Transcripts For CSPAN Trump Administration And The First Amendment 20170901

George welcome. Thanks for coming on a saturday morning in the summer. I think we have a great panel here on trump and the press and the First Amendment. Before we do anything else, i would like to introduce a wonderful panel. For coming out. To my immediate left is floyd abrams. He has been the preeminent First Amendment attorney in this country for the last 40 or so years, worked on the pentagon papers case for the New York Times in 1971. Has been in the Supreme Court for basically every major media or in his asian and high Appellate Courts since then. As a matter of disclosure, 43 years ago today, i was working about three offices down the hall from him as a summer associate, so we have known each other and being friends along time. To his immediate left is jim rutenberg, a media columnist of the New York Times. The times in the 2000s. Has been the City Hall Bureau chief in new york. Has covered the media and politics. And we are lied to have a real live journalist with the lawyers here today. Walsh, alsois david a journalist. David is with the sunday times in the u. K. He was voted Sports Writer of the year in ireland three times. His main claim to fame is he worked hard for years and thes and years on covering doping program of Lance Armstrong and his American Cycling Team and obviously was vindicated in the end when armstrong conceded. He will talk about his coverage of armstrong and lawsuits by armstrong as we discuss the matter this morning. To his left is Laura Prather from austin, texas. Laura is an outstanding litigator, but her most noteworthy accomplishment is she was instrumental in getting the to instituteture a retraction statute and a reporter shield law, all media protective matters, through the Texas Legislature the last few years. To her left is tom clare, with clare and lock in alexandria, virginia. Tom is this is random seeding , but he is over on the left, which may be should be the right. I do not know. But he is one of the countrys leading libel lawyers pla intiffs libel lawyers, most recently representing a ccessful libel suit against Rolling Stone magazine. And i am george freeman, representing inside media counsel for the New York Times. I think you have materials that give further bios and also give more substance and so on on some of the matters we will eat talking about. I would like to start with our journalist, jim rutenberg. , reallyn one sense loves the media. He watches tv news incessantly. He has coverage, he has covers, and his office, when he some. Verboy and even made he seems to like engaging with reporters. At the same time, he blasts the press every day. He has called the press the enemy of the american people. How do you put those things together . Is it just is instinctive need to find enemies . Is it a clever political strategy . What is really going on . Jim i think our best thinking on this subject we try every day to get our heads around this, even now but we believe it is a mix of annex dictation of the new york media world that he became donald trump in should have shown him more deference. It angers him when it feels like he does not get deference prayer that said, it also has fueled his movement. His movement hates the press. It works to his advantage. And it plays well on twitter. And most importantly, when it comes to the strategy, obviously, if you create the impression that there is no such thing as a valid turn owes him, you can get away with doing things that perhaps you would not have if people believed in facts. George is it working, the strategy jim predicted . He said, i am president , and you are not. [laughter] it is working, but certainly, all of the polling data would indicate that, with his base, it was one of the things they found attractive, and it is one of the things they find attractive. So to that extent, it is working. Beyond that, i think, it is hard to phrase this. You could argue, at least, that it is working in the sense that there are so many insults directed at the press, that there is a day late denigration denigration of the press by the president , i would at, and, with some success, in allowing people who cts or thee the fa opinions offered by the press to politicaled as simply or, worse yet, fake. Fake enough, it will persuade a lot of people. And it has. George what is the cost of this . Is it a cost in democracy in our system or is it a political short run . Floyd it has been mixed. I think there has been a real cost. I am the language really try not to be hyperbolic a lot of the language is language ron perrone used to use in argentina about the press there. Success. Has some thatsures his followers anything they need which is critical is subject to dismissal. That is not all of the country. For now, it is not half the country. , the role, in effect of the press. The press, especially when it gets things right, is disbelieved, is viewed as a fake, partisan tool. Harm is done to democracy itself. Then, the press cannot effectively play its role of exposing government misconduct, letting the public know what is going on, and the like. Is persuaded that who leaked a document is more important than what the document says, everything changes. If that becomes the issue rather than discussing seriously what did we learn here, if we learned anything. What is the impact of it, what should we do about it . Significantan have antidemocratic results. George what is the view from across the pond . In a sense, the Trump Movement are parallel movements, but i do not get the sense the media is being bashed quite as much in the u. K. As here. What is the view from the u. K. About what is going on here . David i would not like to speak for everybody in the u. K. , because i am sure there is a diversity of views. What i take a different view on what has been happening in the u. S. I take my view from how i have reacted. Gone after the press, it has made me, as a journalist, more interested in the american press. The New York Times more and the last three months then i have the previous 10 years. Ie reason i have done this is feel there is a need now for credible voices, maybe later than ever before. Every time that donald trump about fake news, i want to read i respect,ose view giving me an interpretation of what is going on. , donald trumpway has been good for serious journalism, because he has made people realize what happens if we were all brainwashed into believing that everything supposedly independent voices are saying, what is independent wasnt independent . What kind of society would we have . I think people react against that thought. They kind of get off their backsides and they read and they want to find out what is going on. Happened that is what i believe what has happened the last six months has been a boon for serious journalism. And the New York Times has seen a surge in prescriptions is a testament to the fact that other people other than me have had this reaction. George we talked about the general cost to this. Settled aeek, abc libel case against it in south dakota for over 177 million. If true, the greatest libel result for a plaintiff after ever. Do you think that result, and case,settlement of the while the trial was going on is, in some way, a reflection of trumps attacks on the media and the influence that might have had with that jerry jury . Laura it could have. There were a lot of things that abc was going up against in that case, including being in a very unfavorable venue for them to you they were in the hometown of the plaintiffs corporate andquarters, with unfavorable venue, unfavorable judge. There were a lot of factors that went into that. In that instance, it is very likely, could have had your views less favorable to the press because of what they have been hearing from the president. George let me ask you this. Your job, in a sense, is to attack the press. Do you think the press bashing by the president is legitimate, deserved . Is it a good thing, a bad thing . From the different view you have professionally than other folks on this panel, how do you react to this . Tom i think the president s attack on the press is a blunt instrument. In theblunt and broad criticism, because there is good journalism, bad journalism, and there is a real harm done by journalism gone wrong. The uvaRolling Stone gang rape case is one. The president has tapped into something that is real in coming and predated him onto the National Scene and attacking the press as fake news. Perspectiverors and jurors and try cases in this matter. We always ask how many of you distrust the media . Prior most recent trial, to the president getting this jurorsn, 125 potential were in the room. 121 raised their hands yes in response to the question. That cuts all lines of political affiliation, all demographics, rich and poor, genders and ethnicities. There is something to that. Is he resident has done what the president has done is tapped into that distrust. And it cheapens think it cheapens the political discourse in the country, but we are doing a disservice not to look at what is underlying that distrust in the media. George what is underlying the distrust . For the most part, the media acts in good faith, makes mistakes like any other rational. The notion that they are upentionally making things is fictional, at least i think. Where does this distrust come from . we talk about the media your characterization is correct for a large swath of the professional press corps. But when you start getting into social media and bloggers, even online professional new sites that have a lower editorial standards, more partisan reporting, that is not true. Biasedl see slanted, coverage that has an impact on peoples livelihood. I think people take into account that whole spectrum when they view all of this. I think that is a big part of it. Mediaso mentioned the makes mistakes. That is certainly true. I think the press has not done itself any favors in the way that it handles when it does make a mistake. Instead of always doing the right thing, retracting the story, posting a real correction or apology, there is a to postng effort to try the smallest possible correction in the most selfinterested way possible, and then deny any possibility and liability for it. Tot unwillingness acknowledge a mistake resonates wrongly with people, certainly our clients. George what about the fact that even if we take what you said as true, which it may well be, the number of mistakes that are made in relation to the number of facts in a daily newspaper are infinitesimal. Less than 1 . There are tens of thousands of facts in a newspaper. There may be 10 corrections, 15 corrections. The rate of mistakes is diminished. Somehow, that seems to fall out of peoples analysis. Tom i think that is right but not all corrections are created equal. But when a reporter is investigating a story and has an idea about where the store is going to end, what the toclusion is they are going print on the front page of the newspaper or blog post and shapes the fax to that story, that is a different error. Some of those mistakes, ignoring information that does not fit that preconceived notion, can be harmful and damaging. We talk about the pink slime ca se. Everything said about it is correct, which is why abc felt compelled, felt the need to settle that case. The flipside of the coin is that factories had to shut down, business was lost, jobs were lost, and people lost their livelihood as a result of that mistake. George do you want to respond . Jim i do. Inould say there are jerks every industry, and we have them. Mistakes are made. Some are grudging with missed some are grudging with corrections. You do not win credit for correcting. People take corrections in use it to attack you in this environment. That, to me, the flipside on the journalistic argument, there is also a sustained campaign to undermine the press that is some several decades old. At least four or five. Its intention is to discredit us. Newsppens nightly on fox with the biggest cable news audience. It happens daily with rush limbaugh, with the largest radio audience. And the press we do not campaign back. People off,o piss sometimes. We are the messenger. That is not always the face it is want to see what news and they disagree with or it is bad news for the political side, what have you. We are kind of not in the business of being liked. The at, there is also fighte to do more to against it, but we are not politicians. In this legal context, of course us. Es will side against i wonder if todays environment will make that worse. I am curious what you think. I think there is an additional problem floyd i think there is an additional problem. It is technological. Everything is on the screen. Therefore, for so many people, it becomes the equivalent of Everything Else they read on that screen. Ofwe have the combination good journalism, bad journalism, no journalism at all. Just people talking and writing and complaining and libeling people and the like. You hear people say i read it on the internet. Everything is on the internet. I think it has had a significantly harmful impact on the reputation of everyone who participates in that process. All of ourcludes great newspapers, as well as the and tawdry ones nonnewspapers. It becomes an amalgam. That is what the public sees and passes judgment on. George have you used the term fake news in any of your trials . Tom no. I do not. It obviously has some currency, i think fake news, to me maybe it is the Legal Training i think it is a very imprecise term. Up in my news conjures mind is something completely made up from whole cloth, fiction, which is not our cases. In our cases, there is always some element of truth or factual basis for the reporting. What we are arguing is it is substantially incorrect, factually. I may talk about sloppy journalism, reckless journalism, bad publicity, bad press. I think fake news is a different genre. Like many things the president does, it is a clever branding for this concept. Tapped into this notion with his blunt fake news phrase, but i do not think it resonates with juries. Our caseard judges in is saying we are not talking about fake news and our courtroom. I would not want to use that phrase because it would damage my credibility. George lets move to a more specific legal topic, which is promiseddents threat to open up the libel laws. I am not sure what opening up the libel laws means. So far, nothing has happened on that front. But can the president actually affect the libel laws . Laura no. He cannot make the laws. Obviously, that is congress role. His Supreme Court selections, he can certainly impact the interpretation of the laws that but he personally cannot make the law. George do we have anything to worry about in terms of the president s vow in changing libel law . Floyd i do not think so. First of all, it is preposterous. We have no federal libel law. There is nothing to change. Congress has not ever passed a libel law. We have 50 state libel laws. What he really means, because some lawyer has told him that he cannot win in this or that case that he wanted to bring, what he means is he does not like the New York Times v. Sullivan. Or put differently, the First Amendment. [laughter] which is the basis of that opinion. The president can do is to point people to the Supreme Court who have it in that wholerrule amount of cases, beginning in 1964, which did provide an enormous amount of First Amendment protection for the press. George where do we stand on the policy matter . V. We stand now, does times sullivan provide too much flexibility to the press . And you have some wins to prove that there is a balance that perhaps works. Tom the New York Times v. Sullivan standard is one of the most fascinating in american jurisprudence. It is truly extraordinary. Ever k about what what other profession where legal liability is determined by a knowledge of falsity or a reckless disregard for the truth. As lawyers, we are held to a different standard. Deviating from the standard of care. Doctors, dentists, accountants are all held to a different standard. So we have this reckless disregard standard for the press. I do not know if i would argue muchit has been gotten to protection, but in the years sullivan was v. Decided, it does provide incredible First Amendment activity. Other things layered on top of it, including retraction statutes there are so many things layered on top of the New York Times v. Sullivan standard, i think the pendulum has swung too far in really this incentivizing disincentivizing people who have legitimate economic and reputational harm from being able to assert those. Come to our clients who us, we have to counsel them about the extraordinary hurdles they face, even if they have what would be a meritorious claim. The opportunity to thread those needles and get vindication is extremely difficult. George this is for the audience. If you do not know, New York Times v. Sullivan says if you are writing about a public figure, the only liability is if the report is done with serious doubts as to the truth. You wrote it with serious doubts as to the truth of what you are writing. Whereas for a private figure, the standard is negligent. Jim, as a journalist, what does that mean to you . If youre writing a story, do you go through an analysis this person is a public figure, i can afford to be sloppy . Or does none of this matter . A dayou never think about today, because you are hopefully i think this is something the public does not understand you are having sleepless nights, making sure you are fair and accurate, where someones reputation can be harmed. Everyone i know in this business lives that way. I know there are people i am not friends with in the business who do not operate under that standard. I feel this, journalistically. If someone is running for president or is involved in shaping Public Policy in a big, public way, we need to do everything in our power to learn every single thing about that person and be accurate and be fair. But we cannot be legally burdened in trying to do that. George you have in common in a sense, the victim in the difference between the libel law and protections in the u. S. And those protections that do not exist, the strict liability system, and the rest of the world. If a mistake is made and it is damaging, there is liability. The systems in the u. S. And the rest of the world are really very different. I wonder if you could tell us, briefly, how that played out in Lance Armstrongs case against you, how that case came to be brought, and what happened. First, it is difficult to do it briefly. But i will try. I started working with him in 1999. Its not true the rest of the world some countries have libel laws like the u. S. , france, for example. In the u. K. We have what we regard as terrible libel laws, draconian in the way they make things difficult for journalists. I started investigating Lance Armstrong in 1999 because in my mind i know hes a fraud. The evidence is there. I guarantee you if i brought all of you guys and ladies in this room to my computer and i said, heres the evidence that existed in 1999 when lance won his first tour, you would all say its perfectly obvious he is a cheat, the evidence is there. People didnt want to see it. The people organizing the races were making money, his team was making money, his sponsors were making money. He was deemed to be good for the sport because he had this cancer back story. So i started investigating and i expressed doubts and Opinion Pieces in the the sunday times and in my investigations i get three star witnesses. One of them worked with the team for five years. I introview her for seven years interview her for seven hours. The transcript has 47,000 hours and she gives me chapter and verse of the teams doping practice. I interview stephen who said i rode with lance before he got cancer. We were going on a doping program. I interviewed betsy, close friend of lance. Visited him when he was treated for kearns. Heard him told his doctors about a performanceenhancing drug. I put this together in book. We write about the book in the sunday times. Lance sues us. It goes on for two years and were forced to capitulate told it asically i was didnt matter we had all these witnesses who were clearly telling the truth. [phone ringing] david and the reality was lance could get 10 people into that courtroom who would lie on his behalf, the jury would be onfused by all the conflicting evidence and they would side with him. It cost the sunday times a Million Pounds which is quite a lot of money and they were basically forced to publish a gumbel apology to Lance Armstrong even though every Single Person at the sunday times knew that the story was true and lance was a fraud. George why didnt the evidence you have, like the interview you described, why wants that enough to prove the truth . David yes. We had to prove there were preliminary hearings. What it came down to was the judges in london said we had to prove that Lance Armstrong doped. How do you do that . Well, betsy one of the witnesses said i heard him tell one of his doctors he used performanceenhancing drugs. Shes a limplete lances personal ma sues, she collected drugs. All lance needed to say was shes a liar, shes a disgruntled former employee and wee have won. And we didnt have that right to say we did this investigation correctly. Were acting in good favement we have been meticulous in the way we recorded the interviews. George which had been enough in the u. S. David absolutely. Three years after lance sued us in the u. K. I published a book i wrote a book that was published in new york, in this city, it was far more damning than anything i had previously done. Lance armstrong didnt dare sue because he knew he wouldnt get beyond first base without action. In france he tried to sue. He was immediately shot down by a judge in paris who fined him for abusing the legal process. So what im saying the kind of libel laws really do matter and we got terrible libel laws in the u. K. I believe you got pretty good libel laws in the u. S. And long may you have them. George david, just to finish this story. You have to capitulate. The pain her to can pip late. Capitulate. What happened in the end . David my Sports Writer said i am sorry about this. You cant write about Lance Armstrong unless the narrative changes. Thank god it changed. I was actually on a trek in may, 2010. I was about an hour and a half walk from base camp in the him leas and like 6 00 in the morning, snow outside and i got a phone call. Phones do work in the him leas from my Sports Editor who said theres been a Big Development in the Lance Armstrong case. His former teammate, floyd landis, written details about the extent of the fraud that went on. He said, can you get to an internet cafe . [laughter] david i could. But it made a sixhour walk down the mountain with a sheriff guiding me, my laptop my back and little village, himalayan village. He sign said internet cafe and german pitissorie. It was the happiest story i ever wrote. Once it changed, of course, it l came out that in 2012 with lances interview on oprah winfrey, his admission of guilt and his doping and to give him credit, one of the first things he wanted to do was pay back the sunday times because obviously he purgered himself in that case and he was in a vulnerable position and he eventually paid us back the oney it cost us and more and from our point of view it ended satisfactorily but it doesnt change the fact that we were working in an environment that made it very difficult to do a proper investigation into fraud and to have it published. George floyd, let me ask you. David distinguished the u. K. Libel law with the french or the rest of europe. I was under the general impression that while maybe u. K. Law is known to be the place for libel tourists libel plaintiffs to go because its so plaintiff friendly, the rest of europe is pretty damn different than the u. S. You just written a book called the First Amendment which talks about how american libel and First Amendment law really is unique. Am i wrong that being in france or germany generally is nothing like being in the u. S. In terms of defending a libel suit . Floyd well, the question im thinking about, was i wrong and what i wrote in my book . I dont know french and german law well enough to answer. I take from the reading i have done and at least one case in france for the New York Times i was involved that the amount the tections afforded to press here remains certainly at that time significantly higher than what i was the case and what i think was the case throughout western europe. I agree its nowhere near as bad as england, but it is not american in its level of protection elsewhere. Laura they will allow prior restraints which we dont. Floyd and prior restraints commonly issued with just one lawyer coming in for one side in front of a judge saying stop them now because our clients going to be hurt if these terrible things were said. George floyd, what would have happened against the suit against david and the sunday times in texas . Laura if lance would have brought the lawsuit in texas which was after it was passed six years ago he would have not only lost, he would have had to pay david and the sunday times lawyers fees. The reason is because what slap statutes does it provides a mechanism for the court to evaluate early on the merits of lawsuits that are brought out of retaliation for someone exercising their First Amendment rights. David was exercising his First Amendment rights. This is a lawsuit brought out of retaliation for him doing so. The burden would have been on lance to establish the probability of success on the merits and even if he had gotten past the initial requirement to establish material falsity of fact, he wouldnt have established malice on the behalf of david. David clearly believed what he was saying was true. He had documentation to support his belief and because we havent been able to establish actual malice, the court would have been able to dismiss the case and would have been required to award attorneys fees back to david and the sunday times. George how many states have slap statutes and what do they generally cover . In new york we dont have it and it seems like a Foreign Language to us. Its in the books but in a narrow way so it practically doesnt come up. Whereas in california almost every lawsuit no matter what its about they say, make a slap motion. There is a huge dichotomy there. I read not utah but theres some libel plaintiffs lawyer who has a map which states have slap statutes and which dont so he only files suits in those that dont. So its quite important. But tell us a little bit about what the lineup is and how it plays . Laura slap lawsuits are your best weapon against libel bullies. Hich President Trump is one. They have been in d. C. , the territory of guam. George wow. Its interesting you brought guam up. Would you have said that a week ago . Laura they are they are definitely on the uptick. More states are adopting them. Most recently connecticut adopted the slap statute that was signed into law about a month ago. And states they do vary in eath but all of them are intended to allow the courts to look at the merits of the case at the early stage of the case. They have short deadlines for filing a motion to dismiss under slatch statutes. If you had been sued for exercising your First Amendment rights, then you have the opportunity to file an early motion george do you have to show some motive beyond that someones redeeming the reputation that the suit is really being filed to shut me up or to make me go broke . Is that part of the requirements . Laura you have to show that you have been sued out of exercise of your First Amendment rights. So you have to show you actually thats the basis of the suit, you have been exercising your First Amendment right. Georgia used to have a requirement you were to sign some sort of affidavit about motives. They have changed their law and expanded their law in a way thats more consistent with california and texas and some of the broader statutes. Its really the first prong is you as a journalist if you have been sued, you set forth the fact that you have been sued out of retaliation for what you said and then the burden shifts. The burden shifts to the party who has brought the lawsuit to establish a possibility of probability of success on the merits. And thats where they set forth the prima facie case of each element of their claim. If they have no evidence of actual malice, for instance, that can be something that could cause the demise of their claim. Most of these george and then you get attorneys fees . Laura well, theres a little more knee auns. Most of the slap statutes put in a stay of discovery because the purpose of them is to make somebody who has been sued wrongfully make them whole and so they shouldnt have to go hrough volume muss discovery and costly discovery but if Something Like actual malice comes up, oftentimes the courts will allow some limited discovery on that issue to be able to allow the plaintiff to establish that fact and if they can, then they get over the slap motion hurdle. But if they cant, the court in dismisses the case and some states, not all, attorneys fees are mandatory. Some have discretionary attorneys fees, and some tates, not all, allow for an immediate interlockatory appeal of the slap motion. So it really is a mechanism to be able to protect First Amendment rights from being trying to break the bank of the defendant. Theyre trying to silence the defendant, and oftentimes you see its larger entities suing smaller journalists or people who people who have reported something on the internet, trying to get them to force them to remove whatever the post is that they put up. And so its a way these people are using the legal system as a club, and its a way to turn that around on them and say, no, you thats not what the legal system is for. Youve used the legal system improperly and now youre going to have to pay back what you cost to this other person. George tom, let me ask you. First, do you agree with what laura said . Second of all, do you think slap statutes are a good thing . And thirdly, do you have a map so you dont sue people in antislap states . Tom i certainly agree with the description that laura gave. Where i think i and it all sounds very reasonable and compelling that we need to protect against libel bullies squashing ng people, people, exercising their First Amendment rights with smaller resources, what i think the antislap statutes do, its, again, a very poorly crafted instrument to accomplish those things. We talk about the threshold of is this a lawsuit in retaliation for somebody exercising their First Amendment right . Ok, i want to sue a newspaper on behalf of a client. Were already in antislap rule. Thats First Amendment protected activity so it by definition is going to implement the antislap statute. Motive, to the extent its an issue, i mean, youre talking about an issue, where at least the plaintiff believes they have suffered some economic or reputational harm. Just like any tort plaintiff whos been injured, they want to be able to seek redress in the court system for that injury. And so but in order to do that, they have to run this gaunt let that laura described that is a very serious one. Having to make a prima facie case for each element of your claim at the motion to dismiss mustang without discovery is a very difficult thing to do. And dismiss without discovery is a very difficult thing to do. And the dismiss standard, the evidence of that, or at least much of the evidence of that is in the discretion of the defendant. How do you show what is recklessly disregarded or whether the journalist interent tained doubts of the story without reporting file . So you have to do that without the benefit of any discovery. And even if you win all that, they take an appeal and tie you up for two to three years. Even if all of that happens, you have to tell your client that you have the prospect of having to pay the other sides attorneys fees. So it is a huge deterrent for certainly its a deterrent for libel bullies. I would support that. I think libel bullies is an improper abuse of the court system, just like any other abuse of process or malicious prosecutiontype claim. But it also deter a lot of meritorious situations. Imagine you are not a libel bully but an assistant dean at an university making 100,000 going up against Rolling Stone magazine. Rolling stone magazine has an insurance policy provides them with hundreds of more resources, better lawyers, access to everything they would want in order to defend that case compared to our client with much more limited resources. We dont have a map, but i will tell you that the antislap statute is a very serious consideration in deciding when and where well bring a case and its a very serious conversation we have to have with our clients about whether to do it. Were not afraid to bring cases in jurisdictions where theres an antislap statute, but it certainly is a consideration that we have to advise the client of all these risks and delay and expense will come with trying to vindicate their rights. Its a big deterrent even with legitimate claims. George laura, given the majority of states have such a statute, i know youve been quite busy or have been anyhow in the Prior Administration trying to get an antislap statute passed on a federal basis through the u. S. Congress. Where does that stand now . If somehow congress were to pass it, i mean, right now they cant pass anything i dont think but if they were to somehow pass it, is there any chance in the world that the president would sign such legislation . Laura you know, its ironic because President Trump probably benefits from our libel laws more than anybody right now given, you know, his tweets and getting sued over his tweets and the fact they have been found to be hyperbole and hes actually getting protection from the court system on the very laws that hes complaining about. But the federal speak free act, is what its called, and congressman Blake Farenthold is the author of it. That particular bill last its been introduced multiple times. Last session it got the furthest its ever gotten which was a hearing before the judiciary subcommittee. I had the opportunity to testify at that hearing, and it went very well. But there were some concerns about federal preemption issues because the way most of the states slap statutes work is not everywhere but in most jurisdictions they are applied in federal court in diversity cases. The problem is the application to federal claims like copyright claims so the devil is kind of in the details about how to craft a federal slap statute that properly creates a balance with the federal claims. And that just is still, you know, being worked out. Theres still drafting thats going on. I would be very surprised if President Trump would sign a bill like this. So we likely will have to wait for another administration to have this happen. But in the meantime, like i said, more and more states are passing these laws. Those states that have narrow slap statutes are working to broaden them. Florida and georgia both just broadened theirs. New york has tried very hard to broaden theirs on multiple occasions. Have gotten it through one of their chambers and not the other. And most recently the uniform Law Commission has adopted a policy that they will be creating a model slap statute to roll out as well. George david, do you think that lances lawsuit against you would have been subject to a slap defense . Do you think his motive in suing you was it through derepresentation or was it to basically shut you up . David it had nothing to do with redeeming his reputation. It had something to do with protecting his reputation. His reputation at the time was quite high. A lot of people regarded him as an iconic sports man. But it was really ultimately it was commercial. At the time he sued us, he was just about to sign a 30 million deal with Discovery Channel who was the teams new sponsor. Obviously a new sponsor is coming in saying this book is coming out in france and the sunday times wrote this. Tell us whats happening. Im suing them. And thats very really assuring for the sponsors coming in, lance is going to sort this out. The effect of suing us was to silence every newspaper in the u. K. This didnt happen by accident. Lances lawyers was the most aggressive and libel lawyers in the u. K. They sent letters of warning to every media outlet in the u. K. Saying, if you write about whats been written in this book, we will definitely sue you. Nobody dared. And not only that, but as soon as journalists knew they couldnt write about lance, they decided, well, we just better accept the situation. And it was it killed investigation into the story. And lance was given this he silenced the sunday times, silenced everybody else in the u. K. And Nothing Happened for about four years until the narrative changed with new evidence and then everything changed of course. But it was about bullying us u. K. Val outlets in the into silence and it succeeded. George floyd. Floyd one more example, Cambridge University press had signed an author to write a book on putin and his connection with people in organized crime in russia. He book was submitted. Putins lawyers heard such a book was being written, wrote letters in england. The book was not published by came bridge, and they wrote an abject letter to the author which was made public by the author saying it was not because they didnt believe it but they simply couldnt take the risks of a putin lawsuit under english law. The book was published here. There was no lawsuit. And my guess was, whoever the lawyer was for cambridge, if they were the publisher here, told them there was virtually no risk under american law. So the systems diverged that much. George laura, i want to go back to the white house and about trumps policies in terms of access by the press. Before we do that, you mentioned and i think i have to go back to this. You mentioned President Trump was a libel bully. Can you just tell us why you say that and whats the history of his i think seven libel lawsuits . Laura so trump, as everyone in the room probably knows, he and his companies have been involved in 4,000 lawsuits. But seven of them are libel lawsuits. And he has not been successful in any of them in court. He does tout one of his successes, which was a default judgment in arbitration, where the individual got some really bad advice not to show up to the arbitration. But all of his libel lawsuits in court he has lost. Two of them hes actually withdrawn because he knew he couldnt establish actual malice. But one of them that i think is the most telling about President Trumps motives in filing these suits was one that was filed against Timothy Obrien and Time Warner Book Group over the book, trump nation the art of being the donald, and the reason he filed the lawsuit was because mr. Obrien reported that his net worth was 150 million to 250 million. And President Trump was very offended by that because he feels his net worth is somewhere between 4 billion and 10 billion, defend pending on the day and depending on his mood. [laughter] laura so that particular case was dismissed on motion for Summary Judgment. It was filed in new Jersey State Court where they dont have a slap statute so it was dismissed through Summary Judgment because he couldnt prove actual malice. But the case took five years. This is one of those instances where a slap statute would have come in really handy. It took five years. Enormous expense. Lots of toll on the journalists and his employer. And after losing the case, trump bragged to the Washington Post, and said, i did it to make his life miserable which im happy about. That shows the motive in filing these types of suits. He had many others that were very, very similar, similar motives, similarly ridiculous facts and each time hes lost. George i should say we were tim obrien was a times reporter although the times wasnt sued, the reporter was sued. In a deposition case, and this is pertinent to questions of whether the president lies or not or plays fast and loose with the truth, in a deposition when they asked him, you know, what his net worth really is, which was the central matter in the case, he says, it depends if i wake up in a good or bad mood in the morning and thats what the facts depends on. It tells you coming from im surprised that deposition testimony hasnt been used more often in depicting his state of mind. But any event its published tomorrow. George so lets move to trump and the white house. I mean, when he became president after the campaign, there was a fear that he was going to circumvent the Mainstream Media and just deal directly with the people through tweeting and so on. Jim, has that come about or in fact has the opposite taken place . Jim i mean, its definitely come about. He has mostly until three days ago almost entirely communicated via twitter. And i think it didnt serve his purposes. And thats why in the last two days weve seen him give two or three press kind of availabilities because basically his tweets were not driving george you dont hold the press responsible for his making these wild claims against north korea . Because now hes add libbing and that ad libbing and that kind of leads to trouble . Jim no, sir. But, you know, north korea is a good example where hes run into some trouble because now hes out on the international stage, as it is, trying to make a case and if he doesnt have a credible press to support his case, hes in trouble. So i think what hes found is that, yes, he revs up his base and he can cause trouble and get us all excited but at the end of the day its not getting him a health care law. Its not getting him credibility on the world stage. In many cases its not getting the personnel he wants in place. So weve seen i think a fairly dramatic shift in strategy in the last two days. George is i mean, implicit in what you say is that a Good Relationship between the president and the press, or at least not a terrible relationship is important for any president , is that true, or is it irrelevant to the president what his relationship with the president . Jim i think relationship is irrelevant but communicating through press that speaks beyond your own small and some say shrinking base is vital to the presidency and what we thaw in the beginning of this administration, and maybe the jury is still out, hmm, maybe that dynamic is over. Maybe you just go to twitter and you go above the press head and by the way, the Obama Administration was not saintly in this regard at all, and they tried they tried to s all the time and sometimes in ways that sound disgraceful. I dont think it served him as well. I think you need to communicate through credible channels to a large public and global body. It seems to me that if the tweeting strategy was to circumvent the press it hasnt worked. The tweets have served as a step one in a dialogue between the press and the president that begins a back and forth. It really doesnt have the effect that it started out having. Is that right . Jim often what his own aides are doing is to straighten out the press with the mess that is made from his tweets. Wikileaks he loves but he does not like other lakes. You never know which he likes and doesnt like. In this case they are helping to straighten out his policy. His beating about up on certain reporters . Invitingpicer unfavorable reporters, gets invited to is that a policy that has failed . Will we see that again and does it matter . Jim it failed because they took they took the briefings off television and it was this great punishment. They had to reverse that because , why would you not avail yourself of what trump knows to be the most powerful medium in the world, television . Every administration has taken advantage of that. Of the stuff is gamesmanship at this point and what we are all waiting for, everyone in this room in this area of law, is for the rubber to hit the road where there is a real move against the press that is in the more legal realm of subpoenas and chill us through law. George we will get to that in a second. In the end, is access to this asinistration about the same the past two administrations . Jim weirdly in some ways it is way better. The press is given opportunities to talk to the president. Ive spoken to the nominee of the Republican Party more times with donald trump than any other ive been covering politics for 20 years. Incredible access on the one hand when it comes to public settings that they make a show of blocking access and indeed they do block access. There is a schizophrenia to the whole thing. Also asu count leaks access to the press, [laughter] assange said this was the most transparent white house ever. [laughter] thoughts . Y do you think the press is good or the president should be allowed to have no press conferences almost . Do you have any view of that . The extent that i have a view it is probably somewhere in the middle. The president of the United States is the ultimate public official and his duty and the discharge of his office is clearly subject to being reported. Where i drop off the chain a bit is the sense of entitlement, of obligation to dialogue with the press in a particular way. To hold x number of press point, hes, at some will be the president and you will report on them. I dont feel that the custom that has happened over the last x number of years has to be the way as technology evolves, as americans Attention Spans adapts, the press has to in the way they think about it. I commend the products i commend the press in the way they have handled these challenges. The opposite impact that was intended. I dont fully subscribe to the notion that the president owes a particular format or number of appearances or answering two questions. The press does not have subpoena power. It does not have any mandate other than to do their jobs. The president can dialogue with you as he wants just like anyone else. If the president doesnt give access, this invites or unfavorable publications from whatever press conference as they are, is any of that a basis of a legal lawsuit . One so far seen but the press is always rumbling about that. What would happen if Something Like that ended up in court . Intour last example is one which there could be a serious lawsuit. Kicking out one member of the press or one newspaper or the like, because the president disapproves of their coverage. There has been litigation like that in the past. Not a whole lot but there are cases not involving president s. So, almost discriminatory mistreatment of hostile journalists, as viewed by the white house, could give rise to litigation. Not on the rest. If the president says, this is a press conference free administration, no lawsuit would lie against that. If the president likes, as was the case a few months ago, his people to stand in the dark with shrubs around them [laughter] power to limit the communicative process in that way just as the press has the power look how effectively they used it. Cartoonsg up pictures, on television at the same time sean spicer was hiding in the woods. The administration couldnt tilt that. They literally couldnt take that mockery by television news. On that they had to throw in the towel. There is not a big role for the law here. Is it going to be selfhelp, selfdefense, and sometimes some aggression by the press in response. George david, how does this compare to the u. K. . We are complaining at times about access to the white house. Is there similar access to the Prime Minister or are we in a spoiled situation . Think there is similar access. One point before i answer your question. When you mentioned that President Trump looks unfavorably on publications that he feels have not treated him well and seeks to exclude him, it feels like, i bought this tshirt and i have seen the slogan. His pump inas in the early 2000s, he would have what he called intimate press conferences. There were a certain number of journalists who were from the ,est newspapers in this country who would get furtive phone calls and texts, the at a certain Hotel Tonight and he is ready to talk to. Lance would pick out, the journalist from the New York Times and the Washington Post and espn, although once he thought would give him a fair hearing. He would give them information he would give no one else. That was a real challenge for the journalists. They knew why they were being invited. I dont think they handled it well. I think they should have been much more robust and their reaction to what was happening in the case of President Trump, they have reacted in the right way. They have not forgotten or duty may have done it pretty well. In relation to the u. K. , it is interesting. As we have said and acknowledged, our libel laws are terrible. Our Prime Minister would not dare to go after journalists and newspapers and tv stations in the way President Trump has. It just wouldnt play out well with the public. Your best newspapers are better than ours but i think from the people in authority in the u. K. , there is far more respect for our newspapers than yours. It is like an apparent contradiction. There is no chance that Prime Minister may would tweet or treat the press like donald trump is. She would be in trouble. George one of the roles the press plays here, is a role that occurs in parliament. In england. We have no question time here. The president does not appear in front of the congress to defend himself or articulate his views except in a speech once a year. One of the roles the press has come to play here is not dissimilar from the role that members of parliament play in pursuing the Prime Minister for what she has said or not said or done and not done. Otherwise we wouldnt have anything. Mechanism inther american political and cultural life by which the president is put to the task of responding to that which his critics have said about him. Jim, you mentioned the outpouring of leaks in this administration. Why is that . Why has this administration been leaky or than any other and leaks have become the currency in which you have got news . Jim there are a lot of reasons. Himself has used the press to leak. George let me ask you, were you the reporter who he called pretending to be his own agent . Thatg the Important News sex with marla maples was the best he had ever had . Jim he did not have to do that at the new york post. Is not where i was hoping to go. [laughter] leaks now he criticizes given that he was the leaker of a fictional person talking about his own sex life. Jim it is one of the many fascinating contradictions. You have this culture in his whitegn, two days ago, house people leak to position themselves and he said he was flattered by that. The leaks that he sees as competition for his love. There is a culture of leaking already within the organization then there is what his supporters call the deep state. The bureaucracy, the policy experts, whose expertise runs counter to policies who feel a need to leak. Then there is the actual deep state Intelligence Community that feels it is being ignored. Donald supporters would say they agenda whichng his is antiestablishment. There are many reasons. But ive never seen anything like it in my career. And i am getting up there in age. Withe how do we square what you just said with the fact when it comes to legal jeopardy and legal threats that he has to go afterreat leakers, which other president s including president obama have done, but more importantly his threat to go after journalists who published the results of those leaks, which would be unprecedented, how do we square that threat against what seems to be his happiness or his lack of unhappiness about leaks in general . There seems to be a total contradiction there. Floyd, do you want to answer that. No. [laughter] we do not square that. Not everything can be squared. He has different reactions to different leaks because some of them are helpful and some are harmful. Or because some of them are been using or flattering he says, to him. And some of them are not. I think back, to what i think of the first big leak after he took office which was about his conversation with the australian Prime Minister. Which was on the first day of his presidency. Within a day or two, there were stories, i have never read stories like that before. How the president insulted the australian Prime Minister, essentially hung up on him. Conversation,the took no account, and made no reference to the longstanding, very close relationship between our countries and essentially rejected a deal made with president obama for us to take or at least, take off australias hands. 1200 people who would come by boat illicitly to australia. Two weeks ago now, we got the entirety of the transcript of that conversation. Unknown, in american history, to get a fullfledged transcript of a discussion between a president and a foreign leader and there was a good deal of condemnation for that. My view is that, whoever leaked that is a patriot. That that information is so valuable to be known so that we can pass judgment on our president , that whoever it was, and it couldve been from australia, it could have been from other countries who listen and to who knows what or it could have been someone at the state department, wherever it was from, i think the public was greatly served by it. It is something new. Thatis the sort of leak did not occur or has not occurred previously. Jim one thing about that is that incident was flatly denied. Not the talk. Jim they said the way the call was reported was absolutely untrue fake news. You will often have situations where a leak straightens the record out because there has been so much falsehood emanating from that building. Floyd, i am surprised you say that because you have been critical of some of the leaks with the disclosures that hit upon Foreign Policy and foreign agents. Can the u. S. Really conduct Foreign Policy if a conversation which appears at first to be a private conversation with another foreign leader, and up being leaked publicly into the world . Floyd it makes it more difficult. There is no doubt. Course and it of would make it more difficult. It would not prevent foreign leaders from talking to our president. I dont believe that. What i was critical of was matters relating to american intelligence gathering abroad which is a different category. Makes available documents revealing that we were ,istening to chancellor merkel overhearing her calls. Norway and u. S. And agreement tosecret conduct intelligence of russia and they shared information together, none of which is improper, all of which is the stuff of allies working together and all of which have the potential to be harmful in its revelation, on that sort of condemn,would and did for what ever means, snowden for releasing met. George are all leaks prosecutable . There is the vehicle for leaks to be prosecuted through the espionage act for the most part our leaks about politics, the russia investigation, can the government prosecute the leakers for that . Can they prosecute them , or is that for matters of National Security under the espionage act . Floyd can probably answer this better to we have seen leakers get prosecuted that are nonjournalists. The question is, will they take it to the next level and prosecute journalists, the recipients of the information . That is the fear. They will use the espionage act to take it to the next level. George are all leaks prosecutable . Probably not and the reason i say probably is that we have not had prosecutions of journalists for publishing information leaked to them. The espionage act is 100 years old this year. It is phrased very broadly. There has been no litigation stemming from it with respect to journalists themselves. Much litigation about Government Employees and the like and there is a Strong Defense that journalists will have that it was not intended to cover them. At the same time, the language is very broad and there remains a level of uncertainty as to which journalist could be prosecuted for publishing certain information which they obtained from people within the government who did not have authority to give it to them. George so it has never happened though that the government has sought to imprison or prosecute a journalist for publishing leaked information that shouldnt have been late. That shouldnt have been leaked. The Supreme Court said the New York Times could be prosecuted after the fact of publishing the pentagon papers but it didnt happen. When i was there during the wiretap articles, even though president bush and Vice President cheney and others, the attorney general, should be put behind bars, they didnt try. Why is that, is it because of Legal Defenses or the tradition that in our country, you dont try to put the press in jail . How would you explain the fact that it has never even been tried, much less successful so far and whether therefore it wouldnt be an incredible game changer if it were attempted in this administration . Floyd one of the reasons it hasnt happened is that president s generally dont go looking for great battles with the press. It is not generally in their interest. This would be a great battle even if this administration got it into its head to try to prosecute the press in this way. Yes, as an american cultural matter, the press has not been sued, accused, of violating the espionage act. Part of american political , itnal, all of it together remains a ticking time bomb because we simply do not know the answer. We cannot give a firm answer to the question, of what would happen if they did. Two weeks again, the assistant attorney general on television said, that this administration would not prosecute journalists for doing their jobs. Im repeating an earlier statement to that effect. That was good to hear. What im saying, it is reassuring to some extent, to hear that because the law is by no means 100 clear. When you cite opinions from the pentagon papers case, of judges saying, the New York Times could have been prosecuted for publishing, i dont take a whole lot of solace from the fact that there was no prosecution against the times. Those footnotes are going to be on page one of the briefs of whatever government first goes to court against the press when there is some sort of espionage act prosecution. We can only hope that there will be that there will not be one. George you mentioned that the espionage act is vague and not well drafted. That seems to have been knocked down by courts. What would be the prime defense of the journalist . Ds, i knew this stuff was classified information but i published it anyhow, but i didnt steal it i was just given it by a source but i didnt ask for it, i was a passive recipient. What is the Legal Defense for that journalist . Floyd the Legal Defense first of all is that was not the intent of the congress in 1917 when they passed a law. That there were amendments offered to cover journalists which were not adopted. There is a legislative history response. It must be said again, legislative history has a way of avoiding what one could argue, is the text of statutes. Is increasingly outoffavor and it remains therefore an open issue. As to how to read or how the courts will read some of this very broad language. The other legal argument would be, some of the sections of the unlessy, no liability whatever was done was done for the purpose of harming the u. S. Or helping a foreign power. Argument. Serious it is in the text of some of the provisions but not all of the espionage act. That sort of issue would be argued as well. Inwas argued a few years ago a case brought in maryland. The argument was, the only way to make the statute not unconstitutional because of its vagueness is to import into its reading some notion of trying to harm the country or help a foreign country. Those sorts of arguments would be made. George what about the constitutional argument . With cases, the defense is it is unconstitutional to publish such information would that be effective . Floyd the question is, are you doing something illegal . In those cases there was no statute saying it was illegal to say this or say that at least in some of the cases. In the civil cases. Yes, you would argue, truthful speech ought to be protected. Truthful speech in almost all circumstances and then you would be arguing about what the almost is. A penultimate question, should the government be allowed to prosecute its own people for leaking information under those circumstances . Does anyone have a problem with the government going after Government Employees for leaking . Is that within their purview . Do we mind that . Journalistically, i always mind that. It is a chilling move. Legally i would say they are within their rights, right, floyd . [laughter] floyd they can do it. The law must apply to someone. [laughter] floyd we cant have complete immunity from everyone for a violation. Leakers, if all the statutory terms are met, are constitutional. George jim, let me ask you the last question. In the firstago six months of the in administration, i was interviewed in one of my worries , they asked what keeps you up at night . My answer was north korea. What keeps you up at night in terms of trumpet and the press . Was it as bad as you first thought it might be . How would you summarize it . Jim the legal prospect we are talking about now which is the lawful use of the cudgel to silence with subpoenas. Two, the rhetoric gets so bad that there is violence and someone gets hurt. God for bid. Somehow this work to actual truth keeps progressing so that any concept of truth is making our democracy further adrift. George on that uplifting note. [laughter] [applause] george thank you. Texas rig continues its Recovery Efforts in the wake of hurricane harvey. An update later today. Greg abbott scheduled to greet reporters at 2 p. M. Eastern and we are planning live coverage on cspan. Congress has begun discussions on proposed aid to harvey afflicted areas. Sarah and jennifer of politico right, Mick Mulvaney is landing to send a formal request to congress this afternoon seeking 6 billion in a down payment to seek relief for hurricane harvey. Source, theg to a specific details will be announced in a letter this afternoon sent to congressional leadership and delegations. Other offices will be informed later. We expect to hear more about that, at the White House Briefing today. Sanders, we will Sarah Huckabee sanders, we will have that here on cspan. About ayou think oneday festival, the National Book festival and you have over 100 authors from children authors, illustrators, graphic authors, all of these these people, all celebrate books and reading, you cannot have a better time. I am aejudiced because librarian but i have to tell you, any reader or anyone that wants to get inspired, the book festival is the perfect place. Book tvs alive allday coverage begin saturday at 10 uthors. Th featured a former secretary of state Condoleezza Rice and Michael Lewis and jd vance. National book festival, Live Saturday starting at 10 a. M. Eastern on cspan two tv book tv. Eastern,unday at noon is our guest. America is not defined by our ethnicity. Every ethnicity exists in america. We are defined by an idea. We are the only country in the world that was created by an idea. In order to keep the republic as franklin and joined us to do, we must know those ideas and understand them and buy into them and live them out. Include biographies on William Wilberforce and his latest, if you can keep it, the forgotten promise of american liberty. Join us for that conversation. One sunday at noon eastern book tv, indepth, on cspan two. Book tv recently visited capitol hill to ask members of congress what they are reading this summer. What are you reading . I am in the middle of a couple and i have a couple on my list. Nightingale, the story of women resisting no azi rule during world war ii and some of their efforts to help the resistance. I highly recommend it. So much history is written by men and the stories of women are not told so that was an interesting book from that perspective. A book that i am in the middle tonow is, option b, how build resiliency. She lost her husband a little over a year ago and this book is some helpfulo give lessons and suggestions for how people can learn to cope with loss. And how to learn to live again. That has been an eyeopening book. One of the books im currently reading with my eight euros on my summer are the with eight year old son, are the graphic novels by john lewis. By theis transfixed stories in the book and the images, talking about how people fought for civil rights and equality in this country. Of the books on my. To one of my books on my to read list is by david sedaris. Also, the fight for freedom. Book tv wants to know what you are reading. Send us your Summer Reading list the a twitter or on instagram. Or posted to our facebook page. Book tv on cspan two. Television for serious readers. As Recovery Efforts continue in the wake of hurricane harvey, a look at federal Disaster Relief. From this mornings washington journal. We are joined by michael he is a director at the university of Maryland Center for health and homeland security. He is here to talk about federal Disaster Relief in the wake of harvey. Thank you so much for joining us. Guest