Recently, I revealed in a piece for Chronicles that David Enrich, an investigative reporter for The New York Times, had regrets about things he wrote about me and Supreme Court Justice Brett Kavanaugh in 2018 during his newspaper’s coverage of Kavanaugh’s nomination hearings.

Enrich, like the rest of the Stasi media, willingly participated in the media’s attempt to destroy us in order to prevent Brett from being seated on the Court. Brett and I had gone to high school together and because I had written a book about my wild youth, Brett’s accusers pounced on the connection.

“I’ve spent a lot of time thinking about my role in the Kavanaugh coverage,” Enrich wrote to me, “and I would be happy to talk to you about it at some point. For now, I will just say that I have learned some lessons and would probably do certain things differently next time.”

Well, yes. In choosing to write in the way that he did about our teenaged drinking sprees, beach trips, and slang, he ended up humiliating and traumatizing innocent people—private citizens, not running for anything and certainly not seeking attention. Many of those named were just people I had casually known in high school. It was despicable.

That is why, when confronted all these years later, even Enrich had to admit  his “coverage” was malicious and awful. Even so, his new book, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, argues that “journalists” should be able to write whatever they want about anybody without repercussions. Journalists have been getting away with it for decades because of the ridiculously broad protections the press has enjoyed since the famous New York Times v. Sullivan case from 1964.

It’s a pretty amazing full circle. Over the last 60 years of weakening libel laws, America’s courts have allowed the media to destroy innocent people. Those rulings are now championed by David Enrich of The New York Times.

He is the same reporter who just recently apologized for the very destruction the court rulings he defends allowed him to perpetrate. David Enrich may be the best witness against the arguments of David Enrich.

The Sullivan case came about when The New York Times published a political advertisement critical of Southern opposition to desegregation. The ad condemned the Montgomery, Alabama police force. It also contained inaccuracies, which led L. B. Sullivan, one of Montgomery’s city commissioners, to sue the Times for libel.

Sullivan prevailed in the trial court and, on appeal, in the Supreme Court of Alabama. The Times then appealed to the U.S. Supreme Court. In an opinion authored by Justice William Brennan, the Supreme Court reversed the lower court’s decisions. Brennan introduced the idea that in order to be guilty of libel a media outlet had to be guilty of “actual malice.”  As legal scholar Carson Holloway describes it: 

“Actual malice” here carried a specific, technical meaning—that the allegedly defamatory claims had been published with knowledge of their falsity, or at least with reckless disregard for their truth or falsity. To win damages in a libel action, the Court held, plaintiffs who were public officials would have to show not only that they had been defamed by a false publication, but also that the falsehood had been published knowingly or recklessly. This standard gave the press (and others) what the Court believed was the constitutionally required breathing room to discuss vital public issues without undue fear of incurring large damage awards for erroneous publications—with the admitted side effect that some public officials who had actually suffered reputational damage from false reports would be unable to secure legal redress for their injuries.

What happened over the ensuing decades, and what David Enrich defends in Murder the Truth, was the iniquitous expansion of the idea behind Sullivan to the point where even innocent and anonymous people can be victimized by the press without consequences.

In Garrison v. Louisiana, the Court (again in an opinion written by Justice Brennan) ruled that the actual malice test should be applied not only to civil but also to criminal libel cases. The Court held that, in Carson Holloway’s phrase, “the element of ‘reckless disregard’ for the truth had to be understood as something far worse (and more difficult to prove) than ordinary negligence.” 

Holloway added that, “as new cases came along, the Court also expanded the reach of the doctrine with regard to the kinds of litigants to whom it would apply.” By 1967, the justices had found (in Curtis Publishing Company v. Butts and Associated Press v. Walker) that the actual malice rule should apply not only to libel cases brought by public officials but also to those brought by public figures—entertainers, professional athletes, musicians, business leaders, or university presidents. “Many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions,” Chief Justice Earl Warren wrote in that case. “Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of ‘public officials.’”

Then in 1974 came Gertz v. Robert Welch Inc. In that case, the Supreme Court further broadened the ever-expanding group who could be maligned by the media to include “limited purpose public figures.”

In Murder the Truth, David Enrich describes limited purpose public figures this way:

These were people who weren’t necessarily famous but had injected themselves into a public controversy by, for example, becoming a prominent advocate for or against abortion rights. The five-to-four decision even acknowledged that in rare cases, someone might fall under this umbrella involuntarily. (Think of an air traffic controller on duty when a plane crashed.) The logic was the same: people needed to be able to investigate and write about those in the public sphere, even if they accidentally got a fact wrong. This was hardly the end of libel.

Mix all of this together and you create the madness that I faced at the hands of the media in 2018. At one point when reporters were going through my car, hounding my elderly mother, and harassing my former high school girlfriends, I tried to protest that I was not a public figure and that I was not running for anything. I’ll never forget the sad look on the face of a friend of mine who informed me that I had in fact become a public figure – because the media had made me one. My “limited purpose” was to help them to destroy my high school friend.

I’m not a lawyer, but the logic of what is happening as David Enrich launches Murder the Truth is pretty incredible. Enrich just expressed regret for his reporting on me and Brett Kavanaugh—reporting that was ridiculous, false, and unconscionable. His recklessness, which by his own admission is something he wants to avoid in the future, was facilitated by the very same court decisions he defends in his new book.