Tuesday Update: The Fear is the Point

Well, that didn’t take long, did it?

Within moments of sending out Monday’s newsletter — which warned that ABC’s capitulation would open the floodgates — Donald Trump escalated his campaign of retribution against journalists, pollsters, and critics.

So, here’s a quick update:

• Trump’s Retribution Tour Begins - Puck

  Donald Trump is already delivering on his promise to wage legal vendettas against political enemies and journalists, alike.

  On Monday night, less than 48 hours after securing a $15 million settlement from ABC News, Trump filed a lawsuit in Iowa District Court accusing the venerated pollster Ann Selzer and her polling company—as well as The Des Moines Register and its parent company, Gannett—of “brazen election interference” and consumer fraud over her November 2 poll showing Kamala Harris winning by three points in Iowa.

Suing a pollster who got it wrong is... a novel legal theory. And I think it’s safe to say that the odds are (heavily) against its success.

But, as I argued yesterday, the point is not necessarily winning. The point is fear.

And the Selzer lawsuit is only his latest. In his rambling fact-challenged press conference, Trump also targeted Bob Woodward, CBS, and the Pulitzer Board because it awarded its 2018 Prize to the New York Times and the Washington Post for their coverage of Trump’s campaign, the Steele Dossier, and the Mueller investigation into Russian interference with the 2016 election.¹

• Emboldened by ABC settlement, Trump threatens more lawsuits against the press | CNN Business

  Trump is expanding his threats of legal action against the news media as he prepares to move back into the White House, stating he wants to “straighten out the press.”

  “Our press is very corrupt, almost as corrupt as our elections.”

  While the threshold for proving defamation is high, requiring proof that an outlet knowingly published false information, even if a lawsuit is tossed by a judge or a media outlet ultimately prevails, the punishment is in the process. Lawsuits can drag on for months or years and can cost companies millions in legal fees.

  Some news organizations are already warning their reporters to prepare: Axios recently told its staff to expect an increased number of lawsuits from the Trump administration, Semafor reported.

  **

• Michelle Goldberg is calling what’s happening now, “The Great Capitulation”.

  At a press conference at Mar-a-Lago on Monday, Donald Trump described recent visits from Tim Cook, C.E.O. of Apple, Sergey Brin, a co-founder of Google, and other tech barons. “In the first term, everyone was fighting me,” he said. “In this term, everyone wants to be my friend.” For once, he wasn’t exaggerating.

Goldberg noted that Meta’s Mark Zuckerberg, OpenAI C.E.O. Sam Altman, Salesforce C.E.O. Marc Benioff, and Amazon/Wapo CEO Jeff Bezos have all kissed Trump’s ring² in one way or another. And the billionaire owner of The L.A. Times, Patrick Soon-Shiong, “killed an editorial criticizing Trump’s cabinet picks and urging the Senate not to allow recess appointments.”

Most shocking of all, last week ABC News, which is owned by the Walt Disney Company, made the craven decision to settle a flimsy defamation case brought by Trump.

“Collectively,” she writes, “all these elite decisions to bow to Trump make it feel like the air is going out of the old liberal order. In its place will be something more ruthless and Nietzschean.”

Happy Tuesday.

To the Contrary is a reader-supported publication. You may disagree with me from time to time (and I expect you will, because I’m not promising you a safe space here). But I’ll always try to give it to you straight. To receive new posts and support my work, consider becoming a free or paid subscriber. (And I’m immensely grateful for your generous support.)

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ICYMI…. Here’s Monday’s newsletter…. (If you read it already, you can just scroll down and check out the dog pictures again.)

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“When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.” — Edmund Burke

“You were given the choice between war and dishonour. You chose dishonour, and you will have war.' - Winston Churchill

**

Over the weekend, the folks who run ABC surrendered to Donald Trump, because, we are told, “this problem needed to go away.”

But the “problem” won’t go away. In fact, they just made it far worse.

**

ABC Grovels

Bill Kristol calls the gobsmacking decision by ABC to settle Trump’s libel suit, apologize, and pay him $15 million, the “Most Alarming Development Yet.”

And he’s right.

“This was a true fire bell in the Trumpist night,” Bill writes, “an awful herald of so much that may lie ahead…”

The network’s capitulation — in a lawsuit that it was almost certain to win — was bad enough. But, as Bill notes, “the precedent this sets, the floodgates it opens for many other such suits, the signal of open capitulation, are all terrible.”

What other corporate counsels are going to advise their clients to fight such lawsuits if mighty Disney won’t? What other corporations—media or otherwise—are going to resist bullying by the Trump administration? What outlets, in the future, will walk on eggshells? Will they even avoid telling the truth in hopes of avoiding litigation?

**

Trump sued ABC alleging that the network and anchor George Stephanopoulos had defamed Trump when he said a jury had decided that Trump "raped" E. Jean Carroll. But the jury had not done so; it found Trump liable for “sexual abuse,” but not “rape.” Stephanopoulos was, in fact, technically wrong.

But in libel law, being wrong is not enough for a plaintiff to win a defamation suit, especially one involving a public figure. To win, a public figure like Trump has to show that the statement was made knowing that it was false; in reckless disregard of the truth; acting with actual malice. That has been the standard since the Supreme Court’s landmark case, Times v. Sullivan.

So, let’s review the facts here.

Because the voters of this country chose to return Trump to power, we now find ourselves in a debate about the differences between sexual abuse and rape — a distinction that turns on the distinctions between “digital penetration” of a woman’s vagina and penile penetration.

I apologize for the creepiness, but the public record is what it is.

Last year, after the verdicts against Trump came down — finding him liable for assaulting Carroll and defaming her on multiple occasions — Judge Lewis A. Kaplan issued a lengthy written statement clarifying what the jury had found. The Washington Post reported: “Judge clarifies: Yes, Trump was found to have raped E. Jean Carroll.”

Judge Kaplan’s full opinion is worth your time to read in its entirety (and printout and share).

“The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape,’ ” Kaplan wrote.

He added: “Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.”

Kaplan said New York’s legal definition of “rape” is “far narrower” than the word is understood in “common modern parlance.”

As Judge Kaplan explained, New York’s law requires forcible, unconsented penetration with the attacker’s penis.

The jury found that Trump had used his finger, which judge Kaplan explained “meets a more common definition of rape.”

He cited definitions offered by the American Psychological Association and the Justice Department, which in 2012 expanded its definition of rape to include penetration “with any body part or object.”…

“The jury’s finding of sexual abuse therefore necessarily implies that it found that Mr. Trump forcibly penetrated her vagina,” Kaplan wrote, calling it the “only remaining conclusion.”

But apparently, none now dare call it “rape.”

**

So, ABC had more than a solid case. Most legal experts — especially those versed in libel law and First Amendment jurisprudence — thought that Trump’s lawsuit against ABC was of a piece with his other borderline frivolous attempts to intimidate the media.

Thus, the shock when ABC and its parent company abruptly folded, not only handing Trump a major victory, but emboldening both the president-elect and his vindictive MAGA allies to launch further attacks on the press and his critics.

As Oliver Darcy noted: “Lawyers from all political persuasions were astonished by the settlement. ‘The ABC News settlement makes zero sense from a legal standpoint,’ George Conway wrote on Bluesky. Marc Elias said it amounted to ‘another legacy news outlet choosing obedience.’”

The surrender also marked a stark reversal for the network. Darcy noted that, “Stephanopoulos had previously defended himself against Trump’s defamation claims, saying in May that he wouldn’t be ‘cowed out of doing’ his job ‘because of a threat.’ His bosses at ABC News and Disney apparently did not share that spirit.”

There is, of course an extremely good reason why— until now — the media has resisted surrendering to bullies like Trump. “Major news organizations have often been very leery of settlements in defamation suits brought by public officials and public figures, both because they fear the dangerous pattern of doing so and because they have the full weight of the First Amendment on their side,” RonNell Andersen Jones, a professor of law at the University of Utah, told the NYT.

“What we might be seeing here is an attitudinal shift,” she added. “Compared to the mainstream American press of a decade ago, today’s press is far less financially robust, far more politically threatened, and exponentially less confident that a given jury will value press freedom, rather than embrace a vilification of it.”

**

By bowing the knee, ABC hoped that it had saved itself from troubling litigation. But, as Kristol notes, they have actually opened the floodgates. Lawyers for Trump and his appointees — including Kash Patel and Peter Hegseth — are threatening to file defamation suits against other journalists and critics. And the MAGA claque — including the thoroughly hackified Hugh Hewitt — are urging Trump to also file even more lawsuits against media outlets.

Those cases remain longshots. But the point is not necessarily to win them.

The point is the fear.

The point is to make journalists and critics afraid of Trump’s retribution.

The point is to make them wonder if they are next.

The point is to make the price of truth simply too high.

The point is to saddle them with fat legal fees.

The point is to make them lie awake at night.

The point is to make critics, and reporters, and editors wonder if it is all worth it; to wonder why they should stand and fight, if the billionaires and the corporations who run major media outlets run and hide.

The point is to have their spouses turn to them and say, ‘We could lose it all.”

“It’s a concerted strategy,” writes lawyer Harry Litman, “and it is working.”

Trump already has shifted the balance of power between the media and the presidency before even taking office. This is a significant and deeply troubling development, especially as Trump continues to erode other democratic norms that make it all the more important that the media perform its traditional function of reporting the facts and pushing back against abuses of power.

Exit take: It’s working until journalists — and the corporate media — refuse to surrender and fight back.

Meanwhile, in Wisconsin…

We’re seeing how fear works its way into academia. James Wigderson reports:

A professor at the University of Wisconsin - Madison made the mistake of telling the truth and was pressured to apologize.

"We have a psychopath that’s going to be the head of Health and Human Services in RFK Jr," Professor Timothy Paustian told a microbiology class, according to the Milwaukee Journal Sentinel. "He’s against vaccines. He's a moron. That's not a political thing, that's a fact."

Paustian was referring to Robert F. Kennedy Jr., President-elect Donald Trump's choice to be the Secretary of Health and Human Services (HHS). Paustian added that if a pandemic occurs while Kennedy is Secretary, "he's going to be talking about crystals and meditation."

Unfortunately, Paustian's comments were recorded and given to WISN-AM's Dan O'Donnell, a local rightwing radio talk show host, who posted it on social media.

For some reason, not made clear by the Milwaukee Journal Sentinel, Paustian felt the need to apologize, and directed O'Donnell to a recording of the apology.

State Republicans have seized on the criticism.

Republican lawmakers seized on the video clip. Assembly Speaker Robin Vos, of Rochester, retweeted a comment by U.S. Rep. Bryan Steil, which said universities should be teaching students how to think, not what to think.

At least one Republican who serves on the powerful budget-writing committee that plays an important role in UW funding also weighed in.

"The UW system just asked for $855M from the taxpayers and there's a lot of heartburn in the Capitol and in communities all over the state because of examples just like this," state Sen. Julian Bradley, R-New Berlin said on X. "That's not a political thing, that's a fact. Not joking."

How did UW-Madison’s administration react? Did it defend the professor? Stand by his academic freedom?

No it did not. Writes Wigderson: “Academic freedom was thrown out the window to appease Republicans in the legislature.

"While President Rothman supports academic freedom, he has championed civil dialogue so that we can better discuss and debate the facts with mutual respect," UW System spokesperson Mark Pitsch said. "An apology was the right thing to do."

Unafraid

Moses. Unafraid.

**

Via J.F. Riordan: Eli was a very good dog while Auggie was getting his shots. Eli willingly got out of the car—no one had to pull him out (Last time it took taking him around to the back door and three of us dragging him from the back seat.) He met three strangers calmly. He sat and allowed himself to be touched, and he was a very sweet, good dog.

**

Eli is getting in the Christmas spirit.

Both boys are on the watch for violations of the First Amendment….

1. Via Mediaite:

“We’re filing one on 60 Minutes. You know about that, where they took Kamala’s answer, which was a crazy answer. Horrible answer. And they took the whole answer out and they replaced it with something else she said later on in the interview, which was a great answer, but it wasn’t like the first one,” Trump continued, repeating his criticism over CBS’s pre-election interview with Vice President Kamala Harris.

CNN reported in early November that “Trump filed a lawsuit Thursday against CBS, demanding $10 billion in damages over the network’s 60 Minutes interview with Vice President Kamala Harris. The suit was immediately ridiculed by First Amendment attorneys, who called it ‘frivolous and dangerous.’”

“The first was grossly incompetent. It was weird, and that was fraud and election interference by their news magazine. A big part of CBS News. So, as you know, we’re involved in that one,” Trump continued on the topic, adding:

We’re involved in one which has been going on for a while and very successfully against Bob Woodward, where he didn’t quote me properly from the tapes. And then on top of everything else, he sold the tapes, which he wasn’t allowed to do. He could only use them for reporting purposes, not for sale purposes. And he admits that.

And I think we’ll be successful on that one. And we have one very interestingly on Pulitzer because reporters at The New York Times, Washington Post got Pulitzer Prizes for their wonderful, accurate, and highly professional reporting on the Russia, Russia, Russia hoax. Well, it turned out to be a hoax and they were exactly wrong.

People, like many people, John Solomon, Sean Hannity, he’s not for Pulitzer, but Sean Hannity got it right. Many people got it right, Tucker [Carlson] got it right. Jesse [Watters] got it right. Laura [Ingraham] got it right. Jeanine [Pirro] got it right. A lot of people got it right. They get everything. They gave it to reporters.

“They got it absolutely wrong. And now everybody admits it was a hoax. And I want them to get back, take back the Pulitzer Prizes, and pay big damages,” concluded Trump. “And I think we’re doing very well on that one. They have no excuse for it. They gave a Pulitzer Prize to writers that got Russia, Russia, Russia wrong. And so I think we’re doing well. And I feel I have to do this. I shouldn’t really be the one to do it. It should have been the Justice Department or somebody else. But I have to do it. It costs a lot of money to do it, but we have to straighten out the press. Our press is very corrupt, almost as corrupt as our elections are.”

2. A euphemism.