- Journalists play a vital role in the health of a free society.

But today's guest isn't a journalist, he's a lawyer reporting from the front lines of the battle for freedom in the press.

He's David E. McCraw, this week on "Story in the Public Square".

(upbeat music) (upbeat music continues) (upbeat music continues) Hello and welcome to "Story in the Public Square", where storytelling meets public affairs.

I'm Jim Ludes from the Pell Center at Salve Regina University.

And my guest this week is David E. McCraw, Senior Vice President and Deputy General Counsel at The New York Times.

That makes him the lead newsroom attorney for the venerable institution.

He's also the author of "Truth in Our Times".

David, thank you so much for being with us today.

- Well, thank you for having me.

I appreciate the opportunity to talk about these issues.

- You know, so, lead newsroom attorney.

What exactly does that mean?

- Well, every day it means something different, but in the broadest scale, think of it this way, that in the arc of the way a story gets from a reporter or editor's idea into publication, my team will have a role in helping to see that whatever legal needs are met along the way.

That may be access to information.

That may be a question about news gathering.

It will involve, in many cases, reviewing the story before it's published to make sure it's legally sound.

And if, in fact, someone complains about the story afterwards, we'll be involved with that up into including litigation.

- Is that something that most major newspapers, do all papers have a newsroom attorney?

- There was a day.

(both laughing) I would say as the industry has struggled a little bit financially over the last couple decades, less likely to see that.

They will depend on outside counsel, or do it yourself, if you will.

But we have really doubled down on this.

We've become bigger, we have increased our circulation.

And when you increase circulation, when you're doing more ambitious reporting, what that means is that you're likely to bump into the law now and then.

- Does that give, you think, the Times a competitive advantage, that you're investing in this?

- I hope so.

(both laughing) It allows us to, I think, withstand some of the pressures that others feel.

One of the things that's been a really serious problem for smaller news organizations, for nonprofit news organizations, is the threat of litigation that people in power sometimes lob at them to avoid unflattering coverage.

And a lot of things are being done in that realm to try to help with that problem, but we do not want to be in a position where, because of somebody's threat, that we don't tell the public something the public needs to know.

- Well, and we're gonna talk about some of that litigation that the Times has been subjected to and that you've been a part of as well.

But how did you come to this role at the Times?

This is not your first stop as a lawyer working in newspapers.

- I actually began as an in-house lawyer at the New York Daily News in 2000.

Came to the Times in 2002.

I had a background in journalism.

I have a journalism degree from the University of Illinois.

I worked in journalism.

I think it's safe to say no one cried the day I left journalism.

I think I'm a much better position to do my bit to help journalism in my current role as a lawyer.

- I think you're being modest, because I read your book, "Truth in Our Times", and it is beautifully written and a tremendous read.

We'll talk about that in a little bit as well.

But what is it about the work as a lawyer working in the news industry that still resonates for you today?

- I think it's a couple things, Jim.

One is it's really exciting to be involved in the creation of the stories, to see them come together, to see someone who has an idea, a reporter or an editor has an idea, and then at The New York Times, many times months later, but days later, weeks later, months later, to see that story actually come into being, and see it influencing decisions made in society.

So, that part is, I think, interesting, and part of the thing that engages me.

The other thing though is it's just an interesting area of law.

I've taught this area of law in law schools for, well, almost 20 years now, and it stays fresh.

It's an incredible look at the history of the country, because these cases were decided in the '60s and at a time of civil rights turmoil, followed by Vietnam, and you just hear those stories of how courts came to understand the press was important, and to carry forward that legacy as a lawyer is an honor, and also just an incredibly good intellectual challenge.

- Was that the plan, as it were, when you left journalism to go to law school?

- No, I actually never thought about it very much.

It just sort of happened.

It was one of those things where I had a background and interest, obviously, in journalism, but after law school, I was working in a very straightforward commercial litigation position at a big law firm, and the job became open to the Daily News.

I was fortunate that I had a boss who saw I had one thing that no one could dispute, and that was I was older than most of the other people who graduated from law school when I did.

I didn't go to law school until I was in my 30s.

And fortunately had a very good boss who thought that being able to get somebody who was older was gonna be valuable for dealing with journalists and dealing with the public.

- Well, so, a few years ago, you wrote, I mentioned this excellent book, "Truth in Our Times: Inside The Fight for Press Freedom in the Age of Alternative Facts".

I read that to get ready for the conversation we were gonna have today.

And, you know, you trace the first term of the Trump administration, the first couple years of it anyways, through the context of the President's fraught relationship with the press.

Donald Trump is not the first president to have a fraught relationship with the press.

What made his relationship, though, new, novel, unique, compared to the presidents who came before him, particularly as it has to do with the American press corps?

- Yeah, I think there's a couple things there, Jim.

One is that most of the people who were in office as president and didn't really like the press, avoided the press, tried to minimize it, Donald Trump spends a lot of time, he's one of the most accessible people to hold that office, spends a lot of time meeting.

Now, a lot of those are informal.

A lot of those are sort of catch as catch can.

But he likes the give and take of the press, and he's not scared to tell the reporters what he thinks of them.

So that, I think, is a bit different.

The other thing, though, is that even a president like Richard Nixon, who really, really didn't like the press, at least thought that he should pay lip service to the idea that a free press was important.

We don't really hear that much from President Trump.

He really has a view of this that the press has thwarted what he wants to do and therefore is not good for America.

We obviously take a different view on that particular question.

- So I mean, you think about his rallies where he refers to the dishonest press in the back and he points at the cameras, or even calling journalists the enemy of the people, does that translate into actual physical danger for people working at The New York Times, or elsewhere for that matter?

- It certainly has for other reporters.

We haven't had that particular problem at the Times.

But it creates an atmosphere of fear, obviously, which is compounded because online supporters will come on and lob threats on social media, engage in the kind of speech that's engendered to make people not want to do the important work.

And I think that's one of the things that I would come back to here, is that whether a president is saying flattering things about reporters or whether a president is saying demeaning things about reporters, that doesn't really change the job.

We stress over and over again that we're gonna continue to report.

We are not in this adversarial relationship in the sense that he has an agenda, we have an agenda, and we disagree.

The adversarial relationship is that one that's been traditional, baked into the First Amendment from the very beginning, which is that we are there to hold government accountable, and we plan to do that fairly, we plan to do that independently.

- Has that approach by this president changed now that he's in his second administration?

- Not really.

I think he has certainly taken more steps that people would perceive as antiprecedent in the first administration.

We see the use of the FCC to threaten broadcasters.

Last week we saw a Washington Post reporter have her home raided in a leak investigation.

This is dialing up the attack on the press in ways that we hadn't seen in the first administration.

And as you know, Donald Trump personally sued the New York Times in the fall, and again, that's unprecedented.

We haven't seen that before.

So I think that at least from what it looks like to the public, this is an administration that is more aggressive than the first administration.

- And I sort of want to dive into both of those, some of the issues that you've raised right there.

Let's start with the lawsuits.

So, how many times has he sued the New York Times, and what's the current state of that litigation?

- Yeah, so there have been three times when Donald Trump has sued us.

In one of those cases, it was actually his campaign organization, but let's call that one as one of the three.

They sued us in 2020 for libel.

We got that case dismissed on a motion very quickly.

And then he sued us, bizarrely, for tortious interference with a contract.

I won't bore your viewers with exactly what all that means, but essentially, his point was that some of our reporters had induced his niece to provide records to us, and that he had a non-disclosure agreement with that niece, therefore, we had wrongly induced her to give us the documents.

The court rejected that too, and we won that on a motion to dismiss.

And important to us, we also won our legal fees to be paid by him.

The current one is a straightforward libel suit that he has brought, involving two stories that we did.

And he's also sued the publisher, Penguin Random House, which published a book by two of our reporters.

That book was adapted for an article in the Times.

That article is one of the two articles that he sued over.

- And the current status of that, I'm gonna let you explain the current status of that suit.

- Yeah, so he brought that suit in Tampa in the Middle District of Florida, federal court, and we have filed a motion to dismiss.

That motion practice is going on right now, and it will take a few months to sort all that out.

And obviously, if we win a motion to dismiss that, we'll end the case except for any appeal he brings.

If we lose, it would then go into discovery, with depositions and documents exchanged.

- So, you know, I'm not gonna ask you to comment on other suits against other media companies, but The New York Times has not been the only one at the end of the dagger, as it were.

And I would note that Paramount, CBS News settled for $16 million after being sued for 10 to $20 billion for allegedly selectively editing an interview with Vice President Harris.

ABC News paid $15 million in their settlement.

Others have settled.

Why has The New York Times decided to fight?

- We think our stories are right, and we do not want to confuse the public by sending money when we are confident that we've told the truth.

We have long had a policy of not settling for money any libel suit in the United States.

That actually dates back to the '20s.

There's a letter that our publisher in the 1920s wrote to a lawyer who had settled a suit for a few thousand dollars, and the publisher's complaining, that's not how we operate.

We got something wrong, let a judge tell us that, let a jury tell us that, but we're not going to settle.

We think that actually has had the benefit of reducing the number of suits that we see, that people understand if you're going to sue us, we're going to stand up for our journalism.

Obviously if we had something wrong, we're gonna correct it, but in litigation, we're going to assert our rights.

And we just find that from very basic tenet of libel is that if libel is misused, if libel suits are misused, if they are used not to remedy somebody's harmed reputation, but instead to intimidate, that's very bad for the American public, because you're going to have a press that isn't standing up.

- And that I think goes to another question I wanna discuss.

To the extent that we can understand what motivates these suits that the President's bringing against media companies, against journalists and their publishers, is it that simple, to try to intimidate or to influence coverage that might come forward?

- Yeah, I'm not going to speculate on what the motivation is for any given suit that President Trump brings, but I think we can look at this historically.

In 1964, the Supreme Court decided the most important libel case in American history, Times versus Sullivan.

That was a case where a Southern police commissioner, L. B. Sullivan, had not liked what The New York Times had to say, in this case, through an ad, but did not like the publication of racist activities by officials in the South, suppression of voter rights, suppression of civil rights in the South.

And the Supreme Court saw that the libel suits that Sullivan and others were bringing were not designed to help save a reputation that had been harmed by a falsehood, they were being brought to try to keep the Northern press from covering the civil rights movement.

And the Supreme Court said, "We're gonna set a new standard.

We're gonna make sure that these suits are not being weaponized," the term we had used today.

And to me, that's the real danger, is not that there aren't valid libel suits, there are, but that when they are brought to inflict costs, when they are brought to intimidate, when they are brought to make it not worth the trouble to cover people in power, that is a problem, and it's a problem for the American public, 'cause the American public needs to have access to stories that matter.

- So you mentioned this.

About a week before we taped this, the FBI searched the home of a reporter for the Washington Post.

Again, a rival newspaper.

But you've had experience with the federal government in other administrations being interested in the sources of confidential information that appears in The New York Times.

How frequent are these investigations?

And I think you mentioned that this is unprecedented, though, that they would actually search a reporter's home.

- Yeah, so let me distinguish a couple of things here.

Interest in sources, that's not surprising.

And over time, it doesn't happen every month, every year, but it's one of those things that comes up from time to time.

And the second thing is the use has happened in the Washington Post case of a search warrant, the most intrusive way to get at somebody's secrets and documents, and in this case, digital media.

The federal government, dating back decades, has had guardrails to try to limit, and in some cases, eliminate, when federal officials, federal law enforcement, can go after news organizations for their sources.

Really important topic, that I think we now have been exposed to enough wrongdoing and enough press uncovering wrongdoing to know that sources matter, that sometimes, those sources have to be confidential.

Do we wish we could name every source we ever write about?

Yes.

But confidential sources help tell the truth, and professional journalists from time to time are gonna have to rely on them.

So the federal government has had guidelines for decades limiting how and when federal law enforcement can go after sources and reporters' information.

So, that principle is important and still in play here.

What is particularly concerning about the rate on the home of the Post reporter is that not only was that principle set aside, not only was it decided to go very quickly to try to get information from the reporter, but the use of a search warrant.

In 1980, the Congress passed and the president signed a law which limited when a search warrant could be used.

The idea was that the government, if it decides it needs information from a reporter, it should serve a subpoena.

And here's the real difference.

If a subpoena is served on that reporter, she then can go to court and challenge it.

And only if the courts agree is she going to have to turn over material.

Search warrant doesn't work like that.

The government goes into court on its own, gets a judge to sign a warrant, they seize the things that they want, and in effect, the stuff that should be protected is already in government's hands.

- So this is an escalation, in that respect.

- It certainly looks like it.

We don't know all the facts.

We may learn something along the way.

But at this point, it certainly seems to be an escalation.

- So in late 2025, the Times sued the Department of Defense over some of the policies and restrictions that it was trying to place on reporters covering the Pentagon, covering the Department of Defense.

What's at stake in that case?

- I'm glad you asked this, because I think there has been some fog about what exactly is going on here, and some of that's created by the Pentagon.

It's a very simple point.

The Pentagon put into place new regulations concerning the press passes that are issued to reporters.

Press passes are used by the reporters so that they can go in the building, they go to press conferences.

They can be at the scene, at the Pentagon, to gather news.

And Pentagon decided to change the rules.

Traditionally, those rules had been that you were a legitimate reporter, you worked for a news organization, here's your press pass, and you agree that you won't go into places you're not supposed to in the building.

This was different.

This press pass required that reporters not publish anything that hadn't been authorized.

In other words, that if you found out something that the Pentagon did not want you to tell the public, which is a whole lot of what reporting is about, then they reserved for themselves the right to take away your press pass.

And the thing about that was it was not just at the Pentagon.

If you had a press pass and you happened to do reporting at any base, anywhere in the world, with sources anywhere in the world who were military employees, that you could lose your press pass.

That is a threat that just is counter to the way things have been done for decades and decades.

The Pentagon has had reporters present from World War II forward, as far as I can tell.

It goes back that far.

And that there was no great emergency here.

There was just reporters trying to do their job.

- Yeah, and I would think that those kind of restrictions would sort of gut the ability of... Or they'd certainly make it tremendously more challenging for reporters to do the kind of reporting that they typically do.

In your book, and just in talking with you, it seems like the frame for you is that this is about a defense of press freedom.

What do Americans lose if the freedom of the press is curtailed?

- Yeah, so, and this comes up in the Pentagon case, because look, we continue to cover the Pentagon.

We've done some incredible reporting just in the last month about Venezuela, press pass, no press pass, 'cause everybody, all the mainstream media, when these new rules came in, and including Fox News and Wall Street Journal and organizations that are seen as more aligned with conservatives, nobody wanted the press pass under the conditions the Pentagon was giving.

And so they walked away.

Are they still reporting?

Yes, they are.

But to have that press pass means that the people who had the press pass are the people who are the most expert, the reporters who had the greatest expertise about the military.

They shouldn't have the shadow of it might be revoked hanging over them.

And that goes to, really, the heart of the question you're asking, Jim, which is that the idea is an independent press can hold the government accountable.

There are things that will happen every day in The New York Times that you as a reader don't like.

(chuckles) And if you happen to be an aficionado of Fox News, they'll do things you don't like.

There's no question about it.

But the response should not be to sort of reject the whole idea of a free press.

The idea should be to do what we do as citizens, and that is demand better of your institutions, whether that's a government or whether that's a news organization.

And that ability, that ability to hold the government accountable, to ask hard questions, is how we get better as a country.

That's the constitutional order.

That once all of the traditional news organizations left the Pentagon, they were replaced by social media influencers who share the administration's agenda.

And I understand why the administration would want that, but it's not a good development.

It's not a good development for the country.

There is, that comes out of that tension of a press seeking accountability, a better government, less ways, the government is responsive to what the public needs.

- Yeah, do you... We've got about a minute left here.

One of my great joys is watching old movies, and there's a classic film from 1940, Alfred Hitchcock, "Foreign Correspondent", and Huntley Haverstock, the enterprising reporter who's cracked this espionage case, is introduced to the audience as one of the soldiers of the press.

In the last 30 seconds that we have here, what is the role of good journalism in the United States in 2026?

- It's pretty simple, Jim, and that is to tell the truth to the best of their ability.

We're not always gonna get it right, and if we get it wrong, we'll correct it.

But to pursue those stories that matter, as The New York Times has said for more than a century, without fear or favor, is really at the very heart of the mission.

- It's important work.

David McCraw, thank you so much for spending some time with us.

That is all the time we have this week.

If you wanna know more about "Story in the Public Square", you can find us on social media or visit salve.edu/pellcenter, where you can always catch up on previous episodes.

And thank you for making us part of your week.

We'll see you next time for more "Story in the Public Square".

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