In 1971, the Nixon administration asked for a court order to stop the New York Times from publishing further stories about the so-called Pentagon Papers – documents that showed the US government had escalated its Vietnam war efforts even as it was acknowledging privately that it could not win the war. A temporary restraining order – the first time the US press had been restrained prior to publication – was granted.
Knowing she could be sued, jailed and could even have faced financial ruin if her own paper followed suit, the Washington Post’s publisher, Katharine Graham, decided that the Post, which had copies of some of the Pentagon Papers, would publish anyway. As immortalised in the 2017 film The Post, Graham – who had previously described herself as shy and insecure – took a deep breath and told her editors: “Let’s go. Let’s publish!”
Defying the court order was a seriously risky move for Graham. The Washington Post Company had gone public just three days earlier. A criminal charge put its multimillion-dollar stock offering in jeopardy. Not to mention that Graham herself could have been jailed or that a criminal conviction could have given the Federal Communications Commission (FCC) justification for stripping the Post of television broadcast licences.
That decision looks especially brave in today’s climate, when the new administration led by Donald Trump – who in his first term repeatedly called the press “enemies of the people” – seems even more determined than the Nixon administration to stifle reporting.
Today, Graham’s defence of the right of the press under the first amendment to publish news of public interest should be a clarion call for her modern-day counterparts. The US media is, as the judge Murray Gurfein – who issued the Pentagon Papers’ restraining order – noted, “cantankerous” and “obstinate”. But it has also, unlike the media in many parts of the world, traditionally been united against threats to its independence – even when those threats are being made to organizations from across the political aisle.
But that defiance and solidarity now appears under strain as outlets cave to politically motivated threats from the new administration.
In December, ABC News settled a defamation lawsuit brought by Trump for $15m, a case that many media law experts said they should have fought given the high threshold traditionally required for a public figure such as Trump to prove defamation.
Now CBS looks like it might settle a lawsuit over edits it made to a 60 Minutes interview with the presidential candidate Kamala Harris, which Trump’s team allege had been deceptively edited to cast Harris in a more favorable light ahead of the election. (Editing interviews is standard practice in news reporting to avoid repetition.) Initially, CBS refused to hand over the transcripts but following pressure from the FCC, it sent the raw footage and all transcripts to the agency, now led by the Trump appointee Brendan Carr.
Carr has made no secret of his desire to use the FCC’s powers to go after organizations he believes are not fulfilling their public interest mandate; he explicitly linked the CBS case to a deal in which CBS’s parent, Paramount, is seeking approval to sell 28 of its local broadcast TV stations.
The capitulations – on top of last-minute interventions by the owners of both the Washington Post and Los Angeles Times to halt editorial endorsements of either candidate ahead of last year’s presidential elections – are worrying, not least because they send a signal that such spurious lawsuits work to silence the “cantankerous” press.
And while the likes of ABC and CBS may have deep pockets to be able to weather such attacks, the vast majority of US news outlets do not. The online non-profit newsroom Wasau Pilot & Review, which has a staff of just four, faced bankruptcy after a state senator sued it for defamation over its report that he was overheard using an anti-gay slur during a county board meeting. In a story headlined “Even if we win, we lose,” the Pilot & Review acknowledged the challenge that faces so many small news outlets – the cost of defending such suits is prohibitive, even if the case is ultimately thrown out. Such legal harassment, increasingly common across the world, can also taint the public’s view (“there’s no smoke without fire”) of the press, further eroding already febrile trust in the media.
Non-profit newsrooms are particularly worried. A call hosted by the Committee to Protect Journalists (CPJ) last November, in the weeks following the election, was attended by representatives from more than 100 non-profit news outlets throughout the United States, eager to understand what vectors might be used to challenge their reporting.
Their caution is warranted; local press is already severely weakened. A 2024 report from researchers at Northwestern University found that more than 55 million Americans had limited or no access to local news – the kind of information that shows how local tax dollars are being spent, what decisions local school boards are making, or even how your local sports team is doing. Repeated academic studies have shown a strong link between the amount of local political coverage and voter turnout. Local media proved vital in covering recent extreme weather such as the Los Angeles wildfires.
When Gurfein denied the Nixon administration’s request for a preliminary injunction, he stated: “A ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.” If vital media institutions are to survive this administration, it will be because essential media, on all sides, stand up clearly and unequivocally for the right to report the news. After all, challenging the bullies is part of the job.
Jodie Ginsberg is CEO of the Committee to Protect Journalists
