Trump’s $15m settlement with ABC shook the First Amendment’s foundation. It’s just the beginning

“Many in free press circles are holding their breath,” one First Amendment expert tells Justin Baragona. “There is concern that we are embarking on some scary times.”

Legal experts and press organizations are warning that ABC News settling a defamation case with Donald Trump will have a “chilling effect” on the media going forward, while the president-elect seems determined to prove them right by unleashing more legal threats and lawsuits against news outlets and reporters.

Meanwhile, journalists are lighting into ABC’s willingness to “obey in advance” and “bend the knee” to Trump, claiming that the network and its corporate parent Walt Disney showed the incoming president just how to silence reporters.

The president-elect and his allies, who have spent the past few years labeling the press the “enemy of the people,” are feeling particularly emboldened following ABC News’ capitulation. The incoming president has since filed another defamation lawsuit over a pre-election poll that was unfavorable to him, and his former chief strategist Steve Bannon is calling for the “incarceration” of media figures.

Many of Trump’s nominees to fill out his administration have also suggested that they will punish media outlets that are overly critical of the president-elect. Brendan Carr, Trump’s appointee to lead the FCC, has hinted that he will consider revoking the licenses of TV news broadcasters he feels are overtly unfair to Trump. Kash Patel, the nominee to lead the FBI, has published an enemies list and boasted that he’d “come after” the media.

As for the merits of Trump’s defamation claims against ABC News, First Amendment experts who spoke with The Independent were split on whether the president-elect had a strong case, which centered on ABC News anchor George Stephanopoulos claiming multiple times on air that Trump was found “liable for rape” in the E. Jean Carroll case.

At the same time, they largely agreed that the quick settlement of the case, which was scheduled to go to trial in April, likely emboldened the president-elect to continue to use the court system to go after the free press.

Months after George Stephanopoulos declared that he wouldn’t be “cowed out of doing my job” after Donald Trump sued him and the network for defamation, the network surprisingly announced Saturday that it had reached a settlement that would pay $15 million to Trump’s presidential library and an additional $1 million to his lawyers. The network also issued a statement of regret over Stephanopoulos’ comments.

Donald Trump settled with ABC News on Saturday for $15m, with the network also agreeing to pay attorneys’ fees. It has sent shockwaves through newsrooms (Getty Images)

At the center of the lawsuit was Stephanopoulos’ interview with Rep. Nancy Mace (R-SC) in March on This Week. The anchor got into a heated back-and-forth with the South Carolina congresswoman over her support for Trump despite her being a sexual assault survivor, repeatedly stating that Trump had been found “liable for rape by a jury.”

Stephanopoulos was referring to the defamation case that Trump lost against Carroll last year. While Trump has denied all wrongdoing in the case, a jury found that Trump had defamed Carrol and was liable for battery. The jury did not find that Trump raped her under the New York criminal law definition, which involves vaginal penetration.

The judge in the Carroll case said the distinction was essentially a semantic one, as the jury contended that Trump assaulted her by penetrating her with his hand. As Stephanopoulos referenced the judge’s opinion in the Mace interview, ABC argued for the Trump lawsuit to be dismissed because the anchor’s statements were “substantially” true.

Florida federal Judge Cecilia M. Altonaga, who was overseeing the Trump lawsuit, rejected ABC’s arguments, saying she was “not persuaded that such broad latitude exists” and that the state’s “fair reporting privilege” did not “protect media where the omission of important context renders a report misleading.”

“Under U.S. Constitutional law precedents dating back to 1964, this case should have failed. Public figures and public officials should never be allowed to win such cases when there is substantial truth to the defamatory statements,” John Watson, associate professor of journalism at American University, told The Independent about Altonaga’s ruling. “The judge’s decision on that crucial point is baffling and disheartening.”

When the suit was set for trial, ABC News was subjected to pre-trial discovery, which would give the Trump legal team access to Stephanopoulos’ work emails, other communications and relevant materials from the network. Earlier this month, the judge ruled that ABC needed to hand over all remaining documents to Trump’s lawyers. The judge also said that the president-elect and the ABC News anchor needed to be deposed soon.

Days after the judge’s ruling, ABC News reached a settlement and issued an apology to Trump.

“The case against ABC would have been a close call,” Roy Gutterman, director of the Newhouse School’s Tully Center for Free Speech, said. “George Stephanopoulos made and repeated a mistake during that interview.  Whether he knew he was false or really, really, really should have known better would have been crucial to the outcome had they not settled.  I think the current legal standards for a public official and public figure would have made the case tough to win.”

Joseph Russomanno, professor emeritus of journalism and mass communication at Arizona State University’s Cronkite School, told The Independent that Trump’s lawsuit had “the makings of a strong case.” He added that while “some may want to suggest that hairs were being split in this case, the fact is that ABC’s George Stephanopoulos falsely labeled Trump a rapist on the air.”

The Independent reached out to ABC News for comment.

Trump poses with ABC New anchor George Stephanopoulos ahead of a town hall event at the National Constitution Center in Philadelphia on September 15, 2020. It was Stephanopoulos’s comments on air about Trump that landed ABC in a lawsuit (AFP via Getty Images)

Considering that Trump is already enjoying unprecedented acquiescence from the media – the Washington Post and Los Angeles Times pulled their Kamala Harris endorsements while multiple media moguls have contributed to Trump’s inauguration fund – ABC’s concession to Trump was met with widespread backlash from journalists.

“The Disney-owned news outlet broke Rule 1 of resisting autocracy: ‘Don’t obey in advance,’” former New York Times public editor Margaret Sullivan noted.

“ABC News will never live down this capitulation. Never,” Washington Post columnist Erik Wemple observed.

“ABC News didn’t just cave to Trump,” media columnist Parker Molloy wrote. “They helped write the playbook for crushing press freedom. The question now is: who’s next?”

A former ABC News staffer also told The Independent that they were “crestfallen to see ABC capitulate to Trump like this,” adding that the network has “a ton of amazing journalists and this decision to settle is so demoralizing.”

At the same time, an ABC insider said that many within the network felt that ABC didn’t have strong legal grounds to keep fighting the case, especially after the judge rejected the network’s argument and opened the door for a jury finding Stephanopoulos committed “actual malice” towards the president-elect.

“But there will certainly be fear within media outlets with this spate of new lawsuits and threats to sue that could have a chilling effect on how Trump is covered,” the insider added.

Speaking to The Independent on the condition of anonymity, a veteran media executive noted that a large part of the equation is that much of the mainstream media is now at the behest of “corporate masters who are going to want to be friendly with Trump” now that he’s returning to the White House.

“I think it’s scary for CNN and MSNBC. They’re all hanging by a thread,” he said, adding: “I think this is a scary new era for everybody.”

Besides the Stephanopoulos interview, Trump had complained about ABC News throughout the campaign. He groused about the network’s “terrible” treatment of him during his presidential debate with Harris, which saw moderators Linsey Davis and David Muir repeatedly fact-check him. Because of this and the close friendship between Harris and Disney executive Dana Walden — whom ABC News has long said has no say in editorial decisions — Trump mused about revoking the network’s broadcast license.

On the other hand, it was just last week that Debra OConnell —the Disney executive that took over for Kim Godwin as ABC News chief — was seen dining with Trump’s soon-to-be chief of staff Susie Wiles at Mar-a-Lago.

Trump has now launched other attacks on the media and new lawsuits in the wake of his $15 million settlement with ABC (Getty Images)

Crowing about his preemptive victory over ABC News and Stephanopoulos, who quietly deleted his X (formerly Twitter) account this week, Trump declared that more lawsuits against outlets and media figures he had grievances with were coming down the pike. He also reiterated that he was suing CBS News for $10 billion over the way 60 Minutes edited its interview with Kamala Harris, a lawsuit that legal experts call “frivoulous and dangerous.”

“I think you have to do it because they’re very dishonest. We need a great media. We need a fair media,” he exclaimed. “We have to straighten out the press. Our press is very corrupt, almost as corrupt as our elections.”

On Monday evening, he sued the Des Moines Register and its top pollster, Ann Selzer, over Selzer’s statewide poll shockingly showing Kamala Harris with a slight lead against Trump in Iowa. The poll ended up being wildly inaccurate as Trump easily carried the state. So now the president-elect is accusing the newspaper and Selzer of “brazen election interference” and attempting to fraudulently boost his Democratic opponent in the final days of the campaign.

“This absurd lawsuit is a direct assault on the First Amendment,” Foundation for Individual Rights and Expression chief counsel Robert Corn-Revere said about the lawsuit. “Newspapers and polling firms are not engaged in ‘deceptive practices’ just because they publish stories and poll results President-elect Donald Trump doesn’t like. Getting a poll wrong is not election interference or fraud.”

Noting that the “settlement with ABC did likely embolden him,” Gutterman said “the suit against the Des Moines Register is vested in a different legal theory and this is just as troubling.” He further warned that the president-elect “has never been shy about using litigation as a weapon against critics.”

Trump’s attorneys also cited the ABC News settlement on Tuesday when they pressed the judge to move forward in the president-elect’s lawsuit against legendary journalist Bob Woodward. The case revolves around the publication of audio tapes of interviews Woodward conducted with Trump for a 2020 book.

“Since President Trump’s decisive victory resulting him being due to become the 47th President of the United States, there has been a renewed accountability among those who violated his rights over the last four years,” Trump attorney Robert Garson wrote, adding: “President Trump is hopeful that the Defendants in this case follow Mr. Stephanopoulos’ expression of contrition.”

Experts have warned about the impact the Trump-ABC settlement could have on freedom of the press and the First Amendment (Getty Images)

Besides Trump looking to use the court system to cow media outlets and journalists into compliance, he is also shaping the government to be extremely hostile to the press – especially outlets that give him adversarial coverage.

Earlier this year, the House unanimously passed a law – The Protect Reporters from Exploitative State Spying Act or PRESS Act – that would have shielded journalists from being forced by the government to reveal their confidential sources. Despite the bill having strong bipartisan support, Trump urged the Senate to kill it after he won the election.

Sen. Tom Cotton (R-AR) stepped in last week to block the legislation, arguing that the “liberal media doesn’t deserve more protections” and the act represented a threat to national security.

On top of the likely appointments of Patel and Carr in key roles, Trump’s “first buddy” Elon Musk – who owns the misinformation-riddled social media platform X – is leading an advisory committee that will recommend spending cuts in the government. Musk has already proposed slashing $535 million of funding to the Corporation for Public Broadcasting, which runs hundreds of local television and radio stations. He also wants to “defund” National Public Radio.

With the specter of expensive lawsuits and an incoming administration that is likely to be extremely hostile to the press, many in the media are signaling to Trump that they would like to play nice. And Trump has been receptive to them – while still issuing a warning.

“The media’s tamed down a little bit. They’re liking us much better now, I think,” Trump said after being namedTIME’s Person of the Year. “If they don’t, we’ll have to just take them on again, and we don’t want to do that.”

With all that being said, should the media industry be worried that press freedoms and the First Amendment will deteriorate over the next four years? Is the ABC settlement a sign of what’s ahead? The experts do seem a tad worried.

“This capitulation is to be expected when First Amendment press freedom is divorced from the press’ responsibility that makes it important enough to be included in the Constitution,” Watson said.

“Many in free press circles are holding their breath,” Gutterman stated. “There is concern that we are embarking on some scary times.”

Saying ABC’s case itself may not change the landscape of press freedom, Russomanno wanted that “there are clouds on the horizon” due to a number of factors in place.

“These include a litigious, combative President about to take office who years ago declared the news media to be the enemy of the people,” he concluded. “He is also now armed with a Supreme Court with a conservative supermajority – three of whom he installed – whose agenda may include removing the news media’s 60-year-old libel protections. That would open a very bleak era for First Amendment freedoms and the nation they serve.”