The Press Goes Full Donner Party

By David Snyder  |August 8, 2018 |

As 2018 slouches onward, an already embattled news media has found itself ever more isolated and mistrusted. Just one depressing frame from the lowlight reel: according to a recent poll by Axios, nearly all Republicans (93%), and a majority of Democrats (53%), believe traditional news outlets knowingly report false or misleading stories “at least sometimes.”

As shocking as this finding is to anyone with even a glancing exposure to how journalism works—and specifically how making up facts is a career-ending, mortal sin for any reporter—it’s right in line with similar recent findings, and with the tenor of our times.  

President Donald Trump continues to actively promote his false “fake news” narrative; a candidate for Congress physically assaults a reporter with no apparent negative effect at the polls; the ranks of working journalists continues to plummet, as do the bottom lines of many if not most daily newspapers.

Against this backdrop of unrelenting setbacks, both external and self-inflicted, it perhaps comes as no surprise that the press has gone full Donner Party.

The Daily Beast recently published a report detailing how a few powerful journalists are hiring lawyers (“media assassins”) to “kill” investigative pieces before they are published.  In other words, journalists have begun to train the weaponry of litigation on their own kind.

This is more momentous than the relatively paltry attention paid to The Daily Beast piece suggests. As competitive as journalists are in the practice of their craft, they’ve generally drawn a red line at actually suing (or threatening to sue) their competitors for defamation or the like. There’s an almost tribal mentality among journalists and the lawyers who represent them that recoils at the notion of using legal means to punish or silence other members of the media.  

The zero-sum logic of self preservation has apparently erased this red line.  According to The Daily Beast’s sources, three men with prominent posts in the journalism world—60 Minutes Executive Producer Jeff Fager; Glenn Thrush of the New York Times; and former Today show host Matt Lauer— have reportedly hired a law firm that boasts of specializing in killing pieces before they run.

Thrush came under fire after reporting by Vox detailed allegations of four women who described his “inappropriate sexual behavior;” Lauer was terminated by NBC after sexual misconduct allegations against him surfaced; and Fager selected Charlie Rose for the 60 Minutes roster in 2008 and put him on the CBS morning show in 2011. CBS fired Rose in November 2017 amid numerous sexual harassment allegations.

The Daily Beast confirmed that all three men retained the “media assassin” law firm, Clare Locke, but did not report on the specific work the firm did for Thrush or Lauer.  As for Fager, his retention of the “media assassins” appears to have been directed at watering down an investigative piece by the Washington Post about the extent to which CBS managers knew about Rose’s alleged misdeeds.  In a statement to the Post, Fager denied knowing anything about the allegations about Rose before they became public.

Journalists hiring lawyers to tamp down or kill journalism is “extraordinary,” and akin to “playing with fire,” First Amendment lawyer Theodore J. Boutrous, Jr. told The Daily Beast. Indeed. When those with the most power and money in journalism train their firepower on their own, it weakens not just the ability of the press to fully report the facts in the individual stories at issue, but the credibility of the press at large in asserting that efforts by the rich and powerful to bludgeon them into publishing a watered-down version of the truth are contrary not just to journalistic practices and norms, but the law of the First Amendment.

Now, it bears noting that the circumstances here are highly unusual.  The journalists at issue are themselves the subject of aggressive journalism—a posture journalists rarely find themselves in. So, in some sense, it may be somewhat unsurprising that these journalists would “fight back” with legal representation. But their willingness to cross a heretofore bright red line was, I suspect, made much easier by the profoundly debilitated state the press finds itself in.

The law firm in question, Clare Locke, brags on its website about how its “biggest victories” are the “flawed stories that never get published,” as well as the “scandals you never read about in the news.” It describes its clients as “CEO’s, hedge fund managers, professional athletes, celebrities, high-net worth and prominent individuals.”

In other words—the rich and powerful. What about the targets of the firm’s legal firepower? Not so much. Those on the receiving end of Clare Locke’s work are journalists. Which is to say that, by definition, they lack financial clout.  

I have some personal experience with Clare Locke and its tactics.  Between 2013 and 2015, I helped defend Mother Jones magazine against a lawsuit filed in Idaho by an Idaho billionaire named Frank VanderSloot who claimed the magazine had defamed him.  VanderSloot’s legal claims were meritless, as an Idaho court ultimately found. Clare Locke represented VanderSloot, and they lost, hands down. But that was after more than two years of coast-to-coast litigation that cost Mother Jones dearly, but likely amounted to little more than a rounding error in the enormous wealth of Clare Locke’s client.  

I find it unconscionable that Mother Jones, a nonprofit with a nonprofit’s budget, was forced to spend substantial sums of money to defend against claims that even a hometown judge in VanderSloot’s hometown court system acknowledged did not withstand legal scrutiny. The problem is that it took more than two years to reach that point. And this is the rub: Clare Locke is expert at leveraging the outlandish wealth of their clients to punish purported media “offenders,” even if the client’s legal claims lack merit.

As galling as the Mother Jones case was, I find it even harder to stomach  Clare Locke’s assertion that their work protecting the rich and powerful from an increasingly embattled, impoverished press is in service of some higher good. Firm co-founder Tom Clare told The Daily Beast that the firm’s goal is to make “sure that media reports about our clients are truthful and accurate.”

This is a bit like the crocodile telling the gazelle that he just wants to make sure the gazelle’s sprinting ability is up to snuff. There is a world of difference between a firm bringing a meritorious legal claim in order to right a concrete wrong, and a firm wielding their clients’ nearly unlimited wealth in order to intimidate, punish and silence the press—even (and maybe particularly) where there said clients lack legal support for their claims.

It’s sad to see journalists join the ranks of Clare Locke’s rich and powerful clients. Sad, but perhaps not surprising.

In this topsy-turvy world, where truth seems ever more subjective—and subject to the power and wealth of those who would suppress it—the press’ power and obligation to tell the truth and hold the powerful accountable is more important than ever.

The more that power is weakened, the worse off we all are.  

When the power is weakened by attacks from within, it’s hard not to think of that misbegotten wagon train in the Sierra Nevada in 1847. But here, the Donner Party may not just be journalists, but all of us.

David Snyder, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors. Elk Grove News is a dues paying member of the First Amendment Coalition.