Muckrakers Beware

Jonathan D. Glater* June, 2026

Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful. By David Enrich. New York: Mariner Books. 2025. Pp. xi, 268. Hardcover, $32.99; paper, $19.99.

Th’ newspaper does ivrything f’r us. It runs th’ polis foorce an’ th’ banks, commands th’ milishy, controls th’ ligislachure, baptizes th’ young, marries th’ foolish, comforts th’ afflicted, afflicts th’ comfortable, buries th’ dead an’ roasts thim aftherward.¹

Introduction

However noble a journalist’s goal in disclosing the misconduct of the powerful and thereby afflicting the comfortable, one risk when doing so is the possible vengeance of those who would prefer to avoid accountability. Informing every aspiring muckraker’s pursuit of the story is—and, really, should be—the fear of getting it wrong. What facts can and must be established, and how certain of those facts must the journalist be? The reporter’s calculus must consider the potential cost of a mistake; the financial risk of an adverse libel verdict can shape which stories are told.

This fundamental calculation underlies the story David Enrich² tells in his latest book, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, which describes the legal skirmishes (and even outright battles) that determine when someone subjected to media scrutiny can invoke the judicial branch to impose punishment on the scrutinizer. These battles are not new; powerful people have tried to rein in the press in the United States since the Founding. Alexander Hamilton famously criticized news coverage that “disturb[s] the peace of families,” however accurate the reporting might be.³

One way to shift the balance of power against journalists is to change the law governing defamation claims. The less an aggrieved plaintiff has to show in order to collect damages, the greater the deterrent effect on newsgathering and the higher the potential legal costs of engaging even in nonnegligent, libel-proof reporting. The easier it is for someone to make a successful argument that public attention is unwanted and unjustified, the easier it is to deploy the machinery of libel law. These are two critical doctrinal levers: determining what a plaintiff must show (the evidentiary burden) and which kinds of plaintiffs enjoy more protection (the scope of protection). Enrich’s review of case law demonstrates how the rich and powerful have tried time and again to move these levers in their favor.

The Supreme Court set the rule applicable to libel claims by public officials in 1964 in New York Times Co. v. Sullivan.⁴ This unanimous landmark decision determined that a successful libel claim by a public official requires a showing of “actual malice,” meaning the plaintiff must show that an allegedly defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”⁵ This is a high bar, but Enrich shows that it is not insurmountable⁶ and suggests that, in fact, this is an appropriate hurdle to require plaintiffs to clear (p. 5). Murder the Truth is not just about libel as a tool to constrain the news media: It is the Sullivan standard that is at the core of the book (p. 4).

The book is clear and the writing is inviting, sometimes jumping forward and backward in time to follow cases that might have overlapped,⁷ or to emphasize apparent changes in the perspectives of key players like Supreme Court Justice Clarence Thomas (pp. 24, 131). Enrich always returns to a dominant concern: that powerful people try to use money, power, and the law to prevent or punish reporting. Despite the gravity of its subject, Murder the Truth is a fun, smooth read. Enrich may overstate the likelihood of a Supreme Court opinion dramatically reshaping the law of libel, and he does not spend time identifying potential incremental changes in the law that could have significant repercussions for reporters. But through his methodical account of how litigation can be and is used to threaten investigators, Enrich makes clear that the law does not need to change to alter or deter news coverage. The virtually unlimited financial resources of many of today’s wealthy and powerful mean that litigation costs may be more of a burden and risk to publications than to the people they write about.⁸ If anything, Enrich understates the significance of the financial risk of litigation and its consequences for newsgathering organizations.

Enrich’s project matters tremendously to this historical moment, in the middle of the term of a president who has routinely attacked the media. Traditional newsgatherers⁹ have experienced frequent and overt attacks from the White House,¹⁰ intense political battles over the meaning of free speech,¹¹ and a dwindling pool of media entities with the size and scale to keep up with the news and defend themselves against attacks by those they report on.¹² Enrich’s topic is timely, even if the ultimate result of attacks on the Sullivan standard is not the overturning of precedent at the Supreme Court. The aforementioned hostile political environment, declining revenues,¹³ new owners with different priorities,¹⁴ proliferation of misinformation, and other changes in the media world¹⁵ all make questions about who covers the news and how they cover it desperately important. Because newsgathering is addressed by the First Amendment,¹⁶ this project engages profoundly with law. Even if the ongoing campaign to change the law in favor of the powerful fails, the warning Enrich sounds about the vulnerability of the news media is still urgent. This is because defending against libel claims can be costly, and the prospect of liability can affect what reporters investigate (pp. 172–73).

From the beginning, Enrich makes his sympathies clear: He is not a lawyer but a lifelong journalist¹⁷ and a believer in the mission to pursue the truth, hold the powerful accountable, and get the story as right as it can be gotten. As he recognizes in a preliminary author’s note, he “believe[s] in [his] profession’s fundamental mission: to inform the public and hold the powerful to account” (p. xi). What’s more, he has tremendous faith in his fellow journalists because, “based on [his] experience, [he] believe[s] that most journalists—though . . . by no means immune from mistakes—try to live up to that mission” (p. xi). As a former journalist myself,¹⁸ I share this idealistic perspective. But perhaps because I am now on the outside looking in, I do not worry only about traditional journalists—who are the focus of Enrich’s book—but also about newcomers to the field and about the people they cover.

This book does not reflect on the state of journalism, the implications of corporate consolidation, or the simultaneous explosion of online content, some of which is journalistic. Nor is Enrich concerned with Sullivan itself, which is already the subject of at least two smart and comprehensive book-length treatments.¹⁹ He does not concern himself with the potentially difficult fact of institutional power wielded by news organizations themselves or the reality of biases—intentional and not—on the part of reporters and their editors. In Murder the Truth, good faith on the part of the journalist is a presumption that goes largely unrebutted, even if the newsgatherer’s exercise of judgment in pursuit of the story may be questionable. The only rebuttal comes in Enrich’s discussion of the litigation and enormous settlement of a defamation claim against Fox News (pp. 230–42), whose on-air personalities privately discussed the falsity of their statements almost as they made them on the network’s programs.²⁰ The case against Fox News did not go to trial or produce a final legal opinion elaborating on the meaning of Sullivan, so perhaps it is not so relevant to the argument of the book. But the size of the settlement suggests that a number of top-dollar defense lawyers thought the defamation claim was strong.²¹ The real possibility of bad faith journalism is a problem for any defense of press freedom, even if the response is that the Sullivan standard²² still provides a remedy when the circumstances warrant one.²³

A disparate group of wealthy and powerful people and their advocates, who are convinced of an imbalance between the rights of the press and the rights of the people covered by the press, drive Enrich’s story. The rich and aggrieved (like the billionaire Peter Thiel) and their lawyers (like Charles Harder) pursue newsgatherers through the courts, sometimes directly and sometimes surreptitiously.²⁴ Their ultimate objective is reversing Sullivan (pp. 6–7). Again, whether the campaign to undo Sullivan succeeds or not, the examples Enrich has gathered are not reassuring. It is not necessary for the Supreme Court to reconsider Sullivan in order for the prospect of litigation to have a deterrent effect on investigative journalism. Indeed, journalists and Supreme Court scholars do not believe that such a break with precedent is likely.²⁵ But Enrich skillfully weaves together newsgatherers’ investigations and the litigation that ensues to make clear to the reader that there is cause for concern for those of us who prize press freedom.

The discussion that follows has three parts. Part I sets the doctrinal stage, explaining the well-established test that a libel plaintiff must meet in order to collect damages from a news organization or other defendant accused of making a false and harmful statement. Part II turns to Enrich’s description of the efforts of rich and powerful people and their lawyers to get that test changed, as well as to weaken the laws and lawyers standing in their way. Part III considers the current newsgathering landscape, noting that the stories Enrich has collected suggest that the rich and powerful are already winning, and that the scrupulous care with which he reports is itself further evidence of the difficulty, risk, and cost of pursuing facts even though the law has held steady. This Review concludes by returning to the possibility that the Supreme Court will revisit Sullivan.

I. The Doctrinal Battleground

The Supreme Court developed the actual malice standard in Sullivan to address libel claims. In 1964, The New York Times faced a suit in Alabama after the newspaper published a full-page advertisement attacking the deployment of police against student civil rights demonstrators.²⁶ The plaintiff filing the suit, L.B. Sullivan, was not named in the advertisement, which solicited financial support for the student protesters and Dr. Martin Luther King Jr.²⁷ However, Sullivan, as a city commissioner in Montgomery, Alabama, oversaw the police department and argued that certain law enforcement actions described in the advertisement—specifically, locking Black college student protestors out of a college dining hall and arresting Dr. King—“would be . . . imput[ed] to the police, and hence to him . . . .”²⁸

Some of the advertisement’s assertions were not accurate. For example, the advertisement stated that the student protestors sang “My Country, ‘Tis of Thee,” when in fact they sang the national anthem.²⁹ Students were not locked out of the campus dining hall.³⁰ There were other misstatements, too. Sullivan demanded a public retraction as required by state law. When none was forthcoming, he filed the libel suit.³¹ The trial court judge instructed the jury that the statements in the advertisement were libelous per se, or in themselves, so the jurors had to resolve whether those statements were made “of and concerning” Sullivan.³² The jury concluded that they were³³ and imposed a penalty of $500,000,³⁴ a significant sum.³⁵ The Alabama Supreme Court affirmed the decision, agreeing with the lower court that the published statements fell within the class of “words . . . tend[ing] to injure a person libeled by them in his reputation, profession, trade or business, or charg[ing] him with an indictable offense, or tend[ing] to bring the individual into public contempt,” and that they were consequently “libelous per se.”³⁶ This mattered because the plaintiff did not have to prove damages if the published statements were libelous per se.³⁷ The court further found that although the plaintiff was not named in the published statement, he enjoyed a cause of action “if the words may by any reasonable application, import a charge against several individuals, under some general description or general name . . . and it is for the jury to decide, whether the charge has the personal application averred by the plaintiff.”³⁸ The court upheld the jury verdict against the Times.³⁹

In its brief to the federal Supreme Court, the Times attacked the analysis of the trial court and Alabama Supreme Court on multiple grounds.⁴⁰ But its broadside focused on the finding that the statements and misstatements in the advertisement were libelous per se.⁴¹ The Times argued that a standard that produced such absolute results—regardless of the intent of the publisher, the accuracy of the allegedly defamatory statements, or evidence of harm to the person allegedly defamed—was not consistent with the freedom of the press enshrined in the federal constitution.⁴² The Times further warned

The publisher has no defense unless, as respondent noted in his Brief in Opposition, he can persuade the jury that the publication is entirely true in all its factual, material particulars. Unless he can discharge this burden as to stated facts, he has no privilege of comment. Good motives or belief in truth, however reasonable, are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. A claim of truth which is regarded as unfounded affords evidence of malice, fortifying the presumption that applies in any case.
We submit that such a rule of liability works an abridgment of the freedom of the press, as that freedom has been defined by the decisions of this Court.^{⁴³Brief for the Petitioner, supra note 40, at 38–39 (citations omitted).}

Other courts, the Times asserted, protected the “freedom to criticize the conduct of officials by requiring that the aggrieved official prove the critic’s malice . . . .”⁴⁴

Justice Brennan, writing for a unanimous Court, agreed with the Times that the standard for liability applied by the Alabama Supreme Court ran afoul of the First Amendment. Citing a national commitment to public debate that is “uninhibited, robust, and wide-open, and that . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” as a foundational premise, Justice Brennan observed that the “advertisement . . . [was] an expression of grievance and protest on one of the major public issues of our time, [and] would seem clearly to qualify for the constitutional protection.”⁴⁵ That the advertisement contained erroneous statements was not enough to nullify that protection. Rather, the Court found, “[E]rroneous statement[s] [are] inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive . . . .’ ”⁴⁶

The Court went on to define the required balance, consistent with the demands of the First Amendment, between the interests of a target of public criticism in protecting personal and professional reputation and those of the press in publishing that criticism and facilitating public debate, in language that has since taken on totemic force:

[C]onstitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.⁴⁷

Rather than remanding the case to apply this new standard, the Court determined that the factual record in Sullivan did not convincingly demonstrate actual malice⁴⁸ and, consequently, the jury verdict against the Times could not stand.⁴⁹

In Sullivan, the justices committed the Court to several important principles. First, foremost, and most fundamentally, the Court held that the First Amendment imposed a constitutional constraint on libel: There are statements that may be injurious to someone’s reputation, yet the affected person may not be able to recover.⁵⁰ Second, the Court allocated the burden of proof, making clear that the plaintiff alleging an injury to reputation bore the burden of proof in a lawsuit alleging defamation.⁵¹ Third, the Court limited the scope of what defamatory statements were actionable, denying recovery to some plaintiffs even when the statement was false.⁵² Fourth, the Court set the actual malice standard applicable to libel claims by public officials.⁵³ In defining these principles, the Court delineated the field on which wars over future defamation claims would be waged and indirectly identified the arguments that could reshape that field.

Murder the Truth is not a history of libel doctrine and Enrich does not trace its development through subsequent cases. Nevertheless, a brief review of the Court’s treatment of questions that Sullivan did not resolve provides helpful context for the legal battles that Enrich examines. One such critical question was whether the actual malice standard applied to people who might be “public figures” but were not “public officials.” In Curtis Publishing Co. v. Butts, the Court weighed two separate libel claims, one by the athletic director of the University of Georgia⁵⁴ and one by a well-known opponent of racial desegregation who incited a crowd on the University of Mississippi campus in opposition to enrollment of a Black student.⁵⁵ Four justices⁵⁶ agreed that the two subjects of news coverage were properly recognized as “public figures” under tort law. The plurality provided the following rule applicable to their cases: “[A] ‘public figure’ who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”⁵⁷ Relevant under this rule, then, is the conduct of the newspaper or other public speaker: Just how carefully and thoroughly did the reporter investigate prior to publication? This inquiry incorporated objective questions about industry practices into the doctrine,⁵⁸ expanding the focus beyond culpable intent.

Because there was little dispute that the plaintiffs in Curtis were public figures, the Court turned in later cases to the determination of who fell within that category, concluding in Gertz v. Robert Welch, Inc., that public figures

have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.⁵⁹

This prominence, in turn, meant that public figures “usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy,” while “[p]rivate individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.”⁶⁰ Rather than setting a single standard applicable to libel claims by private individuals, though, the Court yielded to standards set by the states, provided that state law did not impose liability without a finding of fault.⁶¹

Enrich’s premise is that powerful people have engaged, and continue to engage, in an expensive battle to shift the balance set in New York Times v. Sullivan and subsequent cases by weakening or eliminating the requirement that a libel plaintiff establish actual malice (p. 7). Despite decades of attacks and criticism, the standard has endured. This review of history and the development of doctrine makes clear the ways in which the law could be nudged in favor of subjects of news coverage—narrowing the definition of “public figure” to limit who is subject to its requirements, for example—or used to impose costs on publications even when their defense arguments are ultimately successful because, unless state law provides otherwise,⁶² even successful defendants bear their own costs in libel suits.

Enrich is not writing a treatise or law review article. He does not explore these possible, more incremental changes to doctrine, but it is worthwhile to pause and ponder what they might mean: The Court could (1) adjust the definition of the applicable standard, like actual malice, in an action for defamation; (2) adjust that standard for different classes of plaintiffs;⁶³ or (3) redefine which statements are more or less deserving of First Amendment protection. While the Sullivan standard for public officials may survive, the Court could implement a distinct rule for public figures, for example, lightening the burden people in that category must carry to recover for libel.⁶⁴ Justices seeking to rein in the news media could narrow the class of matters of “public or general concern,” discussion of which the First Amendment protects more strongly.⁶⁵ Litigation over public statements related to matters not classified as public concerns would consequently have greater likelihood of success. Similarly, the Court could narrow the class of people who qualify as public figures.⁶⁶ That would mean that more plaintiffs would benefit from a potentially lower standard applicable to private individuals.⁶⁷ Again, the weight and significance of different factors that affect the constitutional analysis of defamation claims in light of the First Amendment could be adjusted to deter news publications significantly without revising the core Sullivan rule.

II. The Campaign to Limit the Press

The legal doctrine described above provides the context for the story that Enrich tells. This Part describes how Murder the Truth argues for the importance of the doctrinal protection afforded to reporters and other investigators, providing numerous examples of reporting that revealed questionable conduct. This Part also shows how the book describes efforts to constrain that reporting ex ante or punish it ex post, using litigation as a cudgel. This Part reviews some of the key examples Enrich uses to illustrate the offensive against news outlets, identify some of the key people driving it and the tactics they use, and suggest potential allies on the Supreme Court.

Within the first five pages of his story, Enrich takes the reader inside the deliberations of the Supreme Court (pp. 3–4). The justices were grappling with a threshold question: whether to grant a petition for certiorari by a libel plaintiff.⁶⁸ The justices ultimately decided not to take the case. It is the first of several moments in the book that highlight the Supreme Court’s inaction, which Enrich focuses on to emphasize not the durability of the Sullivan standard but its vulnerability, as an increasing number of justices—first one, then two⁶⁹—openly question its reasoning and consequences. Court observers, including Enrich’s colleague at the Times, Adam Liptak, do not appear to share his concern, viewing the wholesale constitutional overhaul of libel claims as unlikely.⁷⁰ But Enrich’s series of examples of threatened and actual lawsuits by powerful people against journalists and journalist-adjacent investigators—a distinction perhaps worth a bit more analysis—makes clear that Sullivan can be effectively undermined even if formal and doctrinal standards hold.⁷¹ Sarah Palin’s⁷² success in getting her libel claim against The New York Times before a jury—not once, but twice—provides an illustration of the role case-specific facts can play to support allegations sufficient to satisfy a court applying the Sullivan standard. Enrich explores this lawsuit, with which jurors did not ultimately sympathize, toward the end of the book.⁷³

It is difficult to overstate the importance of the Sullivan standard for reporters, Enrich notes, both because of the protection offered by the standard’s steep requirements and its uniformity across the country (pp. 20–21). Imagine for a moment how news coverage might change if reporters had to worry about the threat of a libel claim in every jurisdiction, or if the standards for such a claim varied from state to state. Enrich nicely summarizes the post-Sullivan legal landscape as seen by a reporter: “Journalists and publishers now knew that as long as they were making a good-faith effort to ascertain the truth, they were free to dig into the rich, famous, and powerful” (p. 21).

This was a very big deal. As Enrich puts it, “This realization—along with factors like the Freedom of Information Act, which made it much easier to obtain government records⁷⁴—helped usher in a new age of American journalism devoted to exposing malfeasance, questioning authority, and promoting the public interest” (p. 21). Reporters uncovered wrongdoing in Vietnam,⁷⁵ the White House,⁷⁶ and the Pentagon.⁷⁷ It was not a coincidence that The Washington Post cracked open Watergate in the years after Sullivan. “If the burden of proof in a defamation case had remained with the defendant, and if even honest mistakes remained punishable under the law,” Enrich observes, then “the risks of publishing such a series of investigations might have been prohibitive” (p. 21).

Needless to say, investigative journalists aiming to hold the powerful accountable were not the only ones who benefitted from the Supreme Court’s decision.⁷⁸ But investigative journalists are the heroes of Enrich’s book and it is easy to understand why. If not for the painstaking work of a small number of very determined people prepared to invest time and energy in answering a basic question—what happened?—spectacular instances of malfeasance by the rich and powerful would have gone undiscovered. The possible consequences of building a residential development atop “fourteen million tons of toxic dregs”⁷⁹ or confirmation of ties between onetime Trump adviser George Papadopoulos and a foreign government (p. 145) are just a few of the book’s examples of findings that might have gone undiscovered but for investigative journalists.

To varying degrees, Enrich examines more than a dozen cases involving lawsuits (and threatened lawsuits) against journalists. The frequency with which several key advocates appear in challenges to the news media is striking. These repeat players include Elizabeth “Libby” Locke and her partner in law and life, Thomas Clare, whose firm, Clare Locke, played a role in some of the highest-profile defamation cases of recent decades (pp. 82–84); Rodney Smolla, a First Amendment scholar who has been a professor of law, law school dean, and university president;⁸⁰ and Charles Harder, a “Hollywood lawyer” (p. 56) hired by the billionaire Peter Thiel to pursue ultimately lethal litigation against the hyperaggressive website Gawker,⁸¹ which outed Thiel as gay in the early 2000s and earned his undying enmity as a result.⁸²

Enrich does not begin with the demise of Gawker, but the case comes early in the book and matters because it represents such a complete victory for anyone critical of the news media. Although the case rested on invasion of privacy rather than a libel claim, the outcome looms over every defamation defendant like the threat of a nuclear bomb.⁸³ In 2012, Gawker posted a video of Hulk Hogan⁸⁴ having sex with his best friend’s wife (p. 58). Hogan’s lawyer demanded that Gawker take the video down; Gawker did not comply. Harder, Thiel’s lawyer, contacted Hogan’s lawyer and offered to “help on a lawsuit” (p. 59). Over the next three years, Harder and his litigation team waged a scorched-earth campaign against Gawker, seeking $100 million for invading Hogan’s privacy.⁸⁵ The case went to trial and resulted in a jury verdict of $115 million against Gawker, effectively destroying the site. Gawker filed for bankruptcy within months of the verdict.⁸⁶ Thiel celebrated with expensive wine and “lobsters that had been flown in from Japan” (p. 67)—a fun and juicy detail, like many others sprinkled throughout the book.

The destruction of Gawker was an unusual outcome; the news organizations employing most of the journalists featured in Murder the Truth survived, despite being threatened with litigation or actually sued. Nevertheless, the financial costs to reporters, editors, and publishers were often high, and so were the levels of stress and anxiety they experienced. And in a few cases, journalists indicated by word or act that, going forward, they might be more judicious in their selection of stories to investigate to reduce the risk of litigation.⁸⁷ Enrich notes news organizations’ different pressure points, including the impact of community resentment, the high cost of libel insurance, and the need to maintain advertising revenue at a time the industry continues to shrink.⁸⁸

For example, Enrich describes Conrad Swanson’s reporting in a series of articles in the Colorado Springs newspaper The Gazette about Gold Hill Mesa, a housing development built on top of a hill filled with toxic waste left by an ore refinery (pp. 110–11). Swanson reported that the houses’ “foundations and pipes were breaking, groundwater was invading their basements, and roads were oozing water even when it didn’t rain” (p. 114). Further, the developers had been aware of the issues for years, according to court documents Swanson uncovered. Within days, the developer’s in-house lawyer sent a letter to The Gazette, threatening litigation (p. 116).

The threats seemed to have an effect: While Swanson’s “previous articles had skated into the paper, and he’d exchanged hardly a word with Chris Reen, the publisher, who rarely got involved with the reporting or editing of articles[,]” subsequently “Swanson was called to Reen’s office, and phrases, sentences, and entire paragraphs were chopped at the publisher’s behest” (pp. 116–17). Some months later, Swanson left The Gazette to take a job at The Denver Post (p. 118). Coverage of the development grew softer; the threat of costly litigation, however accurate the reporting that prompted it, appeared to have had the effect desired by the developers. This outcome is telling: No lawsuit was filed, and so the Sullivan standard made no apparent difference here. It is hard to assess whether a more plaintiff-favorable libel standard would have created a stronger disincentive for The Gazette’s reporting on Gold Hill Mesa. After all, the protection offered by Sullivan did not deter the developers and their lawyers from threatening the newspaper; they knew they did not need to win in court to achieve their objective of shutting down Swanson’s reporting (p. 118). The news organizations would have had to bear its litigation costs even if its defense succeeded.⁸⁹

Litigation similarly followed publication of War Dogs, a book that chronicled a “bizarre story of childhood friends who had become arms dealers in their twenties” (p. 174). In passing, the book referred to a man named Shkëlzen Berisha as “part of what was known in Albania as ‘the family,’ the tight-knit and extremely dangerous group that surrounded and lived at the beneficence of the prime minister” (p. 175). The author of the book, Guy Lawson, had drawn on publicly available information and reporting by others in crafting the characterization of Berisha. But Berisha filed a defamation suit against Lawson and his publisher in federal court in Miami.⁹⁰ The trial court judge granted the defendants’ motion for summary judgment, finding that Berisha was a public figure⁹¹—step one—so the “actual malice” standard applied.⁹² Then the court found that Berisha had not established that Lawson believed that what he wrote might be false, meaning that—step two—the claim did not clear that standard.⁹³ Two years later, the Eleventh Circuit agreed with the district court judge,⁹⁴ and a year after that, the Supreme Court denied certiorari.⁹⁵ The outcome might suggest that, again, Enrich’s concern for Sullivan is premature: The justices could have taken advantage of this case to revise the actual malice standard but declined to do so. Their reticence signals a reluctance to revisit the standards set in Sullivan, at least for now, and so suggests that Enrich may overstate the risk of a radical change in doctrine.

But this time, two justices dissented from the denial of certiorari: Justice Thomas and Justice Gorsuch.⁹⁶ This suggests that complacency over the status of Sullivan is perhaps unjustified, Enrich writes (pp. 266–67). Justice Thomas recycled an argument that the history of the First Amendment provides no justification of the actual malice standard and then wrote,

Our reconsideration is all the more needed because of the doctrine’s real-world effects. Public figure or private, lies impose real harm. Take, for instance, the shooting at a pizza shop rumored to be “the home of a Satanic child sex abuse ring involving top Democrats such as Hillary Clinton[.]” Or consider how online posts falsely labeling someone as “a thief, a fraudster, and a pedophile” can spark the need to set up a home-security system. Or think of those who have had job opportunities withdrawn over false accusations of racism or anti-Semitism.⁹⁷

The examples that Thomas used all feature harmful falsehoods that were not the result of journalistic investigation but rather social media rumormongering, as Enrich notes (pp. 187–88). As a result, statutory protections of social media sites are what matter,⁹⁸ not the First Amendment or the Sullivan standard. Justice Thomas’s dissent ignored that distinction.

Justice Gorsuch took a different approach, relying heavily on a flawed quantitative analysis of libel litigation in a law review article⁹⁹ (which Enrich eviscerates, p. 191) to conclude that

publishing without investigation, fact-checking, or editing has become the optimal legal strategy. Under the actual malice regime as it has evolved, “ignorance is bliss.” Combine this legal incentive with the business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards—and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth. What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.¹⁰⁰

This melodramatic language is fearsomely clear, but the connection to the facts of the case against Lawson is less so. Enrich notes that these two dissents, touted by critics of the news media, are a warning of the possibility that the Court might revisit Sullivan to the disadvantage of journalists (p. 267). It is far from clear how many more justices are ready to abandon a precedent that has stood for sixty years.¹⁰¹

If there are enough, though, they are more likely to choose to weaken Sullivan in a case brought by a more sympathetic plaintiff than Berisha—someone who is not obviously powerful. Enrich includes a few examples of possibilities. One involved a lawsuit brought by Kathrine Mae McKee, who in a 2014 Daily News article accused Bill Cosby of raping her four decades earlier.¹⁰² Cosby hired Marty Singer, a Los Angeles lawyer who, Enrich reports, was Harder’s mentor (p. 123). Singer sent a letter to the Daily News, calling the article “defamatory” and McKee herself a liar (p. 123). Other news outlets repeated the allegations in that letter, prompting McKee to eventually sue Cosby for defaming her.¹⁰³ Cosby moved to dismiss and succeeded both in U.S. District Court for the District of Massachusetts¹⁰⁴ and before a First Circuit Court of Appeals panel.¹⁰⁵ The Supreme Court denied certiorari.¹⁰⁶ McKee’s loss was a result of the critical conclusion that she was a public figure because she spoke to the news media about her allegations.¹⁰⁷ So the actual malice standard applied,¹⁰⁸ and both the trial court and the appellate panel found her factual allegations insufficient to overcome that standard.¹⁰⁹

Justice Thomas—in a solo concurrence in the denial of certiorari—argued for reconsideration of the actual malice standard.¹¹⁰ The pattern is familiar, but McKee, the plaintiff, is more sympathetic. It seems likely that if the Court eventually weakens Sullivan, it will be in a case like this one, involving a target of the media who is not an aggrieved billionaire or powerful business, but a woman who has some degree of celebrity status but lacks the ability to protect herself from attacks by either the news media or those using the news media. Enrich does not grapple with the thorny question of accountability for the press as a powerful institution that is itself susceptible to manipulation or abuse. Powerful targets of the media may deploy their wealth to rein in journalists and evade accountability, but the vulnerable targets may not.

McKee’s claim helps illustrate a deeper concern that might justify revisiting the scope of the actual malice standard: reputation. That is, McKee was not a victim of an investigative reporter attempting to hold her accountable for wrongdoing but the target of a cruel campaign impugning her credibility. Under such circumstances, perhaps the law should ease the pathway to recovery; reputations matter and take time to build. But crafting a doctrinal mechanism to distinguish cases like McKee’s presents tremendous difficulty. Striking a balance between one individual’s interest in avoiding reputational harm and another’s interest in speech is inevitably challenging.

Notwithstanding the title of the book, which refers to a “secret campaign to protect the powerful,” most of the efforts to silence or punish journalists that Enrich has collected were not undertaken in secret. While some targets of reporting attempted to head off publicity, they disclosed those desires to the media outlet they wished to quiet. This could backfire; the journalist David Marchant, who posted official documents on his OffshoreAlert website, simply posted the correspondence from Clare Locke demanding that he take down documents related to a client of the firm (pp. 94–95). He wrote back to the firm, inviting the lawyers to “[f]eel free to follow through on your threat to sue,” adding, “I look forward to not only defeating your client but also reporting about the case to our worldwide readership” (p. 95). Marchant posted everything online and, Enrich reports, “never heard back from” anyone at Clare Locke (p. 95).

The exception is Thiel’s role in funding the war on Gawker, undisclosed until the postverdict Times story by Andrew Ross Sorkin and public long before publication of Murder the Truth.¹¹¹ But the effort to crush Gawker was the subject of an entire book¹¹² and even Fox News had to acknowledge the wall-to-wall news coverage of the Dominion defamation lawsuit.¹¹³ Further, some of the fiercest advocates of overturning Sullivan have made their views emphatically public (pp. 96, 170–71). Enrich does not overclaim and notes these facts in the book.

An important implication that he does not explore, though, is the importance of publicity: The deterrent effect that powerful people want to produce requires publicity, because reporters, editors, and publishers will only be discouraged from covering particular people and topics if they know of the risk of costly litigation and potential loss in court. It is an ironic corollary to the desire for secrecy that effective deterrence requires that punishment be very public. Enrich’s description of various lawsuits against reporters and their employers makes clear time and again that the prospect of litigation affects newsgathering, not least because every once in a while, a devastating jury verdict can succeed. A question that lingers, though, is how likely it is that the Supreme Court will revise doctrine to make such destructive outcomes more likely.

III. The Limits of Prediction and the Realities of Reporting

Rather than a story of evolving doctrine, Enrich provides a deeply disturbing account of the ways that power can punish and, over time, curtail efforts at accountability, discouraging solo investigators (pp. 144–54) and local reporters (pp. 110–18) from uncovering buried truths. His sampling of legal attacks on journalists makes plain the stakes of the battle over libel standards. But he does not address in detail the likelihood of changes in doctrine or the potential impact of those changes in the media industry. That makes the question of what “freedom . . . of the press”¹¹⁴ should mean more difficult to answer. The news media ecosystem now includes various actors independent of traditional newsgathering entities like The New York Times and The Washington Post, or even CNN and Fox News. This Part identifies some of the thorny questions that arise in this environment that drafters of the First Amendment could not have foreseen, which complicate any effort to predict what the courts will do in the future.

Regardless of the formal protections erected by the Court in Sullivan, libel litigation imposes both direct costs on newsgathering and indirect costs in the form of high insurance costs and general gun-shyness when it comes to explosive or controversial news stories. The present news landscape has continued to contract and is marked already by less investigative journalism overall. Less aggressive investigative journalism, in that context, should concern anyone who believes that a successful democracy requires an active and effective press. Enrich is right to worry, and his examples illustrate why.

Sullivan “is under more sustained attack now than at any time since it was decided sixty years ago,” as Thomas Healy wrote in these pages in a 2024 review of a book about the case itself.¹¹⁵ Certainly the justices in the conservative majority of the current Court have shown themselves willing to jettison longstanding precedents when they deem the issue important enough.¹¹⁶ On the other hand, undoing Sullivan could have consequences not desired by those justices; potential libel may spew forth from all along the ideological spectrum, after all. Among observers of the Court, the consensus view seems to be that the precedent will stand, at least for now.¹¹⁷

All that said, Enrich does not grapple with some of the most difficult questions that arise in an increasingly dynamic media environment characterized by “cancel culture,”¹¹⁸ the short takes encapsulated in memes,¹¹⁹ and more “influencers” than reporters.¹²⁰ He is more concerned with the ever-contracting community of investigative journalists working to shine light in dark corners. But the protection afforded by Sullivan’s shield extends a bit further, and that raises difficult issues. Should a blogger venting online in response to current events enjoy the same protections as an investigative reporter who spends months gathering facts? Put differently, who is a journalist, and should the label matter? What protection should outright misinformation enjoy? Do the classic theories justifying freedom of the press hold up in the contemporary media landscape? Perhaps because Enrich is interested in protecting key principles underlying the status quo, he does not consider these concerns, which is not a slight to the book but an observation that it fits into a larger, perhaps more difficult conversation.

Trends in the news industry suggest that answering questions about who is entitled to what level of protection for their public statements has tremendous implications for the profession as a whole. Small, local news outlets that aim to plug the gap left by failing, traditional newspapers¹²¹ may be more vulnerable to the risk of litigation than their ancestors were, because they are more precarious both financially and reputationally. At the same time, a small news organization or even a single online “influencer” can have a devastating impact as technology makes a virtually infinite audience accessible instantly and inexpensively. This means that even the most powerful subject of online commentary may be vulnerable, and these dynamics could justify weakening protections for reporters.

The sheer quantity of material available online boggles the mind, and included seamlessly in that online mix is a mass of misinformation that some news organizations may parrot with little to no verification.¹²² Such conduct calls to mind the standard endorsed by a plurality of the Court in Curtis Publishing Co., the case in which the justices allowed recovery for libel “on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”¹²³ A standard like this resembles a licensing model, conditioning availability of a libel standard more protective of news organizations on adherence to, or perhaps a pledge to adhere to, specified standards. This could, in turn, have the effect of screening access to the web, limiting a signature feature of the online universe.

These trends—the wider variety of sources of journalistic content and the greater quantity of material available online—occur in the context of both a statutory framework that provides extreme liability protection for online platforms¹²⁴ and a corporate landscape littered with uncertain and failed business models.¹²⁵ Policy analysis of the implications of doctrine governing libel and violation of privacy claims should take into account these other characteristics of the media environment because changes beyond doctrine could lead to profound shifts in newsgathering. Platform liability, for example, would incentivize screening of content by private parties that would have every reason to permit only the safest, nondefamatory material to pass. That does not sound like the robust arena of battling ideas contemplated by First Amendment doctrine in the past. It would certainly have implications for news organizations, potentially bolstering their chances at revenue generation.

These considerations matter. By declining to address those concerns, Enrich is able to suggest that Sullivan sets a clear standard that can be consistently and fairly applied in diverse circumstances. This is somewhat troubling, because if there is one lesson to be learned from the individual cases that Enrich describes in the book, it is that details and facts matter. Sometimes our sympathies lie with the newsgatherer, but not always: Again, the story of Kathrine Mae McKee,¹²⁶ who found her credibility questioned in the media, fits uneasily in Enrich’s mix of cases. In her defamation case, she was not a powerful subject of an exposé but the target of a smear campaign.¹²⁷ It is also difficult to discern a resolution from the Supreme Court’s 1964 Sullivan decision as to the hard questions about the role of technology in spreading news, true and false, today. And as some news organizations preemptively shift their stances in response to the perceived preferences of the White House,¹²⁸ it seems highly relevant to consider the threat to a free press presented by the executive branch of the government, in addition to the judicial branch. No doctrine need change for attacks by the federal government to affect the news media, and Sullivan may not be the most relevant precedent when the executive tries to do so.¹²⁹

Perhaps more telling than any of the thoughtful analysis in the book (or anything in this Review) on that question is one of Enrich’s footnotes. In recounting the reporting of the Colorado Springs Gazette summarized above,¹³⁰ Enrich describes an editor who “resented what struck him as an attempt at intimidation” by a lawyer representing the Gold Hill Mesa housing developers who were the subject of the investigative reporting (p. 114). In the footnote, Enrich adds that a spokeswoman for the developer “denied that the goal was to intimidate” (p. 114). Enrich evidently finds the spokeswoman’s version of events implausible; that may be why her statement is below the line and the Gazette editor’s version is above. It is an example of a preemptive antilibel device: The thorough descriptions make plain the degree of care Enrich took in this reporting and signal to any potential plaintiff that any claim that the statements were made recklessly or with actual malice is doomed to failure. Enrich’s inclusion of both versions of events provides evidence of his care and thoroughness, giving an indication of how diligent a reporter may have to be to deter someone powerful from seeking revenge in the courts.

Not every reporter out there has the resources and time to pursue sensitive subjects and powerful people with the determination with which Enrich pursued this book. The depressing reality that Murder the Truth conveys all too clearly is that the threat of costly litigation is only one burden the modern news organization must bear. The industry has been steadily contracting for decades¹³¹ and as old media monoliths decline,¹³² more small organizations with fewer resources are now pursuing reporting.¹³³ How many of these small players can afford the risk of a controversial story? Between this modern, technology-driven shift in the news media landscape, on the one hand, and the threat of expensive litigation on the other, news organizations navigate a precarious path. The Times, where Enrich works, is a last battleship and increasingly looks sui generis,¹³⁴ as other organizations retrench,¹³⁵ reorganize,¹³⁶ or just shrink.¹³⁷

Enrich did not set out to write (and does not claim to have written) a definitive history of attacks on the news media throughout time, or Sullivan, or its legacy. Rather, he has deftly gathered into a single volume insightful descriptions and analyses of recent skirmishes that have pitted the rich and powerful against reporters, editors, and the news organizations that they work for. Perhaps a more powerful and fair criticism is that the book does not so much expose a secret campaign as recognize and call out concerted efforts by the powerful to defeat the news media. Enrich’s account demonstrates that those efforts, by their nature, took place in the public eye but perhaps, in their cumulative effect, remained beneath public notice.

Conclusion

The warning sounded by David Enrich in Murder the Truth is both urgent and real. The descriptions are detailed, well-footnoted, and clear, as are the implications of the events he describes. As Enrich illustrates through example after example, the efforts of intrepid newsgatherers seeking to hold the powerful accountable draw costly litigation, which inevitably has a chilling effect on future journalistic efforts. The hollowing out of the traditional news media means that many of the remaining institutions of the press do not have the financial resources to take the risk of legal battles lightly. Though some of the wealthy and powerful may want to move the law (and may have persuaded a pair of Supreme Court justices of the need to do so), undermining reporting does not require such a formalistic adjustment. The true service performed by Enrich here is less an explanation of the risk of doctrinal change and more the demonstration that in this context, what the law is may not matter nearly as much as what invoking it costs—and who can bear to pay that price.

* Professor of Law, University of California, Berkeley, School of Law. The author is grateful to Amy Gajda and Adam Liptak for providing comments on this review; to Abby Etta Smith, who provided excellent research assistance; and to the editors of the Michigan Law Review.