your estimation and then give them a grade.

33:57Nayeema Rahman:Okay.

33:57David McCraw:Okay. All right. So George Bush. I mean, this is interesting because this is post-9-11. National security is, you know, a rallying cry for the country. So George Bush administration.

34:08Nayeema Rahman:And you're going to find I'm a very soft grader here. and I'm probably not going to be able to come up with really good grades. But the—

34:16David McCraw:Were you a journalism professor before you went to law school?

34:18Nayeema Rahman:Yeah.

34:19David McCraw:Yeah.

34:22Nayeema Rahman:The Bush administration begins the whole national security state. And as a result of that, there is an incredible ramp up of secrecy. So we can talk about investigations that take place. And obviously the pursuit of Judy Miller and her sources was an incredible low point.

34:47David McCraw:And Judy Miller was a reporter who had reporting about Valerie Plame, a CIA operative who the government didn't want her to be identified.

34:56Nayeema Rahman:And she was held in contempt of court for like 80 days. She's held in contempt and she goes to jail rather than reveal a source. But it was part of a much broader fabric of secrecy becoming woven into government and woven into culture. The interesting thing about the Bush administration is that in that period of time, the State Department would send me abroad to talk about press freedom. and the embassies always encouraged me to talk about our fights with the Bush administration, which I thought spoke well to the administration or at least to individual diplomatic corps people in the Bush administration.

35:35David McCraw:What's the grade?

35:36Nayeema Rahman:Oh, governments should always get Fs because they never do enough. Well, you have to give a range here.

35:43David McCraw:So between A through F, what are you going to get?

35:45Nayeema Rahman:Yeah, so, you know, it's kind of a – let's go with C. A C. Yeah, we're going to use that as a marker.

35:50David McCraw:Okay, it's their first grade. Okay. The Obama administration, they have eight Espionage Act indictments, I believe, for leaks to the press.

35:58Nayeema Rahman:Of government employees or government consultants, not of the press. Yeah, not of the press, of leaks, yeah, of leakers.

36:04David McCraw:How was the relationship with the Obama administration? What kind of grade do you want to give them?

36:08Nayeema Rahman:They talked a good game. You know, people would ask me, okay, what's the shift? And the shift is that we would still get denied, our FOIA requests would still get denied, but now we get longer letters explaining why we did not. And I think that the Obama administration assumed because they were so sure of their rightness, they're so sure of being on the right side of the law that they couldn't understand why we would be unhappy. So the prosecution of leakers, I think, was a chokehold on information. But I think there was a respect that they should not come after reporters as such. Now, it wasn't 100 % because we saw the seizing of the phone records from AP, for instance, and we saw the seizing of records from a Fox News reporter, James Rosen.

37:03Nayeema Rahman:But I would give them credit because in the aftermath of that, Eric Holder, the attorney general, met with all of us from the press, and they changed the rules.

37:14David McCraw:They changed the rules. Okay. So what are you going to give them?

37:17Nayeema Rahman:Give them that B. You're going to give him a B? Okay, okay, great. Can I give a C plus? B for Barack Obama. C plus to B.

37:23David McCraw:Biden administration. I mean, I think the Biden administration, I'll just say from a journalistic lens, one of the challenges of the Biden administration was just access to the president. Correct. Which obviously culminated in the kind of weekend at Biden's imagery that we saw at the debate. But just having access to the president, he gave fewer press conferences. He was much more controlled in his relationship to the press than, say, our current president, whose number is in my phone and I'm sure in the phone of many, if not most, journalists at this point. So that was, I thought, a problem for Biden.

37:55But as it relates to the law, how did he do?

37:58Nayeema Rahman:Well, and I think you have to break this down. And I think this is where I'm struggling is that it's as if there are various courses within our curriculum, right?

38:05David McCraw:Yeah.

38:05Nayeema Rahman:I can't believe you're having me do this. There are various courses within our curriculum, right? Yeah. So somebody may be getting a good grade in math but not such a good grade in science. So the Biden administration gets superlative marks for its handling of the right of reporters to keep sources anonymous. They essentially just say we're not going to do that anymore. We are not going to pursue reporters. That was a breathtaking change in the law. We're not going to have a balancing test. We're not going to do it. The only exception is if you're engaged in crime, if you're an inside trader or you're doing something else, you're running a drug deal out of your newsroom, all bets are off.

38:47Nayeema Rahman:But they weren't going to do that. And it was so stunning that I'm not sure we kind of digest it when it first happened. And the run-up to that was that the New York Times, CNN, the Washington Post had had records subpoenaed secretly. And in our case, they had gone to Google, which provides our email service, and secretly tried to get records about four reporters, basically what you and I would think of as metadata, but header information.

39:23David McCraw:But that was during the Trump administration.

39:24Nayeema Rahman:It began in the Trump administration, but it continues into the first six months of Biden. They're not backing off initially. Yeah. What happens is that they've served this court order on Google to secretly provide the information. And Google, for whatever reason, decides that it's going to slow walk. They're not going to do it. They keep saying, you need to contact David McCraw. But, you know, I call up my email one evening, and there's this email from US law enforcement at google.com with two attachments. And, yeah, I know the first rule. You should not be opening any random attachments. I was like, wait, it's a fishing scam.

40:08Nayeema Rahman:I can help myself, right? So I click on them, and there are these two orders, one of which has my name in it that says that Google cannot tell anybody about this court order to get this information except David McCraw. And so that begins the whole process. So we fight back, and at the end, the Biden administration decides, stop, we're not going to do this. And the attorney general calls the publisher of the New York Times, A.G. Sulzberger, and myself, similar lineup from the Washington Post and CNN, to come to a meeting and essentially says, this shouldn't have happened.

40:44David McCraw:Yeah, okay.

40:44Nayeema Rahman:And then in the aftermath, that says, we're not going after reporters for their sources anymore. So they get really high remarks on that. And the thing you talked about, if we could actually go back to class, is that access was deplorable.

40:58David McCraw:An F. I think an F. An F. Yeah, yeah. F minus, honestly.

41:01Nayeema Rahman:Right. Okay. So, Brawl Grain? Overall Grain. They're going to end up down there somewhere in the high C range, I guess. High C range.

41:08David McCraw:Okay, great. And then now Trump.

41:14Nayeema Rahman:Well, it's not so much Trump as the administration because I think you have to look at things broadly. Yeah. Oh, for each of these, I'm talking about the administration. Yeah, yeah, yeah. And that it's hard to find the good news when it comes to the press in the way this administration has treated it. That's just kind of the fact of life. You know—

41:33David McCraw:Access is one. I mean, Ben Smith from Semaphore, our former colleague from The New York Times, said to me recently, like, the thing about Trump is, you know, he governs in public. Absolutely. If he's meeting with Zelensky, there's like—that's the meeting with Zelensky. There's not some secret meeting that happens before. I mean, there was the phone call.

41:48Nayeema Rahman:So, I mean, that's the one positive thing I was going to bring up is that, you know, you look and he says to our reporter, David Sanger, you know, you should come over to the Oval Office. Yeah. I'd love to. And pretty soon we have a team of reporters going over there. And they're there for four hours. It's, you know, it is a very, very, he is very open personally, even if some parts of his administration are not. So that's the one plus. But I think in terms of the overall environment for information, it's really never been worse.

42:23David McCraw:Yeah. You want to give him a grade?

42:25Nayeema Rahman:Well, you know, the course isn't over. The semester is still going on. Okay. Midterms? We're going to call mom in. We're going to be doing some conversation about how to— Because he might be failing completely. Right. He might be failing. You know, look, this is how I look at these things is that imagine in your mind what the perfect information ecology would be. What would be the ecosystem? What would it look like? And it would have three components. One is that there would be reasonable access to information the public needs to know. Second, there would be an independent press that's able to function and convey that information to the public.

43:02Nayeema Rahman:And third, there would be a public that was discerning. That's how democracy is supposed to look. Information is available. You have the mechanism to get it to the public, and the public is thinking about it and making decisions. You see in the current environment all three of those things being attacked.

43:17David McCraw:Yeah, some of those are secular changes where, like, the amount of misinformation, the, like, fragmenting the ecochambers is hurting the third of those things.

43:24Nayeema Rahman:Yeah, yeah. I mean, you look at the – and I blame the government for most of this – the chokehold on information that we need, we're not getting. When you look at that middle section, the independent press, you have to take into account both the attacks by the government on an independent press, but also the financial realities. And you have to look at AI. I would be remiss. My publisher would not be happy if I didn't bring up the threat that AI poses to independent journalism. And then you look at that.

43:54David McCraw:I should also say the New York Times has several ongoing cases with the LLMs, including OpenAI, Microsoft. New York Times is suing them and also suing perplexity.

44:02Nayeema Rahman:Yeah, exactly. And then you look at that discerning public, and there is just a constant drumbeat to dismiss, to misinformation, disinformation. It's very difficult to be a citizen today. And the pressure to not do that democratic duty, if you will, is really, really felt. I mean, you know, there's a lot of this idea that I think people sometimes think that fake news, somebody reads it, you know, that are conspiracy theories, somebody reads it, disinformation, somebody reads it, and they believe it. And I think it's more complicated. I think that some of that goes on, but I think more than anything, it encourages disengagement.

44:44David McCraw:There's so much going on. It's like an avalanche of bad news that people want to tune out from, but let me just take a moment to go through some of the challenges for press freedom right now. The first, and we haven't even gotten to it, is Committee to Protect Journalists reports that hundreds of journalists have died in recent years, over 200 in Gaza alone. You were honored by the CPJ at last year's gala. You talked about refusing anticipatory obedience in an environment of threats to journalism. A lot of people, you also noted that a lot of people think like the media sucks. 28 % of people report by the last Gallup poll had trust in media.

45:20David McCraw:That's an all-time low. Third, this president, since his campaign days, has actively egged on that distrust with a decade-plus crusade against what he terms the fake news media. Trump has also sued the media more than any other president. He has active defamation cases against the New York Times and against the BBC. There's also settled cases that ABC and CBS capitulated and gave—I'm going to say capitulated. They settled is, I think, the technical term. You're doing that thing where you're nodding, but you're not agreeing with me. I understand, David. Some of it I'm agreeing with. But they paid millions in donations to the Trump library.

46:01David McCraw:He also tried to sue the Wall Street Journal for their reporting on the Epstein relationship with Donald Trump. A judge dismissed that case. But it's back, yeah. But it's back. You got to bring it back. Trump won had these, like, these secret records of journalists. They're showing up at the doorstep, so we've talked about that. There's also corporate job owning, which we haven't even gotten to, which is this idea of, like, the administration is willing to, like, swing around its regulatory appendage. And by that, I don't mean Brendan Carr, but they are willing to throw their weight around on these big mergers and acquisitions and corporate deals that are happening in the media environment.

46:35David McCraw:And that has a chilling effect potentially as well. Jimmy Kimmel, Disney, ABC, a lot happening there. And then, yeah, there's the secular issue of the business model is under threat. In particular, it has been under from social media and news feeds and now through AI. So I'm curious what you see as the greatest threat in that long list. I'm curious if I missed anything. And then I'm curious why you think, why you're still optimistic if you are.

47:03Nayeema Rahman:Yeah, I'm still optimistic. I think the greatest threat is that we need to have sustaining business models for the local press, also for the national press. But the models that worked in the past, advertising-based, subscribing-based, aren't working for most news organizations, working for us. And I just think that we're going to be in a very, very bad place if, especially in local communities, there isn't an independent press. So that to me is number one.

47:34David McCraw:More than other stuff, more than defamation suits, more than the deadly— like, do you think this is the— like, if the business model doesn't survive?

47:41Nayeema Rahman:If you have a decent court system and you have the news organizations that are going to be resolute, going to stand up for their rights, see the things through, then we're going to be okay. Obviously, if the court systems get corrupt, then all bets are off about everything. But, you know, a lot of the legal problems we're going to get through. The financial problems are real, and Gen. AI sucking up content and replacing independent journalism is a serious threat. So the business model is number one. The second thing I would point to is I do think the loss of faith in democratic institutions, including the press, is a serious, serious problem.

48:25Nayeema Rahman:If you ask people if freedom of the press is important, you're going to get numbers up in the 70s. different number than if you ask them, do you trust the media? They're going to be down below.

48:36David McCraw:They like a free press, just not this press.

48:38Nayeema Rahman:That's the gap though. That's what you have to do is sort of wed those two ideas. You know, in part of that, you know, part of when I read this, you know, that, that number, I think that it's, it's a little bit like when you ask a kid, you know, how was school today? Oh, it sucked. Well, you know, but if you actually, that that's the American way. I don't like institutions. I don't like being bossed around. I don't like being told things. But if you actually look at how people operate, they do trust. When the plane crashed in Washington, the helicopter plane crashed, Donald Trump issues, the White House issues a statement about the need to reform the air traffic control system.

49:18Nayeema Rahman:The first site is to the New York Times. The New York Times said that when he needed information, when the White House needed information about what was going on with air traffic control.

49:28David McCraw:They went to Kate Kelly's reporting for the New York Times. Exactly right. Yeah, exactly. But this is where I want to kind of land us. The New York Times plays a very, I think, outsized role in this environment. And it has a unique position, I think, amongst news organizations right now because it is doing well and because it isn't subject to the kind of corporate regulation that many others are. It is a publicly traded company, and it's also got a dual class share structure, which allows the Salzberger family to continue to control the board. And the Salzberger family is like the Graham family that used to in the Washington Post, a family who has, you know, a long tenure, a multi-generational belief in the importance of a free press.

50:04David McCraw:But so the Times is a unique role to play in this fight for press freedom, both at home and abroad. I think also the Times was one of the first to ever extract an apology from the Israeli government when Lindsay Adario, our photojournalist colleague, was made to go through an X-ray, seven months pregnant, leaving Gaza, made to go through an x-ray machine three times and strip searched, and the IDF apologized. Times has a tremendous amount of power and, I think, responsibility in the moment, and I wonder how you see it.

50:34Nayeema Rahman:Yeah. So, as you point out, we have a dual class of shareholders. The company's obviously owned by shareholders, but the important decisions are still guided by the board and and by the family and that they have shown such resoluteness and throughout all this that it is a company that is designed to advance the interest of free press um and i think that puts the times in a special place and as you know um we sued the pentagon twice now over restrictions on press passes um we went at that we went that alone there were a couple news organizations who wanted to join us, but overall, we couldn't find support.

51:18And our publisher, A.G.

51:21Nayeema Rahman:Sulzberger, I think really crystallized my thinking for me, which was essentially that there's a constitutional order. And maybe we're wrong. Maybe the Pentagon's right. Maybe they can have these restrictions. But that's a decision that should be made by a court. That's the constitutional order. It shouldn't be by us self-censoring. It shouldn't be by the Pentagon making rules that seem wrong to us. And I think that that's one of the things that we do is showing up and pushing these issues in court and in front of the public. And that, I think, is where I become sort of that, if we go back to the bodyguard for the first amendment.

52:01Nayeema Rahman:Yeah, Kevin Costner. Right, right. We come back to Kevin Costner. We come back. We come back to that. Yes, that in those instances, we're doing both the defense of the New York Times, but also the larger principle.

52:12David McCraw:And in those cases, do you think of the First Amendment and the law as a shield or also as a sword?

52:21Nayeema Rahman:It can operate both ways. It is the device by which we open up courtroom doors and we get court documents, but it also protects us against bullying suits that have no merit.

52:35David McCraw:I think the Times also plays like an outsized role in Donald Trump's mind. You worked at a tabloid paper, the New York Daily News, before you were at the Times. You've probably seen Donald Trump as a character in the New York world for a long time. He seems kind of like, I will say, you probably can't comment. I think it's like the gray lady is like the girl that got away or like a little anxious relationship attachment to the New York Times. He seems to have a kind of obsession.

52:57Nayeema Rahman:He does care. And, you know, as he said, in the first term when our publisher came down, is it too much to expect that my hometown newspaper would have one nice article about me?

53:10David McCraw:And what do you think? Is that too much to expect?

53:12Nayeema Rahman:I think we've had some nice articles about him.

53:14David McCraw:Yeah. How has he increased your personal work hours, Donald Trump?

53:19Nayeema Rahman:Oh, he's a full employment act for me.

53:22David McCraw:You should change to billing hourly or six-minute intervals.

53:25Nayeema Rahman:Yeah, yeah. Well, but in fairness, if you go back over the, what did we decide, 24 years that I've been there, the nature of how news gets conveyed has changed. Somebody said to Walt Frazier, the former NBA star, you know, you could play with these guys today. And he goes, no, no, no. We played on the ground. They play in the air. And that's really kind of the same thing is true for the news media, that how we collect information, how we analyze information, the forensic videos that get done, the way we push this out in so many different platforms, it's inevitable you're going to have more work.

54:02David McCraw:Yeah. That's a very nice way to say it. You're not having like this Gen Z burned out culture around work, I see. Okay, I can't... Do you think it's real?

54:12Nayeema Rahman:I don't think so. I mean, I think every generation

54:14David McCraw:likes to complain about every other generation. I'm not sure it's real. I mean, I think it's more personality driven. Okay, I can't... The part of what's going on right now Donald Trump does have a$15 billion defamation suit against the New York Times. It names the Times company, a handful of journalists, three journalists in particular, and Penguin Random House, which had published a book of a couple of those journalists entitled Lucky Loser about Donald Trump, a title I don't think he would find flattering. He alleges that the paper defamed him about his, quote, hard-earned and world-renowned reputation and success.

54:46David McCraw:It tried to undermine his 2024 campaign, he says. He took particularly strong offense to a 2024 article about the making of The Apprentice, which the president alleges something to the effect of, you made it seem like Mark Burnett made me a celebrity when in fact I was already a celebrity. This case has gone before a Florida judge who was appointed by the first president Bush, I believe. I believe that's right. And it's gone there. It's been in and out of the media. So what's going on with this case? Tell us. Yeah. It's first leveled in September 2025.

55:20Nayeema Rahman:Yeah, so the first complaint is written. I think it runs 80 pages. And the judge on his own throws it out saying it's a political diatribe. I want a legal complaint. We're a court. That's how we want it.

55:34David McCraw:He said it was a complaint. A complaint is not a public forum for vituperation and invective. I never want to play Scrabble with this guy. Yeah. Okay, so he throws that out in September. So he throws that out.

55:42Nayeema Rahman:And then Donald Trump's lawyers file a new complaint which reads like a standard libel case. That's in at 40 pages. 40 pages. Limited to 40 pages. And we move to dismiss and Penguin Random House moves to dismiss. Last week there was oral argument in Tampa for why the case should be dismissed. And we have a variety of grounds. I think they're good. That the complaint has to allege actual malice. Yeah. didn't do so successfully, has to allege that things are statements of fact. In fact, many of the things are statements of opinion. You've cited many of them about the apprentice. Was it, who made whom?

56:24Nayeema Rahman:That's an opinion. You know, what's this, is his office a little threadbare? That's a matter of opinion. And I think all those things are going to become clear that when you actually focus on are they facts or are they opinions, that you'll see a lot of the suit is really about not liking our point of view. So the judge issued an order. Essentially, he says, I've listened to the motion to dismiss arguments, and I'm going to give the president another chance to try to improve his complaint. So they have another month to try to write a complaint that I would not be dismissed.

56:59David McCraw:Okay. So the judge defers, doesn't deny this motion to dismiss. President Trump goes on Truth Social, and he says this, and I'd love you to respond to it. This is Monday the 27th, right after the judge's deferral comes out. He frames it as victory. He says, Breaking news. The failing New York Times after 10 years of harassment, slander, and libel his words, not mine, just failed again in their desperate attempt to have our powerful defamation lawsuit against them dropped. As we requested, the highly respected judge has called for an updated complaint which will lay out in extreme detail all the ways in which the Times has repeatedly and consistently acted with actual malice in defaming me, my family, our great MAGA movement and America itself.

57:40David McCraw:We will continue to hold the Times and their comrades and the mainstream media accountable for publishing, promoting, and dealing in fake news. Thank you for your attention to this matter. Signed, President Donald J. Trump.

57:54Nayeema Rahman:I think if he watched the end of the NBA finals, he would be saying San Antonio won. That is not what happened. So being asked by a judge to rewrite your case

58:07David McCraw:the third time is not winning?

58:08Nayeema Rahman:No. Now, the judge did not say it was inadequate, but the judge didn't say it was adequate. The judge just said, try again. And I think that it's logical that if you're asked to try again, that means your previous attempt is pretty close to the line of being dismissed.

58:24David McCraw:So what happens next?

58:26Nayeema Rahman:So they will, in a month, the Trump side will put in a new complaint. We will again move to dismiss. Penguin Random House will again move to dismiss. I think we have a really strong emotion.

58:40David McCraw:Yeah. You've spoken a lot about the U.S. here. I would have never imagined as a Pakistani American who grew up in Indonesia and Sudan that when we're talking about press freedom that we'd be speaking about the United States. I'm curious how you look at the U.S. Where does the U.S. sit in terms of international threats to press freedom?

59:02Nayeema Rahman:I know that it's popular to talk about how, you know, you see these ratings that the U.S. is down around Sudan or something.

59:11David McCraw:Yeah, this is the global press freedom rankings. Right. And, like, it's like Norway, I think, or Estonia are number one and two. The U.S. is somewhere at, like, 60.

59:19Nayeema Rahman:Right. And I don't buy that. I mean, look, we still have an amazing amount of press freedom. We have a lot of work to do to keep it. We're going to do that. But, and you see what goes on in other countries. It's kind of baked in, their national security laws. And so we still, I think, are top tier. If you spend any time, like I do, in really dealing with what it's like to report in Hong Kong, China, Gaza, across the Middle East, you understand that we have a pretty good deal.

59:56David McCraw:Oh, a first world problem?

59:58Nayeema Rahman:Yeah.

59:58David McCraw:On the U.S. front, where do you see it all coming to a head? Do you think one day the Times will show up in court with Donald Trump? Like do you see another kind of landmark press freedom case like a New York Times-Sullivan, like a Pentagon Papers case in your 24 years? You haven't seen a Supreme Court First Amendment case for the New York Times. Do you think we will get to one?

1:00:19Nayeema Rahman:I don't really think that the action is going to be unliable. I think that law is going to stay fairly stable. We'll move a little bit to the left, a little bit to the right, but it's stable. I think the access cases that we're fighting, Pentagon being the key one, that's where the new frontier is. The weakness in law, in U.S. law, has always been on news gathering. The Supreme Court did an amazing job over a 25-year period, 1964, 1989, to ensure the right to publish information. but they sort of balked at the idea that there should be a right to get information and that's going to be the frontier.

1:01:01David McCraw:Okay. So that's the case that could be...

1:01:03Nayeema Rahman:I think all of those cases are protecting news gathering, protecting the right to record, protecting access to administration information and access to courts, all of those things. I think that's really going to be the frontier.

1:01:16David McCraw:Wow. Okay. And we'll see if the Supreme Court hears it because actually there have been First Amendment cases that have gone to the Supreme Court and they've declined to hear

1:01:21Nayeema Rahman:Yeah, I'm liable on defamation. They've had 15 or so chances to undo Tyzer v. Sullivan. They choose not to.

1:01:30David McCraw:Okay, David, I'm going to let you go. Thank you so much for being so generous with your time. I think it's, you know, for me, I think as someone who doesn't have a legal department now that I'm out doing independent journalism interviews, etc. Those aren't your lawyers out there? Yeah, I mean, I think they would do a great job. But Santino would be a great lawyer. But I think that we're all watching what the New York Times does and what it means for everybody else that does journalism in a time when even the term journalism is, like who's a journalist and who's not, is often in the eye of the beholder.

1:02:01David McCraw:And so I think, you know, I know how important your job is and how scarce your time is, especially as this president has you working overtime every night. So thank you so much for showing up and being here.

1:02:13Nayeema Rahman:Thank you. That was a really, really wonderful interview, at least for me, I hope it was for you.

1:02:17David McCraw:Very much so. I end every episode of Smart Girl Dumb Questions asking my guests, who are so smart about their topic, what they are dumb about. What is a dumb question that you have been afraid to ask out loud?

1:02:27Nayeema Rahman:I have one for you.

1:02:28David McCraw:Okay.

1:02:29Nayeema Rahman:How did we learn how to stand in elevators? It's amazing to me.

1:02:33David McCraw:Oh, that everyone stands.

1:02:34Nayeema Rahman:Everybody stands the same way, right? Like, why don't you walk in and face each other? Why don't you have a little, you know.

1:02:40David McCraw:But you do if you know each other, right?

1:02:42Nayeema Rahman:Only then. Only then. And then when somebody gets off the elevator, there's this sort of gentle move that, you know, step, step, step. It's really like there's no rules. It doesn't say, you know, an emergency call this number and standing here.

1:02:55David McCraw:I think that actually to test this theory, David, you should enter every elevator that you go into from now on with a moonwalk and then turn around and face everybody. Do you think that would be weird at the Times?

1:03:05Nayeema Rahman:I think that there would be a complaint to HR.

1:03:07David McCraw:You know, I have to say, I didn't think the Times elevator system could get any worse. But that might be the one way that it would make it worse. The New York Times elevators are famously bad and confusing. Thank you. It is true. I'm going to be entering elevators a lot differently now. I'm going to try doing all kinds of things, standing diagonally, maybe moving around in the elevator. But I so enjoyed that conversation. I really encourage people to read David's book, which is called Truth in Our Times. And he really, like, goes deep on a number of stories that, like, will be like a nostalgia road for you through major news stories of our times.

1:03:35David McCraw:and how the New York Times and David himself has played a role in some of the most consequential moments of our recent history and culture and politics. That's it for this episode of Smart Girl, dumb questions. I'm your host, Nene Maraza. I enter elevators in all the wrong ways. This episode was produced with Sanjana Nigam and Andrea Lopez-Cruzado. It was engineered by Colin Lee. It was shot at Wonder Studios with Desto Wondrad and Aisha Jordan here in New York City. I'll see you next week for an all-new Smart Girl Dumb Questions.

1:04:33David McCraw:This is the only purest thing in this world.

1:04:35Nayeema Rahman:Return to Pandora on Disney+. It will be an adventure for the whole family. And watch the Oscar-winning phenomenon at home. This is sick! Avatar Fire and Ash, now streaming on Disney +, rated PG-13. Hey, it's Ryan Reynolds here from Mint Mobile. Now, I was looking for fun ways to tell you that Mint's offer of unlimited premium wireless for$15 a month is back. So I thought it would be fun if we made$15 bills, but it turns out that's very illegal. So there goes my big idea for the commercial. Give it a try at mintmobile.com slash switch.

1:05:11David McCraw:Upfront payment of$45 for three months,$90 for six months, or$180 for 12-month plan required. $15 per month equivalent. Taxes and fees extra. Initial plan term only. Greater than 50 gigabytes may slow when network is busy. See terms.