[music]

Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good Friday morning, everyone. You know, if real people's lives weren't being affected, this moment in the Trump transition would be a pretty hilarious comedy of palace intrigue. To my eye, the main thing President Elect Trump has been doing since the election is trying to demonstrate how much he can throw his weight around. It's not about policy yet. It's how much can I show that I'm the boss of you? With other countries, with the media, which this segment will mostly be about, with the stock market and with other branches of government. Frankly, he's won some and he's lost some.

He does seem to have Ukraine cowering and ready to give up some of its country to Russia. He's threatening Hamas that there will be "all hell to pay" if they don't free the remaining October 7th hostages by his inauguration on January 20th. We'll see if that threat makes a difference to anything in the region. His invitation to Xi Jinping. Did you hear about this? To attend his inauguration seems, on one level at least, like a warning to democracy advocates everywhere. Like we strongman types might link arms and sing each other's praises if it helps both of us increase our power over you. Dissidents and human rights advocates, you are on notice.

Trump actually called Xi an amazing guy the other day. The power play scorecard reveals that Xi Jinping hasn't accepted the invitation so far, kind of changing the narrative of who's in charge as Trump is relegated to just waiting for an answer from him. Trump asked Senate Republicans to give up their power to confirm or reject Trump Cabinet nominees. You probably know about that. We've certainly talked about it here. So far at least, the Senate Republicans have refused to give up their constitutional privilege to confirm or reject nominees.

Then there's the budget soap opera playing out today in Washington. This is where if people's Christmas week paychecks, people's prescription drug bills and other things that really matter weren't actually in play, it would really be a comedy of palace intrigue. Two days ago some of this after House leaders reached a bipartisan three month budget agreement, Trump thought he could force it to change to his will at the last minute by posting after the agreement his disapproval on social media, along with Elon Musk's 100 posts on X. That did kill the bipartisan deal, but it has not succeeded in getting a new bill on Trump's terms.

That story is only emerging now. The partial government shutdown deadline of midnight tonight is approaching fast. Why are we in this limbo? Because Trump, as it turns out, is actually not the most powerful force in the Republican House caucus. He was able to threaten a lot of Republicans with being primaried from the right. He and Musk both posted that explicitly. Those already the most on the right in the House, the Freedom Caucus members, didn't like Trump's budget either with its increase in the debt ceiling, and they defeated it last night.

Who's in charge here? The answer is TBD between Trump and Xi Jinping, between Trump and Hamas by January 20, between Trump and House Republicans by the end of today. Oh, by the way, something to keep an eye on, between Trump and Elon Musk. Was Musk's tweet storm about the budget something Trump put him up to as a powerful surrogate? Or did Musk, as the richest man in the world with his own gazillion followers, force Trump's hand? Musk tweeted first. The power dynamic there, if they begin to disagree, is total palace intrigue and also TBD, and also potentially with other real world effects on regular folks.

Musk, of course, as the owner of X with the power to shape his narrative there is largely a media figure in the current context. That brings us to Trump and the press. Is this what democracy looks like? The President Elect of the United States is suing multiple media organizations who he alleges were plotting against him in one way or another during the campaign or otherwise unfair to him. He just got ABC and George Stephanopoulos, as you've no doubt heard, to settle out of court for $15 million over Stephanopoulos's use of the word rape, which a judge had used to describe Trump's sexual abuse jury finding, but it was officially for sexual abuse. Those words, not the word rape.

He's suing Bob Woodward for releasing interview tapes of the two of them. He's suing 60 Minutes over one specific edit in a Kamala Harris interview before the election. We'll play that clip. He's suing the Des Moines Register and their pollster Ann Selzer for getting their last few election polls wrong before election day. Here's Trump this week alleging what Ann Selzer did after early polls showed him with a big Iowa lead.

Donald Trump: She brought it from way up, walk away, which it was. It turned out to be in the election too, by the way. It was a win by many, many points. Then she brought it down very smartly to four a couple of weeks before. Everyone said, "Wow, that's amazing. He's only up by four points." Then she brought it down to where I was down by three or four, whatever number she used. That was the Des Moines Register and it was their parent. In my opinion, it was fraud and it was election interference. She's gotten me right always. She's a very good pollster. She knows what she was doing. She then quit before. We'll probably be filing a major lawsuit against him today or tomorrow.

Brian Lehrer: Trump at a news conference on Monday. They did file that lawsuit. Let's talk about these lawsuits against the press from a letter of the law legal standpoint and as a power play that could affect journalism and democracy beyond what may happen in any court of law. Joining us now is Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University. Among many other things, according to her bio page, Katie Fallow is one of the lead lawyers in the institute's groundbreaking case challenging Trump's blocking of people from his real Donald Trump Twitter account during his first term in office. Katie, thanks for coming on with us. Welcome to WNYC.

Katie Fallow: Hi, Brian, thanks for having me.

Brian Lehrer: We'll get into the specific cases and play the 60 minutes at it. First, in the big scheme of things, is this unprecedented? Is there any parallel in history for a politician, never mind a president of the United States, suing multiple news organizations or making a show of it like this?

Katie Fallow: Yes, it is completely unprecedented. I'm not a presidential historian, but I certainly can't think of any comparison in history of a president using a multitude of lawsuits to go after his critics. I mean, of course, presidents in history have found ways or tried to find ways to shut down criticism. This is using the courts as a way to chill critical coverage of the president and Trump by journalists and authors and individuals. I think it's really troubling from a First Amendment and free speech standpoint.

Brian Lehrer: Is it even really his critics? Maybe you could say that about Bob Woodward. That's certainly not what the Des Moines Register would say they were. That's certainly not what ABC or CBS would say they were. The Constitution, as you point out, includes the First Amendment, which says Congress shall make no law abridging the freedom of the press. Trump is not trying to get Congress to pass a law here. I think that's important to acknowledge or charge news organizations criminally. He's using the tort system, right, the civil court system to sue for damages that he alleges. Speaking constitutionally, that's within his rights if he can show he's been treated unfairly. Right?

Katie Fallow: Absolutely. I think this really goes to a landmark decision by the Supreme Court, New York Times versus Sullivan, where the court recognized that something like a defamation lawsuit, it's not direct government censorship or regulation or seeking to put critics in jail, but recognize that the impact of civil litigation through not just damage award, because, of course, if Trump, like any individual, can successfully prove defamation, then a damage award might be justified. Even with frivolous lawsuits or meritless lawsuits, the cost of defending against them can be quite chilling of free speech and particularly for smaller news outlets or individuals, debilitating from a financial standpoint. The Supreme Court--

Brian Lehrer: Plus the reputational damage, because even if you're in the right, the news organization that's being sued, a lot of people will latch onto the arguments of the other side and your reputation will be dinged with a certain percentage of the population.

Katie Fallow: Exactly. I mean, I think you can see that with the settlement against ABC News. Certainly, you see Trump and his lawyers and allies saying ABC News caved. Trump, I believe, wrote a letter to the judge in his case against Bob Woodward referencing that settlement and suggesting, "Oh, you can see that people are caving or they're admitting that they're wrong." Just going back to what you said a couple minutes ago, that it's not just critics, but it's almost like Trump appears to think that he should use or can use lawsuits whenever he thinks any media coverage is "unfair" or is not to his advantage.

Brian Lehrer: In case any of this does wind up at the Supreme Court in any way eventually, would you remind people what that landmark case that you just referred to a minute ago is? New York Times versus Sullivan. For those of us who didn't learn it in journalism school like I did, or in law school like you did, what was New York Times versus Sullivan?

Katie Fallow: Yes. That case rose out of the civil rights movement, and a group of civil rights activists took out a political ad in the New York Times criticizing law enforcement in Montgomery, Alabama, and for the ways that they were trying to suppress protest and free speech of the civil rights movement. They sued the New York Times in Alabama, and they were succeeding in state court because the way that defamation law works is that each state has its own defamation law. Defamation is generally defined as saying a false statement about someone that defames them or demeans them some way and hurts their reputation.

The case eventually made its way to the Supreme Court. What the court held was that even if each individual state has its own standards for proving defamation under its tort law, the First Amendment protection of free speech provides an extra layer of protection, particularly when the speech at issue, the allegedly defamatory speech at issue, is a matter of public concern and is about either a public official and has later been extended to public figures, so not just government officials.

What it says is that we want to provide breathing room for free speech, which we want to be uninhibited, wide open and robust, and that the core principle of free speech in the United States is the ability to criticize the government. Even if you are making false statements, for example, about a government official, the court said, you want to provide this layer of protection or a bubble around that, so that the First Amendment will sometimes protect false statements as long as they're not made with what the court called actual malice.

That's a term that can be confusing, because malice, when people use it, normally means ill will. In the context of this case, what it means is you have to show that the person, for example, the journalist, when they made a statement, that the statement was a false statement of fact, and that when the journalist made the statement, they knew it was false at the time.

Brian Lehrer: Some texts coming in. One on Trump's side says, "It's unprecedented how the media has attacked and lied about one president. It's been proven there's biased coverage against him." We'll talk about what proven means or whether that's a matter of perception. Listener texts. You may have just answered this one. "I know there's not really an answer to this," writes the person, "but defamation requires false statements that would tend to damage someone's reputation." Is that distinction worth dwelling on for a moment? True statements versus false statements in a defamation suit?

Katie Fallow: Yes, absolutely. Truth is an absolute defense to a defamation lawsuit. If you say someone-- something that is actually objectively verifiable, someone broke the law in a certain way, and you prove that they did break the law in that way, then that person, as a plaintiff, can't succeed. That is a very important protection. That if you are sued for defamation and you have to show, or the plaintiff has to show that it was false. It also relates to, sometimes you see a bunch of these defamation claims where the plaintiff, including Trump, but also other people, are really suing about a statement of opinion. "I think that guy's an idiot" is a statement of opinion and should not be the subject of a defamation lawsuit.

Brian Lehrer: Another listener writes, "So sitting president can't be tried because it would take him away from doing the people's work, but he's allowed to sue and sue with one vexatious lawsuit after another. Then it calls Trump like a terrorist, using our assets, our courts and our freedoms against it. I think all our listeners probably know about the immunity ruling from the Supreme Court by now having to do with acts, official acts by a president in office that's in the criminal realm. Can a sitting president be sued? Is the listener who texted right about that that he can't?

Katie Fallow: Someone has to do with whether or not it's his official acts. That came up with Bill Clinton and Paula Jones. The court held that he could be sued when it wasn't based on his official acts as president. The courts have recognized some protections against suits against the president while he or she at some point is in office just in recognition of the duties they have to undertake. There's somewhat of a difference between if a president is acting as a plaintiff and chooses to pursue a lawsuit, then I think those questions about interfering with his official role don't really have the same impact.

Brian Lehrer: Listeners, I've been reading some texts that have come in already. We'll put out the phone number here for those of you who don't have it. Any questions or comments in a phone call or a text about any of Trump's lawsuits against the press. Do these all look the same to you, or do different ones look different on the merits? We will get into some of the individual cases and what might be the arguments on either side, or maybe you have something on the subtext beyond the courtroom or any questions you have for Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University. 212-433-WNYC, call or text. 212-433-9692.

Maybe a little Trump career context is relevant here. This looks to be consistent with Trump's history in business before he was in politics. Maybe this is something you see elsewhere as a litigator that Trump or anyone else with power and money can bring lots of lawsuits just to intimidate people into behaving a certain way toward them, even if the suits may be fairly frivolous.

Katie Fallow: Yes, absolutely. I think Trump is well known to have a history of being litigious. I saw a report somewhere that said over the past 30 years, he'd filed 4,000 lawsuits. Not all of those are defamation lawsuits, of course, but in the early 2000s, he sued a book author who said that he was worth less than Trump had claimed. I think that suit was filed in 2005, and it was eventually dismissed as lacking merit in 2011. Again, the issue is that even if the lawsuit is frivolous, it takes money to defend against them in court. Particularly if you're an individual or you're not a major media company with a good insurance policy, lawyers' fees are quite expensive. You could see people backing down from saying something if they think they're going to be sued.

Brian Lehrer: Right. Here's an interesting question from a listener in a text. "Could a private Citizen of the US sue Donald Trump for lying about the 2020 election, as it was an attempt to steal the power of that person's vote?" We know that Jack Smith, the erstwhile special counsel, has dropped the criminal case involving that because of presidential immunity, I guess, or just the fact that Trump's going to be in office again. What about a civil suit? I mean, there certainly was that one against Rudy Giuliani for his lies about those two election workers in Georgia. Of course, they won very big damage awards in civil court. Could somebody sue Trump for lying about the 2020 election?

Katie Fallow: I think that would be hard to make out a lawsuit for several reasons, and some of them are good reasons that go to good free speech principles. First of all, to sue on defamation, you'd have to show that a false statement was made about you. If you're an individual, you couldn't just sue Donald Trump or anyone just for making what you believe to be false statements about the election.

Brian Lehrer: The listener didn't write defamation. They wrote for trying to steal the power of my vote.

Katie Fallow: That is a creative theory, and my guess is it would fail. Again, there are some important reasons. First of all, on the Giuliani example, I mean, that was where Giuliani made statements about specific election workers. They were able to sue him. In terms of making a false statement about the election, the Supreme Court has also held that the First Amendment protects even false statements of fact outside of the defamation context. For instance, in this case involving the stolen valor federal statute, where someone had claimed to have had certain medals of honor and he didn't.

The court said-- the case is called United States versus Alvarez, that because we want free speech to be so open, and we want to allow people to engage in speech, even that's sometimes false or very offensive or upsetting to many people because you don't want the government determining what speech should be allowed and should not be allowed. Now, there are certain laws that could be upheld, for instance, if you made a specifically false statement about saying that the election is not on the day that it is actually on because you would say the government interest there in regulating speech is justified as a way to protect election integrity. All of this is to say that I think that would be a tough lawsuit to come out with in particular, because I'm not sure what the cause of action would be, meaning what the claim would be.

Brian Lehrer: Listeners, we've set the scene in general here as our guest sees it. Katie Fallow, litigator with the First Amendment Institute at Columbia University. We'll take a break and then get into some of the specific cases, including clips from 60 Minutes and Face the Nation that Trump is suing CBS over and more. Stay with us.

[music]

Brian Lehrer: Brian Lehrer on WNYC. We're talking about President Elect Trump's spate of lawsuits against news organizations with Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University. Katie, the ABC News George Stephanopoulos case that settled for $15 million and a public apology. Many other people in the media are criticizing ABC for caving, as they see it. Stephanopoulos did say rape when Trump was found liable for sexual abuse, different term of E. Jean Carroll. Was that a reasonable thing for Trump to feel defamed over?

Katie Fallow: Yes. I think that the Trump's case against ABC News was much stronger than his claims in these other cases that we've mentioned, that we may be discussing, in that he could point to there was a jury verdict in the E. Jean Carroll case finding that Trump was not liable for rape as that term is defined under New York law. He would have been able to point to that and say, "Well, then it's a false statement of fact to say that I was found liable for rape."

ABC still had some strong defenses, including the fact that the judge in the E. Jean Carroll case, in upholding the damage award against Trump for sexual abuse, rejected Trump's arguments that it was excessive because he had not been found liable for rape. As the judge noted in that case, New York law defines rape more narrowly than it is defined in other jurisdictions, and that, in fact, for instance, under federal law, or maybe even in common parlance, the term rape would encompass the conduct that Trump was found to have engaged in, which was forcible penetration by his fingers.

I think ABC would have been able to say that was true or substantially true when George Stephanopoulos said that he had been found liable for rape. Then also ABC would be able to defend under the actual malice standard and say there's a debate about what the term rape means. Even accepting that it means what Trump is saying, it means that Stephanopoulos did not have actual knowledge that it was false at the time that he said it.

Now, I think there's been coverage in the news about why did ABC settle at the time that it did, which was on the eve of when the judge in the case had ordered ABC to produce a lot of documents. There's speculation that maybe some of those documents would have provided evidence that Stephanopoulos did know that it was false. We don't know that for sure. I do think there are some facts in that case that makes it different in kind from some of these other cases. I think what a lot of people are worried about was that ABC did not try to defend itself or to avail itself more aggressively of these defenses that it has when a public official like Trump or public figure like Trump sues for defamation, and that it could send a signal that media defendants will essentially capitulate if they're sued by Trump.

Brian Lehrer: On the ABC case, listener asks, "In the ABC settlement, ABC did not admit making a wrong statement. They just apologized. Does that make any difference?" Asks this listener.

Katie Fallow: I think some of that is just how the parties have negotiated a settlement statement. That's what people do when they're negotiating. Maybe often you'll see a settlement statement where the defendant says we don't admit any wrongdoing. I think the fact that they apologized and that they made a significant payment, donated to his library and foundation, that sounds a pretty strong signal. It's in contrast to a lot of other defamation lawsuits where media defendants and famously, the New York Times has said it would never settle a defamation lawsuit. There has been this history in particular of major newspapers really fighting tooth and nail to protect the ability to report on public figures. I think their concern is that this might show less of an enthusiasm for that kind of fight.

Brian Lehrer: On the question of whether rape was too strong a word to use in the context of being as accurate as possible about the jury finding on Trump and E. Jean Carroll, listener writes, "Wait, Trump exaggerates and uses a stronger word all the time," which is true, demonstrably true, but could it be used as a defense in court if he was the plaintiff?

Katie Fallow: Yes, maybe. Certainly, if for some reason he has made statements where he interpreted rape more broadly. It would really have to go to the specific facts. There's no question that Trump has exaggerated many things. In the specifics of this case, I think that the biggest support that ABC would have had would be to cite to Judge Kaplan's opinion about what the term rape means in his decision. It is true that if that conduct had been the subject of a lawsuit under a federal definition of rape or other jurisdictions definition of rape, then it might have constituted, but in this specific case, the jury specifically found not liable for rape under New York law.

Brian Lehrer: Another listener writes, "Could Kamala Harris sue Trump for defaming her during the campaign, calling her a lunatic--" used that word, "comrade, as if she's a communist and so many other false, nasty, abusive statements?"

Katie Fallow: I'm not seeking to become Trump's-- or whatever, defense attorney. With those specific examples, I would say those are statements of opinion. I think in general, it's bad, this trend of having political figures or politicians, not just Trump, but others and just powerful rich individuals using defamation as a cudgel against public discourse and public criticism. There was a whole spate of lawsuits during Trump's first administration brought by Devin Nunes, who is a former congressman and now works for Truth Social, where he was suing a number of news outlets and individuals and alleging that because they said negative things about him, he won his election by fewer votes than he had in the previous election.

That's the kind of speech that should just be part of protected public discourse and core political speech, not the subject of a lawsuit. In that case in particular, he sued two individuals who had anonymous Twitter handles. One of them was called Devin Nunes' Cow. It was clearly a satirical account. He's suing an individual and tying them up in court. That's very problematic.

Brian Lehrer: One more on ABC, listener writes, "Does it change the analysis if Stephanopoulos was warned by producers to not say rape, as has been reported." I have seen that reported. I don't know if it's been confirmed, but that narrative is at least out there as something that may have happened.

Katie Fallow: Yes, I definitely think that would change-- It wouldn't change the analysis, but that would be further evidence on the Trump side. You can look at the case against Fox News, for example, brought by the maker of election software, Dominion. I think most people think that the reason why Fox News settled that for nearly, I think it's nearly $800 million was because in discovery, they found a lot of texts and emails suggesting that the Fox News hosts didn't believe what they were saying when they said it. That would go to actual knowledge of falsity. If there was evidence that someone said very directly to Stephanopoulos, you shouldn't say that that's inaccurate, then that would be strong evidence on Trump's side.

Brian Lehrer: Now to the CBS case. Trump's claim is that they edited an interview with Kamala Harris in October on 60 Minutes to make her look better than her full answer would have made her look. Most specifically, they noted that an excerpt of the 60 Minutes interview that aired the same morning on Face the Nation showed her answering the same question about Biden administration policy and the war between Israel and Hamas. Same question from the correspondent Bill Whitaker differently. They used a different edit to the same question on Face the Nation and then later on 60 Minutes.

I'm going to play the short version of what was different there. This is enough, I think, to make it clear without playing really extended excerpts that could be confusing. I'm just trying to be really clear here in this context, and I think this is an accurate representation of what they're upset about. Here is Bill Whitaker's question and Harris's answer as used on Face the Nation.

Bill Whitaker: It seems that Prime Minister Netanyahu is not listening.

Kamala Harris: Bill, the work that we have done has resulted in a number of movements in that region by Israel that were very much prompted by or a result of many things, including our advocacy for what needs to happen in the region.

Brian Lehrer: Now, here's the same Bill Whitaker question, but the edit of Harris's answer on 60 Minutes was not the same slice we just heard.

Bill Whitaker: It seems that Prime Minister Netanyahu is not listening.

Kamala Harris: We are not going to stop pursuing what is necessary for the United States to be clear about where we stand on the need for this war to end.

Brian Lehrer: Katie Fallow, I have longer versions of those if I need to play them to make the point clearly that Trump is trying to get to or that CBS is defending against. What do you think the public or a jury, if it gets that far, should make of those differences? The Trump allegation is that the 60 Minutes version, which presumably was going to be seen by a lot more people, cleaned her up a bit to make her look less rambly than they say she was in the full answer.

Katie Fallow: I think that this case should never go to a jury because it is frivolous on its face in my opinion. This is not a defamation lawsuit. What Trump or Trump's campaign is alleging here is that CBS violated a state consumer protection statute, Texas consumer protection statute, which is aimed at protecting consumers from fraud in how people, for example, describe products. If you were to allow Trump and others or people on the other side of the aisle to bring claims under state consumer protection statutes about how news outlets edit their interviews or quote politicians, it would just be a direct affront to free speech and news coverage of politics because, essentially, you could always quibble with it.

Of course, Trump himself, probably someone could say if he's quoted certain ways, I mean, he certainly has been known to make rambling statements. Sometimes news outlets will edit his answers. If his enemies or opponents were able to go and sue anytime and claim that that violated state law, that would be just a real problem. The Supreme Court and the courts have generally said that when you're filing a lawsuit, whether you call it a defamation lawsuit or a consumer protection lawsuit or a copyright lawsuit, but your real aim is to hold someone liable for their speech and it's protected political speech, then the First Amendment means you can't proceed in court in that way. I would expect this case to be dismissed way before it gets to any kind of jury.

Brian Lehrer: Yes, on those editing decisions. A listener writes, "How does Trump's claim about the Harris interview compare to the copious number of examples of the media, sane washing his comments and speeches?"" I guess I was thinking whether or not we call it [00:36:30] sane washing, again, as if there was an intent to make him look more reasonable than he may have looked in a longer answer. I think working in audio journalism as I do, that one of the things that we do all the time is take what might be a longer answer that has other things in it or a style of presentation that people may be critical of, whether the person was thinking things through clearly or in full control of their faculties at the moment, or whatever the thing might be.

We're looking for that piece of the answer that is most responsive to the issue we're trying to identify in the person's position on the issue, that's most clear for the listeners or in CBS case, the viewers in that sense. That's, I guess, what they were trying to do there with the 60 minutes version. I mean, she answered both of those things to Bill Whitaker's question. They used one version on Face the Nation Sunday morning. They used another version on 60 Minutes-- another portion on 60 Minutes Sunday night. In both cases, it seems to my ear that they were just trying to show the audience what Harris's take on the question was.

Katie Fallow: Right. Exactly. That is an editorial judgment that people in radio or publications make all the time and that the courts have held is protected speech. Whether it's through direct government regulation or through a lawsuit where the court would essentially penalize the speech, if you were to, for instance, say, "Oh, CBS is liable for its editorial judgment, for how it edited those clips," that would be interfering with its editorial judgment.

You could criticize it, and you could say that wasn't a fair representation of what she said. Then you could respond, well, yes, it was. It was just a different answer. Or you can engage in your own speech to say, well, here's what the full interview said. To bring a lawsuit and seek $10 billion in damages when I'm not even sure what the harm is, I just think it's ludicrous.

Brian Lehrer: A listener asks, "Isn't Trump alleging that Harris's answer was to a different question, not just abbreviated?" I actually don't know the answer to that question. Do you?

Katie Fallow: I don't. Again, I think it's fair play to criticize how 60-- if there is merit to it, or just if that's your opinion, to criticize how it was presented. That's different from saying then CBS should be required to pay $10 billion for that judgment.

Brian Lehrer: Right. All right, next case. Trump suing the Des Moines Register and Pollster Ann Selzer. We played the clip before alleging they purposely depressed Trump's poll numbers as the election got closer as a matter of fraud and election interference to help Harris. That's the allegation. It's one thing to get a poll wrong by like 20 points as they did, big egg on their face, reputational damage from that alone for Ann Selzer and the Des Moines Register, it's another thing to say they fraudulently rigged the poll to help one candidate and hurt another. How would they go about trying to prove that allegation?

Katie Fallow: I think, like the case against CBS, this seems completely meritless on its face, and a big danger to the ability of pollsters to do their work and for newspapers and news outlets to report on polling predictions. I mean, the nature of polls, as we all know, particularly over the past 10 years, has been up and down in terms of whether we think it's reliable. There has been reports of a sea change in how pollsters are getting their information and how they weight certain responses related to a change in how people answer their phone, for example.

The idea that then, first of all, that you could show that something, a poll is false because it was wrong doesn't make any sense to me. It's necessarily a prediction or a description of the answers you're getting. Even if, I mean, I don't think there's any evidence that there was something fraudulent in this polling. It really appears to me to be, once again, Trump being unhappy with certain coverage and seeking to punish people that he's unhappy with, but also deter others in the future from, for instance, publishing a poll that they think might anger him.

I think it's really dangerous. In terms of how it would fare in the courts, once again, like in the CBS case, using these consumer protection statutes to then apply to election polling, I think that's a bad fit if you are actually going to place liability based on that kind of speech in terms of your poll that implicates the First Amendment. Certainly, Trump would have to show that the poll was "false". I just think when you think about the nature of polling, I don't think that he can do that, and nor do I think that the courts should allow him to pursue that avenue.

Brian Lehrer: I think what he wants to get into there is the internal workings of how they sampled for that poll. Again, there, I think he would have to show that if they were taking an unrepresentative sample, which apparently they were, that it was done on purpose to hurt Trump. That's what he'd have to prove in court, right?

Katie Fallow: Yes. I don't think he could. Even if that had happened, I mean, I think that would probably be protected speech. First of all, I would want to see how her polls and the errors of her polls, supposed errors of her polls, compare to polls of other pollsters, essentially, the work of other pollsters. Second of all, there are lots of people in the political sphere that make strong statements about Trump or about Kamala or about Biden. Even if that speech is ill-intentioned and seeks to hurt the prospects of the candidate, we protect it as core political speech.

Brian Lehrer: Last case, real briefly, because we're running long, the Trump suit against Bob Woodward for releasing interview tapes. Do you know the basis for that? Was there an off the record agreement of any kind about the words or the audio of the works?

Katie Fallow: My understanding is there was no specific agreement. Again, I'm somewhat speculating. What I know about is that Woodward used tapes that he then used to write his book and then he released it as part of his audiobook. Trump says, "Oh, well, you never told me that." As Woodward has said in his legal filings, it's just this long tradition of presidents meeting with journalists. There's never been, I think somewhat, it's unprecedented to say, "Oh, well, then the president owns the portion of the recordings that are his answers."

It's somewhat of a kind of interesting copyright question because it's not completely settled. If you have a recording of an interview, who owns the copyright in the court questions versus the answers, versus how the interviewer edits it. My guess is this is once again not going to succeed in court and just represents another example of Trump using the court system to try and intimidate journalists.

Brian Lehrer: Which I guess is probably the last thought that we need to articulate, as we did at the beginning of the segment about what might be going on here. Listener texts wanting us to get back and end on that, quoting the text, "Take it to the next logical level. Clearly, Trump is trying to undermine the fourth estate. He wants to crouch free speech. He wants to intimidate the press. He's done so and said so out loud." I guess you agree with that listener.

Katie Fallow: Yes. I think Trump said it. He said it earlier this week. I'm paraphrasing, but essentially, "Oh, I think my coverage has been fairer, but if it's not fairer, we're going to have to straighten the press out."

Brian Lehrer: Katie Fallow is a chief litigator at the First Amendment Institute at Columbia University, The Knight, K-N-I-G-H-T, First Amendment Institute at Columbia University. Thank you very much for joining us. We really appreciate it. Happy holidays.

Katie Fallow: Thank you so much. You, too.

Copyright © 2024 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.