Washington Lawyer - November/December 2019 - 41

WORTH READING
This external standard pertains to exceptional
situations. Nonetheless, other readers, too,
might ruminate that "some kind of external
standard" recalls public discourse or even
natural law's positing of an elusive natural
order of things to which free humans should
adhere. The concept underscores that for both

Mill and Sunstein, public deliberations are not
absent from the picture. This makes good sense.
For while On Freedom is a fine contribution
focusing tightly on choice architecture and
navigability, understanding how freedom's
fundamentals come together will continue
as a multifaceted intellectual exercise, so long

as we genuinely live in a great, and tolerant,
workshop of democracy.

Rich Blaustein is a freelance science, environmental, and legal journalist with a background
in environmental law.

SEARCHING FOR TRUTH
in the Age of New Media
Review by Ronald Goldfarb

non-experts the laws of libel since the celebrated New York Times v. Sullivan case in 1964
(defining when truth is and isn't a defense).
He compares past decades to the new, more
reckless era of social media - Twitter,
Instagram, Facebook, and WikiLeaks. The law
must strike a balance between responsibility
and democracy in a new era - between "facts"
and "fake facts" or "alternative facts" - and the
dilemma is especially troublesome in a time of
internet anonymity. The fight now is "about the
very nature of truth," McCraw claims.

Courtesy of St. Martin's Press

McCraw calls libel lawsuits "tools of oppression,"
where only the powerful like the New York Times
has the power to fight back. As a result, more
cases have been filed recently, and the reputation of the press has suffered from constant
attacks that seek to delegitimize news organizations. "My role was to take on anyone who was
trying to silence the truth or wrap the government in secrecy," McCraw writes.

n Truth in Our Times, David E.
McCraw, deputy general counsel
for the New York Times, tells the story
of what he calls the "inside fight for
press freedom in the age of alternative facts." McCraw is an experienced
libel lawyer, Freedom of Information
Act (FOIA) litigator, media insider,
and law school lecturer.
In addition to his impressive credentials,
McCraw has a wry storytelling technique that
enlivens the details of recent media law battles.
He also manages to summarize and explain for

A large portion of the book deals with the 2016
presidential election and the current administration's criticism of journalists. McCraw writes,
"The last campaign was a dizzying season for the
wizards of fake news." However, to be fair, all presidents complain about negative coverage and rail
against press leaks. I represented one New York
Times writer whose blockbuster story was held up
for a long while as the White House and the paper
fought over the release of the story (which later
won a Pulitzer Prize). Ultimately, the press decided
what got published, but the respectful battle at
the highest levels came first, if slowly, which is not
how WikiLeaks' Julian Assange and other internet
"publishers" operate. Twitter is not a responsible
publisher, McCraw argues, but a "perpetual open
microphone for the world."
McCraw also expounds on the over-classification of government records and the failure
of the FOIA. He notes that the United States

spends billions of dollars running the classification system that experts have shown does
not properly label government information 50
percent to 90 percent of the time. Secrecy for
its own sake should be avoided, wrote the
late Justice Potter Stewart in the Pentagon
Papers case. A truly effective system would
maximize disclosure to preserve its credibility.
Reminding readers that 9/11 changed the
world of secrecy and revived espionage investigations, McCraw shares behind-the-scenes
stories contrasting Assange and Edward
Snowden. In addition, McCraw offers "MeToo"
stories about Harvey Weinstein and Bill
O'Reilly, and about his tense and dramatic
negotiations with hostile foreign governments over captured journalists.
There is another reason to read this book
beyond its felicitous writing and interesting
views. McCraw has written a love letter celebrating freedom of the press, which demands
a watchful public. Our democracy's system of
checks and balances requires more than the
three branches of government's rhythmic
dynamic. The mainstream media and the
evolving media will require nuanced reforms
that balance the endless tug between the liberating power of worldwide information dissemination and the corresponding responsibility
of those who participate in that process.
Back in 1787, Thomas Jefferson wrote: "And
were it left to me to decide whether we should
have a government without newspapers or
newspapers without a government, I should
not hesitate a moment to prefer the latter." Let's
hope events don't force us to choose.

Ronald Goldfarb is an attorney, author, and literary
agent in Washington, D.C. Read more of his work at
www.ronaldgoldfarb.com.

NOVEMBER/DECEMBER 2019

WASHINGTON LAWYER 41

http://www.ronaldgoldfarb.com

Washington Lawyer - November/December 2019

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