David Enrich is the Business Investigations Editor of the New York Times, the former Enterprise Editor of the Wall Street Journal and, no surprise, a very good journalist. In 2020 he wrote an excellent book on Deutsche Bank called Dark Towers that I highly recommend. And then, in 2022, he turned his lens to the law and published: Servants of the Damned about the powerful Washington DC law firms, in particular Jones Day.

He’s got a new book out this week, Murder The Truth that I’ve been diving into and it may be the best yet. It chronicles the fascinating trajectory of the First Amendment in this country and the dangerous direction it’s headed, under attack from the right, without most of us realizing it.

Since the 1964 Supreme Court decision in the case of the New York Times Co vs Sullivan, American journalists have enjoyed greater freedom than journalists almost anywhere else in the world, including in my native Britain. That’s because the court, then under the leadership of Earl Warren ruled that if a journalist was writing about a public official, that person would have to prove “actual malice” in order to establish libel. In other words, if you were a public figure you couldn’t successfully sue for defamation if the journalist had simply gotten their facts wrong. You had to prove they showed a “reckless disregard’ for the facts – ie that they knew their facts were wrong and published them anyway.

This led to a much higher burden of proof for US plaintiffs who are bold-faced names, institutions, and private individuals, not simply public officials – than elsewhere in the world.

It’s true that the Warren Court was possibly the most liberal court in US history. But, interestingly, the conservative legal scholar, Robert Bork, who will be familiar to listeners of my Audible series: Pipeline to Power – was a big supporter of the Sullivan decision and the way the Warren court interpreted the First Amendment.

Enrich chronicles the narrative of how since 2016 a number of high profile personalities on the right, including Peter Thiel, Sarah Palin and – of course – Donald Trump, as well big corporations, and others, have brought litigation that may well end up with a reversal of the Sullivan decision.

It’s happened piece-meal and, for the most part, in the shadows. Enrich argues that recent opinions penned byJustices Clarence Thomas and Neil Gorsuch could well portend the end of the free speech protections afforded by Sullivan – and why this matters.

Watch the conversation at Vicky Ward Investigates