During World War I, Judge Learned Hand became a notable figure for his articulate and impactful defense of free speech. However, as years went by, he grew concerned that Americans were leaning too heavily on the legal system and lawyers. In 1944, while speaking to a massive crowd in Central Park on “I am an American Day,” a celebration of U.S. citizenship, he emphasized his belief:
“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there it needs no constitution, no law, no court to save it.”
His profound speech came to my mind as I observed several leading American media and tech firms bending over backwards for President Donald Trump, hastily doling out vast settlements to resolve claims one would expect them to dispute. These companies, granted enviable First Amendment rights by global standards, now seem reluctant to defend these rights, which is alarming and disheartening.
The unfortunate sight of prominent media corporations succumbing to Trump is becoming so routine it almost matches a television schedule. Back in December, ABC News decided to settle for $15 million when Trump accused its anchor, George Stephanopoulos, of defamation on his show by wrongly stating Trump was found liable for rape rather than sexual abuse. The settlement not only covered Trump’s legal expenses but also allocated funds for his future presidential foundation and museum.
The rationale behind ABC’s settlement remains puzzling. Although Stephanopoulos’s statement was incorrect, it wouldn’t typically warrant legal liability. Given the First Amendment’s substantial protection for criticism of public figures, ABC might have had ended up on the winning side in court. Some speculate that undisclosed discovery materials may have weakened ABC’s standing, but from an outsider’s perspective, this payment seems more like conceding defeat.
Meta’s subsequent settlement with Trump a few weeks after ABC’s was even more questionable. Trump claimed his First Amendment rights were violated when his Facebook and Instagram accounts were suspended following the January 6 Capitol riot. Though his claim was legally baseless—platform content moderation being a protected form of editorial judgment—Meta agreed to a $25 million settlement, also earmarking funds for Trump’s presidential library.
Then there’s Paramount, reportedly mulling over settling a lawsuit in which Trump accuses “60 Minutes” of deceitful practices by misleadingly editing an interview with Kamala Harris. This suit, claiming $10 billion in damages, lacks substantial backing for any purported harm to Trump, reflecting its triviality.
Paramount likely isn’t concerned about the outcome. It appears the company fears opposing Trump as it seeks his support for a significant merger with Skydance. CBS News has even agreed to the FCC’s demand for unedited interview recordings, a move Democrats at the FCC called “retaliatory.” Resistance might have been possible; only half a year ago, CBS might have pushed back, at least challenging the demand in court.
Trump captured the current atmosphere aptly in December, stating, “In the first term, everyone was fighting me,” whereas “in this term, everybody wants to be my friend.” Many top media entities apparently find it commercially unwise to challenge the president, even if it means relinquishing their First Amendment rights. Only time will tell if their apparent tributes yield the expected benefits.
Every settlement further erodes the democratic freedoms crucial to media outlets. They set informal precedents that influence public and judicial perceptions about press freedom. These settlements also tarnish the media’s prestige and credibility, blemishing legacies like CBS’s esteemed history of impactful journalism during and beyond World War II. Its bold exposure of Senator McCarthy, led by Edward R. Murrow, is legendary. How will today’s CBS be viewed at this era’s end?
Additionally, each settlement intensifies collective pressure on other media firms to settle disputes with Trump or ingratiate themselves with him. Pre-election, editorial endorsements favoring Harris over Trump were reportedly quashed by owners of The Washington Post and The Los Angeles Times. Post-election, Meta and other major platforms made significant donations to Trump’s inauguration fund. Courage is often called contagious, but fearfulness and timidness can spread too, potentially leading news organizations not to protest presidential accusations of journalistic recklessness.
Judge Hand’s revered defense of free speech during World War I revolved around a radical magazine suppressed by New York’s postmaster for potentially hindering the war effort. Hand criticized such governmental criticism suppression and championed dissent as a “hard-bought acquisition in the fight for freedom.” His mercantile terminology might resonate with media elites now tempted to prioritize profit over liberty—a reminder that the cost of freedom involves continuous effort and courage, as echoed decades later in Hand’s Spirit of Liberty speech.
The First Amendment consists merely of words on paper. Fulfilling its promise across generations relies on a civic courage that currently feels distressingly scarce.
Jameel Jaffer serves as the executive director at Columbia University’s Knight First Amendment Institute.
