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'Times' Deputy Counsel On Fighting For Press Freedom In The Trump Era


This is FRESH AIR. I'm Terry Gross. You probably know my guest, the New York Times deputy general counsel David McCraw, from a letter he wrote that went viral. It was in response to a letter from Donald Trump's lawyer threatening to sue the Times for libel. McCraw will read that letter in a minute.

As the Times' newsroom lawyer, McCraw has defended the Times against libel suits in the U.S. and from abroad. He's dealt with legal issues surrounding the publication of sexual misconduct allegations against Harvey Weinstein and the threat of a libel suit that followed. McCraw has filed dozens of lawsuits seeking information that was withheld by the government in spite of the Freedom of Information Act. He's worked for the release of journalists who were kidnapped by extremists or detained by hostile governments.

During the Trump era, he says, the fight about press freedom is about the very nature of truth and whether we, as a nation, believe that a free press counts for something. McCraw has written a new memoir called "Truth In Our Times: Inside The Fight For Press Freedom In The Age Of Alternative Facts." He's been at the Times since 2002, and before that was the deputy general counsel of the New York Daily News.

David McCraw, welcome to FRESH AIR.

DAVID MCCRAW: Thank you for having me.

GROSS: I want to start with your greatest hit (laughter). This is the letter that you wrote in response to Trump's lawyer, Marc Kasowitz, threatening to sue The New York Times for libel. Just set up what had happened.

MCCRAW: We had done a story about two women who claimed that they had been groped by Mr. Trump years earlier. I had read that story the day before we published it. We knew the campaign was going to be unhappy. And we also knew that we were likely to get a lawyer letter. And late the night before I wrote my letter, a letter did, in fact, come in from Mr. Trump's lawyers.

GROSS: And they threatened to sue for libel.

MCCRAW: They asked for a retraction. They made the usual threats, yes.

GROSS: OK, and this was during the campaign. So this is October of 2016. And in response to the letter asking for a full retraction and an apology and to - yeah - like, to just take it off the website, not publish it any further, here's an excerpt of the letter you wrote. Would you read it for us?


(Reading) The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump has bragged about his nonconsensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host's request to discuss Mr. Trump's own daughter as a piece of ass. Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump's unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.

But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance - indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night's presidential debate. Our reporters diligently worked to confirm the women's accounts. They provided readers with Mr. Trump's response, including his forceful denial of the women's reports. It would've been a disservice not just to our readers, but to democracy itself to silence their voices.

We did what the law allows. We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.

GROSS: Is that the tone your legal letters typically take?

MCCRAW: I think I tend to be a little more down the middle, a little more accommodating. But I felt that in the middle of the campaign, given that their letter had gone public, it was important to stand tall on this one. It was important to set a tone. And so I think that that final line probably is something I've never done in a prior letter.

GROSS: What, saying that we would welcome this opportunity to set him straight in court?

MCCRAW: As a lawyer, I think welcoming is always dangerous. Inviting somebody to sue you is always a risky strategy. But in this case, I felt that we had to draw a line, and that's why I wrote the letter the way I did.

GROSS: So what was the legal outcome of the letter?

MCCRAW: The letter had no particular legal outcome. As I said in a column in the Times afterwards, it's not unusual. Writers of lawyer letters get used to writing letters, not having a response. That's how it goes. They have their say, we have our say, and we play on. That's not a terrible thing.

There's so much about the way the press operates in this country, the way politicians operate in this country that should really not be part of a legal process. That's what the whole marketplace of idea concept is about. That's what campaigns are about. Let's have a public discussion. Let's let the people decide.

GROSS: How often has Trump, first as a citizen - private citizen, and then as president, threatened to sue The New York Times?

MCCRAW: Over time, there was a pattern of receiving letters from Trump's lawyers. Almost all of them dealt with the same topic. That was any time we questioned his worth, his - how much money he had. And we get used to that. It was a bit of a back-and-forth. We would walk through it with whatever lawyer happened to be representing him on a given story. And they all ended up pretty much in the same place - exchange of letters, and we moved on, and he moved on.

But that seemed to be the sensitive point in the time before he was a candidate. How much is he worth? And, of course, that was - that has been a question that has been raised over and over again.

GROSS: And when he became president, how did that change?

MCCRAW: In the time that he's president, he has really taken a different strategy, or expanded on a strategy he had used outside of lawyer letters before, and that is simply challenging the facts, and doing so publicly. As much as Donald Trump has talked about changing libel laws so it would be easier for people to sue, in fact, I think the greater danger is his attempts at delegitimizing the press, at encouraging people not to believe.

A disbelieved press isn't that different from a shackled press. The power of the press comes from its ability to move people to take action. And a controlled press is unable to do that because the people know that it's just the voice of government. A disbelieved press is in the same place, though, if people are going to ignore bad news, going to ignore facts that should prompt action.

So that's one of the things that really concerns me. The mantra of fake news is a particularly dangerous piece of political rhetoric because it sounds like the pursuit of truth, and it's just the opposite. It's an invitation not to think. It's an invitation to label.

GROSS: Well, as recently as February 20 of this year, the president tweeted, The New York Times reporting is false. They are a true enemy of the people. And Trump typically accuses the media in general of being the enemy of the people, but he singled out The New York Times in this tweet.

So I'm wondering, is the president leaving himself open to lawsuits by someone who is attacked by a person motivated by the perception that the press is the enemy of the people? Or is the president leaving himself open to libel lawsuits because he's saying that The New York Times reports false news, that you're a liar, you know, that you're misleading the public?

MCCRAW: I think the likelihood of suing the president for criticizing the press is negligible, maybe nonexistent. That is not where we plan to be heard. We continue to cover the president. We continue to cover the administration.

GROSS: I'm going to stop you there. I'm not surprised to hear you say that. But explain why you're saying that because he has been doing everything to say that you, as an organization - that you're a liar. Basically, he's saying you're undermining our democracy, you're lying, you are the enemy of the people. Why isn't that libel? Why wouldn't you sue for that?

MCCRAW: Terry, I'm going to answer that in a couple ways. One is the by-the-book lawyer answer, and that is the president has immunity for the things he says in office. If it's part of his official duties, he's not susceptible to suit. Official duties, I guess, include criticizing the press.

But the bigger picture here is that we don't believe that going out and taking advantage of libel laws is the right way forward. We would run the risk of creating bad precedents. We would run the risk of essentially doing what we criticize others of doing, and that is using the law to try to silence people.

To me, this is a public debate. It's one we should have in public. It's the way to go. I hope people are listening to what's being said. I hope people are listening to the pushback from us and so many others. But one of the things I think is really important here is this is not just between The New York Times, The Washington Post, CNN, all the other media and the president and his supporters. There is, between those two points on the spectrum, a whole lot of people who care about the country, who vote in elections, who need to just stand up and say, here's what I think about that issue. And I'm hoping they're going to stand up for a free press. It's been so important for so long.

GROSS: Your paper, The New York Times, was part of a Supreme Court case that led to the Sullivan decision - Sullivan v. New York Times - that made it safer for publications like The New York Times to publish things that were true but put heads of corporations or government officials in a negative light because these negative facts about them were being reported.

So Clarence Thomas - Justice Thomas - has written recently in an opinion that he thinks the libel laws should be re-examined and that they're too generous, basically, to the publications and unfair to the people who are being reported on. And he said that there's really no basis in the Constitution for the current interpretation of the libel laws.

So if you could just explain that a little bit and tell me if you're concerned about this possibility, because President Trump has said he wants to change the libel laws, and now you have a Supreme Court justice saying the same thing.

MCCRAW: I may be accused of being too optimistic, but I see that glass as one-ninth full, and I'm not going to worry about it right at the moment. There are eight other justices who could've signed on to that opinion and didn't. Times v. Sullivan has been the law of the land for decades.

GROSS: Would you just explain what it said?

MCCRAW: Yes. Times v. Sullivan set the standard that is applied to public officials when they sue for libel. It was later expanded to public figures. And what the decision said was public officials have to show not only that a story was in error, and not only that it defamed, but that it was done with reckless disregard of the truth. In other words, a public official, to win a libel suit, has to prove that the publisher either knew the story was false or entertained substantial doubts about it at the time of publishing. It is a very, very high standard. It protects a free press. And it's right.

If I thought libel suits were being brought primarily to vindicate people's reputations in suits brought by public officials and public figures, I think that would be worthwhile to discuss, to talk about what the standard should be. But Times v. Sullivan recognized what was really going on. That was libel suits were being used to silence.

L.B. Sullivan was a municipal commissioner in Birmingham, Ala. He did not like the fact that an ad in The New York Times questioned how the police had behaved in trying to control demonstrations for civil rights. It was part of a pattern of suits, all of them focused on keeping Northern reporters from telling the truth about what was going on in the South - the abuse of rights, and the abuse of rights by public officials.

The Supreme Court recognized that. The Supreme Court recognized that libel cases were not being used to save anybody's reputation. Mr. Sullivan wasn't even mentioned in the ad that was at the heart of the case. They were being used to suppress speech. That's why the Supreme Court stood up and set a standard, which was intended to discourage libel suits by public officials.

I think we live in the same time - different issues. But what I think Clarence Thomas' solution would lead to is more suits brought by people in power to silence. That is a very dangerous thing to do in a democracy.

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is David McCraw. He's the deputy general counsel of The New York Times, and he has a new book called "Truth In Our Times: Inside The Fight For Press Freedom In The Age Of Alternative Facts." We'll be right back. This is FRESH AIR.


GROSS: This is FRESH AIR. And if you're just joining us, my guest is David McCraw, the deputy general counsel of The New York Times. And his new book is a memoir called "Truth In Our Times: Inside The Fight For Press Freedom In The Age Of Alternative Facts."

So let's talk about the president and how he's tried to go after people who leak to the press. The president tweeted, the FBI is totally unable to stop the national security leakers that have permeated our government for a long time. They can't even find the leakers within the FBI itself. Classified information is being given to media that could have a devastating effect on U.S. FIND NOW. And that's in capital letters, FIND NOW.

Jeff Sessions said - early in his tenure as attorney general, he said, today I have this message for our friends in the intelligence community. The Department of Justice is open for business, and I have this warning for would-be leakers - don't do it.

But people have been leaking. I mean, the Trump administration has been famous for leaking. The New York Times published an op-ed by someone who went, I think, by the byline Anonymous, even though the people who needed to know at the Times knew who that was. And the headline of this anonymously published piece was "I Am Part Of The Resistance Within The Trump Administration." (Reading) I work for the president, but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations.

So this was really a piece about the chaos inside the Trump administration and the concerns people within the administration had. Trump got very, very upset about this. How did you think through this piece before publishing it? And what did you think the repercussions of publishing this op-ed might be?

MCCRAW: I knew that the piece was going to be provocative. Our editors knew it was going to be provocative. We also thought it was really important for people to hear it - to hear a voice from inside. We weren't really saying anything that hadn't been reported. The difference here was it was a voice of one of the actual people in the administration speaking not filtered through a reporter's account, but speaking directly through an op-ed piece.

I thought that the reaction exceeded even what I would've expected. I didn't think it raised any real legal issues. It was the right of somebody inside the administration to talk about what was going on. You know, the great danger in democracy is not too much information. It's that a government wants to operate in secret and have the public know only what the government wants it to know. So this kind of transparency is so important. And that's why it's important to protect people who decide to come forward and talk to the media, even if they are not supposed to or especially if they're not supposed to.

My policy has been, whenever possible, not to know who the leaker is, who the person inside government is. I think that just helps make sure that the information is secure. I get a description of who the person is, where that person stands in an administration. And that's usually sufficient for me. But I'm also an American citizen. I was very curious to know, who was the writer? And to this day, I still don't know.

GROSS: So President Trump was very upset about this op-ed that was published under the byline anonymous. And he called publishing it an act of treason. Were there any threats against The New York Times for publishing this?

MCCRAW: There were not legal threats. And we never have heard officially from the Department of Justice. That doesn't mean that the Department of Justice didn't take steps. They don't necessarily advertise what they're up to. But obviously, within the organization, people started receiving calls from people who supported the president. This happens from time to time. There are times when, in fact, it's encouraged by people in the administration to call the Times and complain. Many of those calls are scary. They cross a line. They become threatening.

GROSS: Like what kind of threatening? - legal threatening, physical threatening.

MCCRAW: They're physical threats. No, they're not legal threats. And sometimes, they're ambiguous. Sometimes, they're intentionally ambiguous. But it's part of the toxic culture that we live in at Times, where people believe that anonymously online or through the phone or tweeting, they can say things that are, really, outside the bounds of the way we should be talking to each other and discussing politics. It's upsetting to people.

When you see what happened in Annapolis, where someone killed five people at a newspaper, when you see CNN having to be evacuated because of a bomb threat, those sorts of incidents put us on guard. And so the response to something like anonymous many times is perfectly fine. People calling and complaining - that's part of how democracy works. But we need a civil discourse. We're not made better by our threats. And people didn't get into journalism to have to worry about their well-being and the well-being of their families.

GROSS: My guest is David McCraw, deputy general counsel for The New York Times and author of the new memoir "Truth In Our Times: Inside The Fight For Press Freedom In The Age Of Alternative Facts." We'll talk more after a break. And jazz critic Kevin Whitehead will review a new album by trumpeter Steph Richards. I'm Terry Gross. And this is FRESH AIR.


GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with David McCraw, The New York Times' deputy general counsel. As the Times' newsroom lawyer, McCraw's work has included defending the Times against libel suits and threatened libel suits, including from Donald Trump and Harvey Weinstein.

He's advised reporters on issues pertaining to the publication of leaked classified information and has filed dozens of lawsuits seeking information that was withheld by the government in spite of the Freedom of Information Act. He's worked for the release of journalists who were kidnapped by extremists or detained by hostile governments. His new memoir is called "Truth In Our Times: Inside The Fight For Press Freedom In The Age Of Alternative Facts."

A really complicated issue that you had to weigh in on was the publication of the first WikiLeaks dump. So this was - how many years ago was this?

MCCRAW: That was in 2010.

GROSS: OK. So you're called into this meeting. And I think it was right after you had oral surgery that had not gone well, so, like, you're still bleeding (laughter).

MCCRAW: This is true.

GROSS: And you're called into this meeting to find out there's this unprecedented dump of documents, including State Department documents. There are names in there of people who are sources, people who are diplomats both in the U.S. and other countries. And you had to help decide, is this legally OK to publish this? What vulnerabilities would The New York Times have if it published it? - and if it published it, what it should do to protect itself. So can you walk us through a little bit of your thought process in advising the Times how to handle publication of WikiLeaks?

MCCRAW: We had been down this path many times before. We'd received classified information. Our editors had made the decision about whether to publish or not to publish. They had typically talked to the government to get the government's view. Government doesn't have a veto power, but these are hard decisions. And just as if you're writing about business or anything else, you want to hear what the people in the story have to say about it and use that to leaven your decision-making. These issues don't involve, in the main, a legal call. It's unlikely we're going to get sued.

And, as I've said, it's not likely at all that we're going to be prosecuted for some sort of crime. But this seemed different. It was 2010, and this was well before Snowden. And what made it different was simply the volume of it. You know, typically the leak case had been much more like the Pentagon Papers, where someone has said, this information needs to be public. I'm a government consultant. I'm a government employee, and I want to make this known to the public.

So there's been that thought process. This was a much more indiscriminate dump of information. And the sheer size of it seemed to take it to a different place. This was not a set of documents. It wasn't even a volume or several volumes of documents. It was an amazing amount of electronic data. And I thought that it marked the beginning of a new era. And I think I've been right about this. It marked a new era in the way some leaks are going to occur, that they are going to be voluminous, that they are going to be electronic. And also, that they are going to involve publishers, and websites and platforms that are beyond the normal reach of the U.S. government.

I thought that there was some possibility that this would be the one where the government decided to draw the line. And that, obviously, concerned me. The uncertainties of the Espionage Act have been part of how I've operated as a lawyer the entire time I was at the Times. But there was one guiding star I keep coming back to in all of these cases, and that is, is the information in the public interest? My sense has been that the government is not likely to bring a lawsuit, to bring a criminal prosecution against a news organization that is published in the public interest. I wanted to see stories that really spoke to that, that really spoke to something that people needed to know.

In the end, this is not a lawyer's decision. This is really a newsroom decision. But to the extent that I can weigh in on the possibility of a criminal prosecution, I want to do that to the degree I can weigh in on in. Other instances where there's going to be a leak investigation, I want to do that. And I always feel that when we have been able to make the case that this story is necessary for the public that it's going to be very difficult for the Justice Department to decide in the face of that to bring a prosecution.

GROSS: So, you know, in the case of Snowden, and then Assange with WikiLeaks, you had, like, individuals who had gotten access and then leaked the documents. And then later, in the case of North Korea hacking Sony and then giving private emails to reporters who then published some of them, and then the case of Russia hacking the email accounts of John Podesta, Hillary Clinton's campaign chair, and emails from the Democratic National Committee and then giving them to WikiLeaks, who released them, what was your attitude toward that kind of mass data dump when it came from foreign sources with malevolent intentions?

MCCRAW: I don't think there was anybody at the Times who didn't take a hard look at the underlying facts in those cases and ask hard questions about what can we do to make sure that we're not simply advancing somebody's agenda, that the agenda we're going to advance is the public's need to know and right to know about what was going on in the campaign, or what was going on in an important industry or what was going on in government. I would distinguish Sony from the others. The Sony hack was troubling because it was from a private company, not a government actor, not a political actor. And we initially took the position that we were not going to break stories from that. We were willing to do stories after others had written from it because there was no purpose served by standing down once it was already public.

I think the Democratic National Committee hack falls between WikiLeaks, on the one hand, Snowden, on that side, as well, and Sony in that while on one hand it's a private organization, it was information about the most consequential story happening at the time, the presidential campaign. I think that we would have done a disservice to the public not to write about what was in there. And I think we would have done a disservice to the public not to use discretion. And I think we did that. I think we tried to look at the stories that we were doing, make sure that they actually advanced the public interest. Journalism is an art, not a science. Did we get it right all the time? Probably not. But the process of making that decision was important.

I think there's another piece to this, though, that is important. And that's this. The press needs to go out and report on the source of these hacks, who's doing it, why they're doing it, and talk about the consequences for privacy, the consequences for politics and all the rest. That is part of the role here, is, let the public understand what these hacks are about. And I think that information helps readers and viewers, listeners, make decisions about (laughter) a lot of things, including the information, the timing of the information, ultimately, about privacy in the United States.

GROSS: Let me reintroduce you. If you're just joining us, my guest is David McCraw. He's the deputy general counsel of The New York Times, and his new memoir is called "Truth In Our Times: Inside The Fight For Press Freedom In The Age Of Alternative Facts." We'll be right back. This is FRESH AIR.


GROSS: This is FRESH AIR. And if you're just joining us, my guest is David McCraw, deputy general counsel of The New York Times and author of the new memoir "Truth In Our Times: Inside The Fight For Press Freedom In The Age Of Alternative Facts."

You've had to handle sexual harassment and sexual assault stories. You dealt with sexual misconduct with Bill O'Reilly and with the stories that got him fired from his job hosting his show at Fox News. And then right after that, Jodi Kantor gave you a heads up that she was working on a story about Harvey Weinstein and that he'd probably want to sue The New York Times after it was published.

So one of the issues you had to deal with in being the lawyer who was dealing with the reporting on the Harvey Weinstein story was women had signed nondisclosure agreements. The women who had settled with him had signed nondisclosure agreements. So legally, they were not allowed to talk about the agreement or what they were accusing Harvey Weinstein of doing. So what was your advice to reporters about how to handle the nondisclosure agreements and what kind of liability the women would have, the sources would have, if they broke the NDAs - the nondisclosure agreements?

MCCRAW: I get very nervous when our lawyers provide legal advice. (Laughter) I prefer that they not do that. And so one of the things that I counsel our reporters to do when they face this particular situation is to be absolutely clear with the person who signed the nondisclosure agreement. The message has to be, it's your decision. I understand entirely if you can't talk to me - and advise the person that he or she should talk to a lawyer, get his opinion on what the consequences might be.

I think that a lot of people came to understand that even though they'd signed an NDA, it was unlikely that the person on the other side was ever going to enforce it. And they came forward despite their NDA. I think as more people did that, it provided courage to others that there wouldn't be consequences.

But they are a legal document. They do set legal requirements. And a person could, at least, in theory, face a lawsuit for violating that NDA. I'm sure that more often than not, people decide to abide by them. There's every reason to. Why call attention to yourself? Why run the legal risk? But there were a number of people who, I thought, courageously were willing to take the risk and speak out.

GROSS: One of the most amazing parts of this story from a behind-the-scenes perspective is that you learn through a New Yorker story written by Ronan Farrow that Weinstein's team had hired Black Cube, which is a private investigation company whose employees include former Israeli intelligence agents. And tell us what you found out they were hired to do regarding The New York Times.

MCCRAW: Once The New Yorker had done that very fine piece of reporting and made the Black Cube contract public, it confirmed what, I think, we had suspected, which was that our reporters were subject to being followed, having people assume fake identities to contact them to try to engage in a conversation in which the operative hoped to gain compromising information or information that cast doubt about the story.

It wasn't shocking in the sense that, from time to time, I have heard of cases where companies or others have used private eyes to, essentially, do op research on reporters. But it was particularly disheartening to see it done to the extent it was done. There was no way to look at this as an innocent attempt to just find out what we were doing. This was really directed at trying to stop us from writing about Harvey Weinstein.

GROSS: It was literally directed at trying to stop you. I mean...

MCCRAW: Money on the line - they got a bonus if they did it.

GROSS: Yeah. They got an extra $300,000...


GROSS: ...If they succeeded in preventing The New York Times from publishing the - you know, the Weinstein story. And their fee was $200,000, so the bonus was going to be more than the fee was.

MCCRAW: Yes, they - the deal was was set up in such a way that its real purpose was not hidden. This was an attempt to try, in some way, to get The New York Times not to publish a story about Harvey Weinstein.

GROSS: What makes the story even more interesting and complicated and strange is that the firm that hired Black Cube to try to stop The New York Times from publishing the story - the law firm that hired them was the law firm in which David Boies is a partner. And that same firm was sometimes used by The New York Times as its law firm when the Times needed extra assistance.

And in fact, you were wrapping up a suit that involved David Boies' law firm's assistance to The New York Times. So on the one hand, the firm is trying to prevent you from publishing a story. And at the same time, the firm is representing you in a different case. That's bizarre.

MCCRAW: It was a very difficult time. We were using Boies Schiller in a very complicated libel suit. And they did outstanding work. As it turned out, just as the Black Cube disclosures were being made by New Yorker, we were putting the finishing touches on a case that we had won and were just taking care of some paperwork to have it dismissed. There is no question that the Boies firm was free to represent clients other than New York Times, clients whose interests may be hostile to The New York Times.

That's not really the issue. It's not a matter of legal ethics. It's, really, more a matter of, in my mind, how we treat each other, that we were a client and that what was being proposed went to something very fundamental in our business. It's, in fact, the heart of our business. We are in the business of publishing news, doing stories. And this contract with Black Cube entered into by the Boies firm on behalf of their other client, Harvey Weinstein, was really attempt to try to, in my mind, prevent that from happening. I admire much of what David Boies has done as a lawyer. He did an extraordinary job defending CBS years ago in a very high-profile libel case. His firm has done very, very good work on behalf of trafficked women. This was not, though, one of those things that I think paid honor to the best of what law firms do.

GROSS: So you wrote the firm a letter in which you said it is inexcusable and we will be pursuing appropriate remedies. Did you pursue appropriate remedies? And if so, what were they?

MCCRAW: We didn't pursue it any further. We issued that public statement. We looked at it. We talked to our lawyers. In the fullness of time, it seemed that we had made our point, and we moved on.

GROSS: You know, you mentioned receiving threatening communications directed mostly at reporters. And you write about reporters who've been doxed or threatened with being doxed. That's when your private information - where you live, your Social Security number, your phone number - are made public in social media and makes you very vulnerable to, you know, identity theft to, you know, personal attack. And I'm wondering if there's any vulnerability on the part of the people who make those threats or even vulnerability of the president. Like, if the president keeps calling the press the enemy of the people and if that leads to threats of violence against reporters or to the sending of, you know, bombs to CNN, does the president have any liability there? At any point, does it cross the line of shouting fire in a crowded theater and, you know, violating First Amendment because it's dangerous?

MCCRAW: It is. But I think that the same First Amendment that protects The New York Times protects much of the communication out there that we don't like. Hate speech that we're not particularly crazy about, the abstract threat that we find chilling most times enjoys First Amendment protection. I think that there are those communications that cross the line, and the people who make them I think should be and have been prosecuted. But by and large, uncivil communication, opinionated communication is going to be protected. And as hard as that is to stomach much of the time, as scary as it is at times, it is the First Amendment world that we live in.

GROSS: Well, David McCraw, thank you so much for talking with us.

MCCRAW: Thank you.

GROSS: David McCraw is deputy general counsel for The New York Times and author of the new memoir "Truth In Our Times: Inside The Fight For Press Freedom In The Age Of Alternative Facts." After we take a short break, jazz critic Kevin Whitehead will review the new album by trumpeter Steph Richards. This is FRESH AIR.

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