Transcripts For CSPAN Trump Administration And The First Amendment 20170902

Join our life threeour conversation. Your calls, emails, tweet, and facebook questions live sunday at noon eastern on cspan2. Now, a conversation on the trunk administration and its relationship with the press. From the american bar s annual meeting. This is an hour and a half. 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. I think them 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 Organization 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. Jim joined 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. To his left is david walsh, also 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 really worked hard for years and years and years on covering the 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 Texas Legislature to institute 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 locke in alexandria, virginia. Tom is this is random seating, 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 plaintiffs libel lawyers, most recently representing a successful libel suit against Rolling Stone magazine. And i am george freeman, representing and was the 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. Trump, in one sense, really loves the media. He watches tv news incessantly. He has covers, in his office, when he was coverboy and even made some. 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 an expectation 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 . Floyd as 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 daily denigration of the press by the president , i would say aimed at, and, with some success, in allowing people who do not like the facts or the opinions offered by the press to be dismissed as simply political or, worse yet, fake. If you say 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. A lot of the language i am really trying not to be hyperbolic a lot of the language is language juan peron used to use in argentina about the press there. Again, it has some success. It assures his followers that 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. But it has, in effect, the role 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. If the public 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 . I think it can have significant antidemocratic results. George what is the view from across the pond . In a sense, the Trump Movement and brexit 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. Since trump has gone after the press, it has made me, as a journalist, more interested in the american press. I read the New York Times more and the last three months then i have the previous 10 years. The reason i have done this is i 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 somebody whose view i respect, giving me an interpretation of what is going on. In a perverse way, donald trump 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 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. 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. But last week, abc settled a libel case against it in south dakota for over 177 million. If true, the greatest libel result for a plaintiff ever. Do you think that result, and abcs settlement of the case, 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 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. They were in the hometown of the plaintiffs corporate headquarters, with an unfavorable venue, unfavorable judge. There were a lot of factors that went into that. Yes, the jury 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. Overly blunt and broad in the 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 america and predated him coming onto the National Scene and attacking the press as fake news. I talk to jurors and perspective jurors and try cases in this matter. We always ask how many of you distrust the media . In our most recent trial, prior to the president getting this campaign, 125 potential jurors 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. What the president has done is tapped into that distrust. I 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 intentionally making things up is fictional, at least i think. Where does this distrust come from . Tom 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. You will see slanted, biased 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. You also mentioned the media 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 begrudging effort to try to post the smallest possible correction in the most selfinterested way possible, and then deny any possibility and liability for it. That unwillingness to 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 conclusion is they are going to print on the front page of the newspaper or blog post and shapes the fax to that story, that is a different error. Qualitatively, some of those mistakes, ignoring information that does not fit that preconceived notion, can be harmful and damaging. We talk about the pink slime case. 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. I would say there are jerks in every industry, and we have them. Mistakes are made. 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. It happens nightly on fox news 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. Our job is to piss people off, sometimes. We are the messenger. That is not always the face people want to see what it is 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. We have to do more to fight against it, but we are not politicians. In this legal context, of course juries will side against us. I wonder if todays environment will make that worse. I am curious what you think. 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. So we have the combination of 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. And that includes all of our great newspapers, as well as the more tawdry ones and 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, but i think fake news, to me maybe it is the Legal Training i think it is a very imprecise term. What fake news conjures up in my 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. I have heard judges in our case 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 the president s threatpromised 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. But he, by his Supreme Court selections, he can certainly impact the interpretation of the laws, 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 only thing the president can do is to point people to the Supreme Court who have it in mind to overrule that whole 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 . As we stand now, does times v. 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. You think about 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. Doctors, dentists, and accountants are all held to different standards. We have a much different standard for the press, this reckless disregard standard. I dont know if it provides too much protection, but what i will say is that in the years since it has been decided, it does provide an incredible and unprecedented amount of protection for First Amendment protected activity. All of the other things that have been layered on top of it like the very short statutes of limitation and the taxability of libel, i do believe that the pendulum has swung too far in the years since of really this incentivizing and prevent people who have legitimate claims, not people who just want to shut down the news and are doing it to make some political point. People who have legitimate economic and reputational harm from being able to assert those. We can talk about those later in the panel. A lot of our clients who come to us, we have to counsel them about the extraordinary hurdles they face even if they have a meritorious claim. Threading those needles and getting to some vindication is incredibly difficult. Just for the audience, if you dont know, it essentially says that if you are writing about a public figure, there is only liability of the report was done with serious doubts as to the truth. You wrote it with serious doubt as to the truth of what you are writing. Whereas against a private figure, the standard is negligence, which is a standard lawyers are familiar with. As a journalist, what does that mean to you . If you are writing a story, you go through an analysis . This person is a public figure, so i can afford to be sloppy, or does not of this really matter as you are working daytoday . You never think about it daytoday because you are hopefully and i think this is something the public doesnt understand having sleepless nights making sure you are fair and accurate when the stakes get that high were someones reputation can be harmed. It is everything to us. I know there are people im not friends with in the business who dont operate under that standard. I feel journalistically as if someone is running for president or someone is involved in shaping Public Policy in a big way, then we need to be able to do everything within our power to learn every single thing about that person and be accurate and fair, but we cant be legally burdened in trying to do that. David, you have been in a sense a victim of the difference in libel law between the protections here in the u. S. And those protections that dont exist, almost a strict liability system, and the rest of the world. If theres mistakes made and it is damaging, then there is liability. It is really very different. I wonder if you could tell us briefly how that played out in Lance Armstrongs case against you, how that came to be brought and what happened. Is good it is difficult to do it briefly, but i will try. I started investigating Lance Armstrong in 1999 for the sunday times in london. Some countries have libel laws that are very like the u. S. France, for example. But in the u. K. , we have what we regard as terrible libel laws, draconian and the way they make things difficult for journalists. I started investigating him in 1999 because, in my mind, i know he is a fraud. The evidence is there. A guarantee you if i brought all of you in this room to my computer and said, here is the evidence that existed in 1999, you would all say, it is 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 and 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 put out Opinion Pieces in the sunday times. In my investigations, i get three star witnesses. One had worked on the team for five years. I interviewed her for seven hours. The transcript runs 47,000 words. She gives me every minute detail of the doping program. I interviewed a guy who says he rode with lance before he got cancer. They decided as a team to go on a given program. Plants was the strongest advocate. I interviewed a close friend of lance, heard him tell his doctors about the performanceenhancing drugs. I put all this together in a book. We write about the book in the sunday times. Lance sues us. They goes on for two years, we are forced to capitulate. Basically, i was told it didnt matter that we had all these witnesses who clearly were telling the truth. The reality was that lance could get 10 people into that courtroom who would lie on his behalf. The jury would be confused by all the conflicting evidence, and they would side with him, and we would certainly lose. A cost the sunday times one million pounds, and they were forced to basically publish a groveling apology to lance even though every Single Person at the sunday times new that the story was true. Why did the evidence you had and the interviews you described, why was that enough to prove the truth . We had to prove that they were planetary hearings. When it came debt there were preliminary hearings. We had to prove that Lance Armstrong doped. How do you do that . One of the witnesses said they heard him tell his doctors he used performanceenhancing drugs. Shes a liar. Once elected drugs one collected the drugs. All they needed to do was say she was a liar, and they want. We didnt have the right to say we have done this investigation correctly. We are acting in good faith. We have been meticulous and the way we have recorded interviews and presented the facts. Which would have been enough in the u. S. Absolutely. Three years after lance sued us in the u. K. , i published a book in new york. It was far more damaging than anything i had previously done. Lance armstrong didnt dare sue because he knew he wouldnt get beyond first base with that action. In france, he tried to sue. He was immediately shot down by a judge in paris who find him who fined him. For abusing the legal process. The kind of libel laws you have really do matter, and have terrible libel laws of the u. K. I believe you have pretty good libel laws in the u. S. , and long may you have them. Just to finish the story, you had to capitulate. What happened in the end . After recapitulated, my Sports Editor was saying to me, im really sorry about this, but you cant ever write about Lance Armstrong unless the narrative changes. Think on it changed thank god it changed. I was about an hour and a half walk from base camp in the himalayas at 6 00 in the morning, snow outside, and i get a phone call from my Sports Editor, who said there has been a Big Development in the Lance Armstrong case. His former teammate has written emails that detail the extent of the fraud that went on. He said, can you get to an internet cafe . [laughter] i could. I made a sixhour walk down the mountain with my laptop on my back, and went to a little himalayan village. The sign said internet cafe and a german rotisserie. I went in, had a coffee, and it was the happiest story i ever wrote. It all came out that his interview with oprah winfrey, his admission of guilt, and his doping. To give him credit, one of the first things he wanted to do was pay back the sunday times. Obviously he had perjured himself in that case and he was in a very vulnerable position. The eventually paid us back the money it had cost us and more. 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 have it published. David distinguished u. K. Libel law was the french for the rest of europe. I was under the general impression that while maybe u. K. Law is known to be the place for libel plaintiffs to go because it is so plaintiff friendly, the rest of europe still is pretty different than the u. S. You just written a book that i think talks about how american libel and First Amendment law really is unique. And i wrong that being in france or germany generally is nothing like ian in the u. S. In terms of defending a libel suit . The question im thinking about is, was i wrong in what i wrote in my book . I dont know french and german law well enough to answer. It is not american in his level of protection elsewhere. They allow prior restraint, which we dont. Prior restraint and ex parte prior restraints. Prior restraint is commonly issued with just one lawyer coming in for one side in front of a judge saying, stop them now because our client is going to be hurt if these terrible things are said. What has happened in the suit against david and the sunday times in texas . After the antislap statute was passed six years ago, he was not only lost, he wouldve had to pay david and the lawyers fees. What slap statutes do is provide a mechanism for the court to evaluate early on the merits of lawsuits brought out of retaliation for someone exercising their First Amendment right. David was exercising his First Amendment right. This is clearly a lawsuit brought out of retaliation for in doing so. The burden would have been on lance to establish the probability of success on the merit. Even if he had gotten past the initial requirement to establish material falsity, he would have been able to establish that he wouldnt have been able to establish actual malice on behalf of david. David clearly believed what he saying was true. He had documentation to support what he was saying. Because he couldnt 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. Tellis a little bit of background. First of all, how many states have slept statutes, and what do they generally cover . Slap statutes, and what do they generally cover . In new york we dont have it. It is of the books, but in a very narrow way so it doesnt come up, whereas in california, almost every lawsuit makes a slap motion. Theres a huge dichotomy there. I read there is some libel plaintiffs lawyer who has in his office a map of which states have slept statutes and which dont so that he only files suits in those that dont, so it is quite important. To tell us a little bit about what the lineup is and how it plays. Slap lawsuits are your best wetsuit are your best weapons against libel lawsuits. What they do is they have been adopted in 29 states, the District Of Columbia and the territory of guam. Interesting you bring guam up. [laughter] they are definitely on the uptick. More states are adopting the, most recently connecticut, just signed into law about a month ago. States they do very inbred, in breadth, but all of them are intended to allow a mechanism for the court to a value to evaluate the merits of the case at an early stage. They usually have very short deadlines for filing a mission to dismiss under the slap statute. What they have in common is if you have been sued out of retaliation for exercising your First Amendment rights, you have the opportunity to file an early motion do you have to show some motive beyond that someone is redeeming their reputation that the suit is really being filed to shut me up or make me go broke . Is that part of the requirement . You have to show you have been sued out of exercise of your First Amendment rights. That that is the basis of the suit, exercising your First Amendment right. Georgies to have a requirement you would have to sign some sort of affidavit about motive. They have since expanded their law and a way that is more consistent with california and texas and some of the broader statutes. The first problem 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 the burden shifts to the party who brought the lawsuit to establish a possibility a probability of success on the merit. That is where they set forth a case for each essential element of their claim. If they have no evidence of actual malice, that can be something that could cause the demise of their claim. And then you get attorneys fees . Theres a little more nuance. 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 whole, so they shouldnt have to go through voluminous discovery and costly discovery. But if Something Like actual malice comes up, oftentimes the court will allow some limited discovery on that issue to be able to allow the plaintiff to establish that fact, and if they can, they get over the slap motion hurdle. If they cant, the court then dismisses the case, and in some states not all attorneys fees are mandatory. Some have discretionary attorneys fees. Not all of allow for intermediate appeal if you lose a slap motion. They still stayed the underlying case. It really is a mechanism to be able to protect First Amendment rights from people who are trying to break the bank of the defendant, trying to silence the defendant, and oftentimes you see larger entities suing smaller journalists or people who have reported something on the internet, trying to get them to remove whatever the post is that they put up. These people are using the legal system as a club, and it is a way to turn that around on them and say, no, that is not what the legal system is for. You used the legal system and properly, and now you have to make back what you cost to this other person. Tom, let me ask you, do you agree with what laura said . Second of all, do you think statutes are a good thing . Thirdly, the you have a map so that you dont sue people in these states . I certainly agree with the description laura gave. Where i think that it all sounds very reasonable and compelling that we need to protect against libel bullies from bullying people and squashing people exercising their First Amendment rights with smaller resources. What i think the antislap statutes do is it is a very poorly crafted instrument to a caucus those things. Is this a lawsuit in retaliation for someone exercising their First Amendment right . Ok, i want to sue a newspaper on behalf of a client. We are already in antislap rule. That is First Amendment protected activity, so by definition it will indicate the antislap statute. Motives to the extent that it is an issue, youre talking about an issue where at least the plaintiff believes they have suffered some economic or reputational harm, and just like any other tort plaintiffs who have been injured, they want to be able to seek rich dress in the court system for that injury. In order to do that, they have to run this gauntlet or describe having to make a case for each element of your claim at the motion to dismiss stage without any discovery. It is a very difficult thing to do. Especially when you are talking about the actual malice standard, where the evidence of that, or much of the evidence is in the exclusive possession of the defendant. How do you show what was recklessly disregarded or whether the journalists entertained serious doubts about the story without having access to reporting file and information . You have to do all of that without the benefit of any discovery. Even if you win all of that, they take an interlaboratory appeal. Even if all of that happens, you have to tell your client you have the prospect of having to pay the other sides attorneys fees. It is a huge deterrent for libel bullies, and 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 prosecution type claim. But it also does deter a lot of meritorious situations. Imagine you are an assistant dean at a university making 100,000 a year going up against Rolling Stone magazine. They have an insurance policy that is hundreds of times 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 we will bring the case, and a very serious conversation we have to have with our clients about whether to do it. We are not afraid to bring cases in jurisdictions where there is an antislap statute, but it certainly is a consideration we have to take to the client. It is a big deterrent for even very legitimate claims. Given the thought that many states have such a statute, i know you have been quite busy or had been in the Prior Administration trying to get an antislap statute passed on the federal basis by the u. S. Congress. Where does that stand now . If somehow congress were able to pass it, is there any chance in the world that the president would sign such legislation . It is ironic because President Trump probably benefits from our libel laws more than anybody right now given his tweets and getting sued over his tweets and the fact they have been found to be hyperbole. Hes actually getting protecting from the court system on the very laws he is complaining about. But the federal speak free act is what it is called. Congressman Blake Farenthold is the author of it. That particular bill has been introduced multiple times. Last session it got the furthest it has 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 their works there were some concerns about Frederick Prete about federal preemption issues. The way they work is 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 in the details about how to craft a federal slap statute that properly creates a balance with the federal claims. That just is still being worked out. There is still drafting 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 for this to happen. But like we said, more states are passing those laws. Georgia just broadened theirs. New york is trying to. It got through one chamber but not the other. David, do you think that lances lawsuit against you would have been subject to a slap defense . You think his motive in suing you was to redeem his reputation, or was it to basically shut you up . 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 sportsmen. Ultimately, it was commercial. At the time he sued us, he was just about to sign a 30 million deal with discovery channel, the teams new sponsor. Obviously a new sponsor is coming in and they say, this book is coming out and the sunday times has written us, im suing them. That is very reassuring for the sponsors coming in. Lance is going to sort this out. Suing us was to silence every newspaper in the u. K. This didnt happen by accident. His lawyers said letters of warning to every media outlet in the u. K. , saying if you write about what has been written in this book, we will definitely sue you. Nobody dared. Not only that, but as soon as journalists knew they could not write about lance, they decided we better accept the situation. It killed investigation into the story. Lance was given he silenced the sunday times, silenced everyone else in the u. K. , and Nothing Happened for about four years until everything changed with new evidence. It was about bullying us and rival newspapers and Media Outlets of the u. K. Into complete silence, and it succeeded. I just wanted to add one more example, Cambridge University press had signed an offer to write a book on putin and his connection with people in organized crime in russia. The book was submitted. His lawyers putins lawyers heard that such a book was written. Wrote letters in england. The book was not published by cambridge. They wrote an abject letter to the author made public by the author saying it was not because they didnt believe it, but they simply couldnt take the risks a putin the risks of lawsuit under english law. The book was published here and there is no lawsuit. My guess is wherever the lawyer was for cambridge, if they were the publisher, told him that there was virtually no risk under american law. The systems diverge that much. Laura, i want to go back to the white house and 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 that President Trump was a libel bully. Can you tell us why you say that, and what is the history of his seven libel lawsuits . Trump, as everyone in the room probably knows, he and his companies have been involved in 4000 lawsuits. Seven of them are libel lawsuits. He has not been successful in any of them in court. He does tout one of his successes, a default judgment in arbitration, where the individual got really bad advice not to show up to the arbitration. All of his libel lawsuit in court he has lost. Two of them he has actually withdrawn because he knew he couldnt establish actual malice. One of them that i think is the most telling about President Trumps motives in filing these suits was one filed against Timothy Obrien and Time Warner Book Group over the book trump nation, the art of being the donald. The reason he filed the lawsuit is because mr. Obrien reported his net worth was 150 million to 200 million, and mr. Trump was very offended because he feels that his net worth is somewhere between 4 billion and 10 billion, depending on the day and his mood. [laughter] that particular case was dismissed on a motion for summary judgment. It was filed in new jersey state court, where they dont have a slap statute. It was dismissed because he couldnt prove actual malice. The case took five years. This is one of those instances where a slap statute would have come in really handy. Enormous expense, lots of toll on the journalist and his employer. 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 motives,lar similar similarly ridiculous facts. Each time he has lost. I should say that tim obrien was a times reporter, although the times wasnt sued. The book publisher was sued. In the deposition to that case, and this is pertinent to questions about whether the president lies are not or plays fast and loose with the truth, when they asked him what his net worth really is, which is essential in the case, his answer was it depends if i wake up in a good or bad mood in the morning, and thats what the facts depend on. It tells you something about where hes coming from. That deposition testimony has not been used more often in depicting his state of mind. Lets move to trump and the white house. 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. Has , has the opposite taken place . It has definitely come about. Until three days ago he has almost entirely communicated via twitter. I think it did not serve his purposes. Had him givee have two or three press availabilities you dont hold the press responsible and he is as living. That leads to trouble for smart you complicit in that . No, sir. But north korea is a good example of where he has run into trouble, and now he is on the International Stage time to make a case and if he does not have pressed to support his case, he is in trouble. I think what he has found is, yes, he revs up his base and he can cause trouble and get excited, but it he ended the day health careting him law, its not getting him credibility on the world stage. Its not giving him the personnel he wants. I think we have seen a fairly dramatic change in strategy. In what you say, a Good Relationship between the president and the press is important for any president . Is that true . I think the relationship is irrelevant. Communicating through press that andks beyond your small some would say shrinking base is important. Maybe that dynamic is over. Maybe you just go to twitter and by the way, the Obama Administration were not saintly in this regard at all. They tried to work around us as well. I dont think it served him well either. The press is how you do it still. It seems to me that if the tweeting strategy was to circumvent the press, it hasnt worked. They has stirred they have served in step one is a dialogue between the press and the president that begins a backandforth. It really doesnt have the effect i think it started out having. Is that right . Often what his own aides are doing is going to the press to straighten out the mess that is made sometimes with his tweets that contradict his own message. He loves talking about leaks. He loves wikileaks, but not other leaks. You never know which he likes and doesnt like. In this case, the leaks are helping straighten out his white houses own policy. What about his beating up on certain reporters, on sean spicers disinvited unfavorable reporters from a gaggle of reporters that generally everyone gets invited to . Is that a policy that has failed . Does it matter . It failed because they tried to do, they tried to shoot the briefings off of television, and it was this great punishment of the press. They had to reverse that because again, why would you not avail yourself of what trump knows to be the most powerful medium still in the world, television . Every administration has taken advantage of that and come back around to it. Is access to this administration about the same of the past two administrations . Weirdly it is in some ways 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 figure ive covered, and ive been covering politics for 20 years. Theres incredible access on the one hand when it comes to more public settings that they make a show of blocking access. Theres a schizophrenia to the whole thing. If you count leaks also as access to the press [laughter] its a bonanza. [laughter] any thoughts . Do you think the president should be allowed to have no press conferences almost . Do you have any view on that at all . To the extent that i have a view, i think it is probably somewhere in the middle. I think the president of the United States is the ultimate public official, and his duty and the discharge of his Public Office is clearly subject to being reported, to being reported. Where i drop off is this sense of entitlement or obligation to dialogue with the press in a particular way, to hold a certain number of press conferences, to put this particular person up. At some point, and i not sure where in the Trump Administration i think is the right and wrong point, but at some point he will be the president and you will report on him. I dont feel that the custom that has happened over the last x number of years with the waste president have acted with the press necessarily have to wait has to be the way this president does or any president does. I think it evolves as american Attention Span involves. I think the press have to adapt in the way they think about it. I commend the press in this administration for the way they have handled these challenges, and i agree with the comments. I think it is the opposite in fact that has been intended. I dont fully subscribed to the notion that the president owes a particular format or a particular number of appearances or answering two questions. The press doesnt have subpoena power. The press doesnt have any mandate other than to do their jobs and cover what is going on and report on it, but the president can dialogue with you as he wants just like anyone else. Floyd, if the president doesnt give the press access to the white house, doesnt have press conferences, disinvites or kicks out unfavorable publications from whatever press conferences there are, is any of that a basis of a legal lawsuit . We havent seen one so far, but the press seems to always be kind of mumbling about that come a certainly complaining. What would happen if Something Like that . I think the last example of one as to which there could be a very serious lawsuit is kicking out one member of the press or one newspaper or the like because the president s approves of their coverage thats the president disapproves of their coverage. There has been litigation like that in the past. There are some cases not involving president s. There i think almost discriminatory mistreatment of hostile journalists as viewed by the white house could give rise to litigation, but not all 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] he has that power to limit the communicative process in that way, just as the press has the power and look how effectively they used it of putting up pictures, putting up cartoons 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. But there is not a big role for the law here. This is going to be selfhelp, selfdefense, and sometimes some of aggression by the press in response. 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 . There is similar access. When you mentioned President Trump seeks to exclude press that hasnt viewed him well, it seems that ive bought the tshirt and seen the slogan on it. Lands in the early 2000s would have intimate little press conferences, there were a certain number of journalists who would get phone calls, text messages, that lance is ready to talk. He would pick out the journalists who would give him a fair hearing, and given the information, and nobody else. That was a real challenge for the journalists. They knew why they were being invited, and i dont think they handled it very well. I think they should have been much more robust in their reaction to what was happening. I think in the case of President Trump, journalists have reacted in the right way. The journalists invited havent forgotten their duty, and i think theyve done it pretty well. In relation to the u. K. , it is really interesting because as weve said and acknowledged, our libel laws are terrible. But at the same time, our Prime Minister would care wouldnt dare go after journalists and journalism and newspapers and tv stations in the way President Trump has because it just wouldnt play out well with the public. I think your best newspapers are better than our best newspapers, 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. Theres no chance that Prime Minister may would treat the press like donald trump has been treating the press. She would be in serious trouble. 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, so one of the roles that 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, because otherwise we wouldnt have anything. Theres no other mechanism in American Local and cultural life by which the president is put to the task of responding to that which his critics have said about him. You and floyd have mentioned the outpouring of the during this administration. Why is that . Why has this administration been leaked year than others and weeks of become the currency in which we have gotten news question mark i think theres a lot of reasons. President ll, the himself and as a page six reporter, i can attest to this was the source of lees. Reporter hethe called pretending to be his own agents, giving the Important News that sex with marla maples was the best he ever had . In my experience, he did not have to do that at the new york post. That was not where i was hoping to go. How can he now criticized leaks given that he was the leaker of a fictional person talking about his own sex life . Isit rich now that he criticizing leaks . It is one of many fascinating contradictions. There is a culture in this campaign where there are leaks where now white house people leak to position themselves. That arethe leaks competitions for his love. He finds that flattering. Theres a culture of leaking within the organization. Then there is what the supporters call the deep state, but which is legitimacy the bureaucracy, the policy expert, who have expertise that run counter to the president s policies, and then theres the actual Intelligence Community that feels it is being ignored and Donald Trumps supporters would say are trying to undermine him, which is antiestablishment. But i have never seen anything like it in my career and i am getting up there in age. Would you square what you just said with the fact that comes to legal jeopardy, legal threats that he has made, the threat to actually go after leakers, which every president , including president obama, have done, but more important, to go after journalists to publish the results of those leaks, which would be unprecedented, how do we square that with his happiness or lack of unhappiness about leaks in general . There seems to be a contradiction there. Floyd, do you want to try to answer that . Because i think floyd no, no. [laughter] floyd we dont square that. Not everything can be squared. He has different reactions to different leaks. Some are helpful. Some are harmful. Or because some are amusing or him, inng, he says, to some are not. When i think back as 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, and within a day or two, there were stories i had never read stories like that before. Stories about how the president insulted the australian Prime Minister, essentially hung up on him at the end of the conversation, took no account, certainly made no reference to those to the outstanding 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 , allegedly, to australia. Ago now, we got the entirety of the transcript of that conversation. Also, really unknown. Unknown in American History to get a fullfledged transcript of the discussion between a president and a foreign leader and there is good deal of condemnation for that. My view is whoever leaked that is a patriot. Valuablermation is so to be known so we can pass that,nt on our president whoever it was, and it could have been from australia, it could have been through other countries who listen into who knows what. It could have been someone from the state department. Wherever it was from, i think the public was greatly served by it, but it is something new. That is the sort of leak that did not occur, has not occurred previously. Though,hing about that that was flatly denied. It seems sometimes floyd not to talk. They said the way the the call was initially reported was absolutely untrue, fake news. You have situations where the leak is straightening the record out because theres so much falsehood imitating from that building. I was surprised in a sense that you said that because you have been critical of some of the week set of come out with the snowden disclosures that hit on Foreign Policy and foreign agents and so on. Can the u. S. Really conduct Foreign Policy if the beversation that appears to private conversations with another foreign leader in sub being leaked publicly . It makes it more difficult. There is no doubt. If that happens as a matter of course, it 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 with these snowden revelations, matters relating to the american intelligence category abroad, which i think is an entirely different category. When snowden makes available documents revealing that we were ,istening to chancellor merkel overhearing her calls or that the u. S. And norway and sweden had a secret agreement to 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 has the potential to be harmful in its revelation yeah, on that sort of thing, i would and did condemn, for whatever it means, snowden for releasing that. The vehicle, i believe, for leaks to be prosecuted is really through the espionage act, for the most part. Are all leak the same . Are leaks about politics or leaks about the russian investigation, can the government actually prosecute the leakers for that. Can they fire them or prosecute is that,inally, or say, for matters of National Security . Floyd is probably better able to answer this that i am, but we have seen people be prosecuted that are nonjournalists. The question is, will they take it to the next level and prosecute the journalists. I think that is the fear that they will use the espionage act to take it to the next level. Floyd, are all leak prosecutable . Floyd probably not, and the reason i say probably is we really have not had prosecutions of journalist for publishing. Nformation leaked to them the espionage act is 100 years. Ld this year there is been no litigation stemming from it with respect to. Ournalist themselves much litigation about government , andyees and the like theres a very Strong Defense journalists will have that it was not intended to cover them. At the same time, the language is very broad. It remains a level of uncertainty as to which journalist could be prosecuted for publishing certain obtainedon, which they from people within the government saying they do not have the authority to give it to them. Has never happened though that the government has sought to imprison or process even a journalist for publishing the information that should not have finley . They said the New York Times could be prosecuted. They could be prosecuted after the fact. And yet, that didnt have been. That didnt happen again for the with then i was there wiretap articles, even though president bush and Vice President cheney and others all said the times should be put behind bars. They didnt even try to do that. Why is that . Of the Legal Expenses . Is it just the tradition within dont try toyou put the press in jail . How do you explain it has never been tried, much less been successful so far, and therefore, wouldnt it be an incredible game changer if it were attempted in this administration . Generally president s do not go looking for great battles with the press. Its not generally in their interest. This would be a great battle. Yes, almost as an american cultural matter, the press has accused ofed, violating the espionage act. Answer, wew the cannot give a firm answer to the question of what would happen if they did. Two weeks ago, the assistant attorney general on television said that this administration would not prosecute journalists for doing their jobs. Repeating an earlier statement to that effect. But all im saying is its reassuring, at least to some because thear that law is by no means 100 clear. So, when you cite opinions from the pentagon papers case and 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. Going to betes are on page one of the brief. Whatever government first goes to court against the press, when there is some sort of espionage act prosecution. We can only hope there will not be one. Let me ask you you mentioned that the espionage act is vague and not very well drafted, although that defense seems to have been knocked down by some reports. What would be the defense of the journalist . In other words, i knew this stuff was not to be published. I knew that it was classified information. But i published it anyhow, but i didnt still it. I was just given it in an envelope a given it by a source. I did not ask for it. I was a passive recipient. What is the Legal Defense for the journalist. The Legal Defense is that was not the intent of the congress in 1917 when they passed of the law, that there were amendments offered to cover journalists, which were not adopted. So theres legislative history like response. It must be said, legislative history has a way of avoiding what one could argue is the text of statutes. It is increasingly outoffavor. , therefore an open issue as to how to read or how the courts will read some of this very broad language. Some of the other legal argument would be some of the sections of unless say no liability whatever was done was done with purpose of helping a foreign power. Thats a curious argument. It is in the text of some of the provisions, but not all, of the espionage act. Be that sort of issue would argued as well. Indeed, it was argued just a few years ago. There was a case brought in maryland. And the argument was the only way to make these that shoot not unconstitutional because of its vagueness is to import into its reading some notion of country orarm the help a foreign country. Those sorts of arguments would be made. What about the constitutional argument, george . It new argue before the Supreme Court the smith that the daily mail case . That it would be unconstitutional to publish information . Would that be an effective argument . Yeah, but the question is, are you doing something illegal . In those cases, there is no statute saying it was illegal to say this or say that, at least in some of the cases. In the settled cases. Yes, you can argue, look, truthful speech ought to be protected. Allhful speech in almost circumstances and maybe you argue about what the almost is. Question. Mate should the government be allowed to prosecute its own people for leaking information under the circumstances . Do you have any problem, floyd, jim, with the government going after Government Employees for leaking . Is that within their purview . Do we mind that . Alwaysurnalistically i mind that. Its a chilling move. Legally, if its within their rights, right floyd . Yes. [laughter] can do it. They look, the law must apply to someone. We cant have come the immunity for everyone we cant have complete immunity for everyone for every violation. And, yeah, actions against if all of these statutory terms are met, are constitutional. Let me ask you a less question. In the First Six Months of the new administration, i was interviewed and one of my worries were what we were talking about and i was asked, what did you at night . North korea . What keeps you up at night . Not north korea, but in terms of Company Press . Is it as bad as you first audit might be . Im three things keep me up at mine. One, the legal prospect we are this isabout now where a cudgel to silence reporters. Gets so badtoric that there is violence and somebody gets hurt, god for bid. Somehowe, it would be this work to delegitimize actual truth keeps progressing in a way that destroys any concept of even so our democracy is regressed. Well, on that uplifting note [applause] [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] tonight on cspan, Supreme Court Justice Elena kagan in conversation with margaret marshall, retired chief justice of the massachusetts Supreme Court. Justice kagan talks about her career, including her first oral argument as solicitor general. Heres a preview. Justice kagan so, my heart is beating really hard. Literally, this is the only time known whati have that expression means. I could not hear anything because of the pounding inside my own body. I thought, going to do this . I got up to the podium. Toi thought, however i going do this . I memorized, as people do, three or four sentences to start with. Fairly anodynea sentence, at the end of the first sentence, Justice Scalia leaned over the bench in this way that i grew to know that he short i made a declarative sentence, and he wait, wait. Ait, [laughter] Justice Kagan except he said it even more strongly than that. It was the best it was the absolute best thing that anybody could have done because it forced me to be in the game right away and my own feeling is he knew that, that he knew from sayingound of my voice that single sentence that i was a little bit shaky and he was going to put me into the game right away and if somebody challenges you you have to stand right back and that is what happened and it turned out fine. Watch more of Supreme Court Justice Elena kagan tonight at 8 p. M. Eastern here on cspan. Cspan. Where history unfolds daily. In 1979, cspan was created as a Public Service by americas Cable Television companies, and is brought to you today by your cable or satellite provider. The Associated Press reported floodwaters have inundated at least five highly contaminated toxic waste sites near houston, raising concerns. The story is epa spokeswoman amy graham could not provide information on when Agency Experts would inspect sites, but she said that epa sites have checked on feed of other sites near Corpus Christi and found no significant damage. President trump continues his visit to texas this afternoon. Reporter markuse noller tweeted that while there, the president reminded texans that tomorrow is a national day of prayer for storm victims, saying go to your church and pray. Here is a look near houston