The PEN Pod: On the Conclusion to a Landmark Lawsuit and Setting the New Precedents of Free Speech with Suzanne Nossel
Every Friday, we discuss tricky questions about free speech and expression with our CEO Suzanne Nossel, author of Dare to Speak: Defending Free Speech for All, in our weekly PEN Pod segment “Tough Questions.” In this week’s episode, we discussed a Trump lawsuit settlement years in the making, a new case of censorship in Australia, and we return to the topic of an ex-New York Times reporter to follow up on the implications of what “cancel culture” even means. Listen below for our full conversation (our interview with Suzanne is up until the 14:16 mark).
So Suzanne, let’s start with some big news in the courts for us this week. We settled our lawsuit against President Trump with the U.S. government, essentially agreeing that no president can use the First Amendment as an excuse to attack the press. After two and a half years of litigation, is this how you thought the story of the suit would end? Are you satisfied?
Look, when we brought this case to the court, we were alarmed at a pattern of threats and acts of retaliation by President Trump and the Trump White House against both individual journalists and media organizations, and we argued in the case that these threats and acts of retribution were aimed to create a chilling effect to deter criticism to stifle dissent. We actually did a survey of writers and journalists across the country to substantiate that the messaging out of the White House in this kind of menacing tone—that the Trump administration had taken toward the media—was having a chilling effect and causing some journalists and writers to think twice about going after the administration. Of course it’s also true that there has been a tremendous amount of hard-hitting investigative and daily reporting about the Trump years so we were glad to see that, but we nonetheless felt it was a clear violation of the First Amendment for the president to invoke the power of government to crack down on coverage that he disliked, so we brought the lawsuit.
“That precedent, we believe, will lead other officials in positions of power to really think twice about going after journalists or trying to exact retribution for unfavorable coverage because now they know that they won’t be protected by the First Amendment. It’s not simply just a matter of speech when you’re actually threatening people, much less using the power of government to make good on those threats.”
One thing that was not a surprise to any of the lawyers working with us—I’m a lawyer by training, but I don’t practice day in and day out—was just the pace of a process like this in the courts really doesn’t keep up with reality, so the case was in motion for more than two years. Meanwhile, the Trump administration continued with its pattern of hostile rhetoric. Perhaps you could argue they were a little bit constrained in certain respects and there were some other cases challenging their revocation of press passes in the meantime, but what we got back in April of 2020 was this very gratified ruling by the court that our case was good to proceed. The government had challenged us with a motion to dismiss, arguing that we lacked standing, that we were not in a position to bring a claim like this on behalf of journalists and that the basis of our claim was spurious, it was not something upon which a court could offer relief. The court rejected that and basically said, “No, you can bring a claim saying that such actions by a sitting president violate the First Amendment, and you are in a position to go forward and vindicate the rights of authors and journalists,” and so, that was the ruling back in April.
The government then wanted to challenge it up on appeal, and it was going up on appeal. Of course then the election intervened, and President Trump was out of office. Once that happened, we entered into a discussion with the government about the disposition of the case, and the key thing is that they agreed to let that important lower court ruling stand. So the ruling that a case like this—alleging that threats and acts of retaliation by a sitting president violate the First Amendment—is a perfectly viable claim and a legally cognizable claim, and so that precedent, we believe, will lead other officials in positions of power to really think twice about going after journalists or trying to exact retribution for unfavorable coverage because now they know that they won’t be protected by the First Amendment. It’s not simply just a matter of speech when you’re actually threatening people, much less using the power of government to make good on those threats, and there is a conduct cognizable claim and that people will be in a position to make that claim. So that’s an important stride and step forward that we achieved through this suit.
It’s just an exciting moment. I wasn’t here when the suit was filed, but I know that when it was coming together, there were people who doubted it, there were people who thought we didn’t have standing, that we couldn’t actually bring the lawsuit, and that we were representing our journalist Members—people like CNN’s Jim Acosta and Playboy’s Brian Karem. This feels like a vindication of that strategy and that we should be grateful we did it.
No, it’s true. There were questions even by some really noted First Amendment lawyers and scholars just because the case was novel. I mean, we had never seen a president who acted in such an overt way toward the press, and so, it hadn’t really been tested whether a claim like this could be brought on the basis of the First Amendment. I think we’ve broken some important new ground here.
“The result of that, for Australian news outlets, is going to be based on precedents we’ve seen in Europe—pretty grievous—and that they’ll see a drastic reduction in traffic to their sites, which will hurt their financial fortunes even more. And so, for the moment, it’s a standoff.”
Let’s quickly pivot to Australia because why not, where this week Facebook said it would stop users and media companies from posting links to any news articles, and it came as the legislature there is proposing new rules that would force tech companies like Facebook to actually pay news outlets for the content that’s shared on their platforms. This seems like a really aggressive tactic by Facebook. What’s your take?
Look, it is. This is a problem that is by no means confined to Australia—it’s something that we documented in great depth in our report last year, Losing the News: The Decimation of Local News and The Search or Solutions, and it’s about the migration of advertising dollars from print media to online platforms. Here in the United States, we’ve seen this tremendous shrinkage of the milk and consolidation of the local news sector, the drying up of newsrooms, the reduction in reporting staffs all over the country, the shuttering of venerable brands and news media at the local and city level. So it’s a huge crisis for local news.
The dollars that used to support that news through classified ads and those big full-page display ads in papers have migrated to places like Google and Facebook, and so the question is what to do about that. One of the ways that Google and Facebook have made so much money is by being a conduit for the sharing of news. It’s compiling up-to-the-minute information.
Yesterday, for example, the death of somebody like Rush Limbaugh and just millions and millions of people are sharing that news and information, and to date, Facebook and Google have not had to pay anything for that. In fact, the news outlets that do the actual reporting are dependent upon them to drive eyeballs and clicks. And so Australia—and they’re not the first ones to do it—has been looking at this law that would force the platforms to pay for news content that is distributed and shared through their systems, and Google and Facebook have taken radically different approaches to this. Google has actually sort of stepped up and began negotiations with news outlets and arrived at terms, for example, with News Corp—which is very powerful in Australia—to remit and pay back for each time that a News Corp article is shared or viewed on the Google platform. Facebook has taken the opposite approach saying, “Well if you’re going to force us to pay for it, we’re going to shut it down entirely, we’re going to essentially force you to go dark,” and the result of that, for Australian news outlets, is going to be based on precedents we’ve seen in Europe—pretty grievous—and that they’ll see a drastic reduction in traffic to their sites, which will hurt their financial fortunes even more. And so, for the moment, it’s a standoff.
I think Facebook is getting a lot of really terrible press. Apparently they managed to shut off not just news, but also public safety information from fire departments and the Bureau of Meteorology, and health information related to the pandemic. So I think they’ll come under tremendous pressure from a public interest standpoint not to take such a draconian stance, and to come to the table. They pay lip service to the idea that they want to support local news and they have all these itty-bitty programs that aim to do that, but they have really turned their back on the quest for a more comprehensive solution that will keep local news alive—and I think that’s what these Australian regulators are going for. I think no one quite knows how to make it happen.
“We may feel in a given instance that such a punishment is warranted and well justified—the person really said something they shouldn’t have—but once the authorities have that power, what we generally see is that they’ll use it in ways that suit them to reinforce their own prerogatives very often to muzzle dissent and criticism.”
It seems like a strong negotiating tactic, if nothing else. Last week, we talked about a New York Times reporter who resigned over the use of a racial slur. Increasingly we’re seeing these stories flare up and people keep using this term “cancel culture.” I’m just curious, generally speaking, is that even a term that still has meaning for you—and where do you think the next fights are over canceling or deplatforming? Where are they likely to take place?
I think the term is highly elastic and gets used for all sorts of things. I also think there is a very kind of real phenomenon that we’re grappling with where we’re by the day hearing about different people who are coming under fire, or stepping away from their jobs, or being removed on the basis of things that they said. There’s a spectrum when it comes to cancel culture—some people are canceled for really grievous conduct, they’re harassers, they’ve stolen, they’re anti-vaxxers who are thwarting the authority in public health, and so that’s one thing. I think a lot of us have no objection whatsoever to those people being shown they deserve to be shunned.
Then there are a lot more gray and in the middle cases where the person is not necessarily culpable for anything—it’s a fleeting act of speech, maybe even a single word that they’ve uttered. Perhaps they’ve apologized, perhaps it’s clear that they didn’t have any maligned intent, and yet there’s this sense—and I understand where it comes from amid this long overdue racial reckoning that we need to instill accountability—that the only way change is going to happen is that if there are consequences, visible and painful consequences, for people who have not gotten with the program in terms of the imperative of eradicating bigotry and dismantling systemic barriers to access an opportunity. So that is sort of what is at work here.
I think we’re in a particularly kind of pitched period for these sorts of controversies. In individual instances, the outcomes can be unfair and suboptimal. At a larger level, I have a concern about how this chills speech. Yes, we want—and I talk about this in Dare to Speak: Defending Free Speech For All—people to be conscientious. We want them to exercise a duty of care, particularly when they’re in positions of responsibility. We need people to be more aware of how language lands with different groups of the diversity in the audiences to whom they’re speaking, but I don’t think that should mean what I’ve called a strict liability for speech. If someone reacts negatively to anything you say, you are 100 percent responsible for that reaction regardless of what you intended, so that’s an aspect of it that troubles me.
Another aspect of it that troubles me is that very often, these calls end up focused on those in positions of authority—supervisors, bosses, institutional leaders, universities—asking those authorities to punish individuals, and what that does is just put license and legitimacy in the hands of those in positions of power to exact punishment on the basis of speech. We may feel in a given instance that such a punishment is warranted and well justified—the person really said something they shouldn’t have—but once the authorities have that power, what we generally see is that they’ll use it in ways that suit them to reinforce their own prerogatives very often to muzzle dissent and criticism. So I think we should be leery of conferring that power, and that’s something that I worry is falling away as this cancel culture takes hold.