First Amendment (US Constitution)

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      Appeals Court Finds DeSantis Violated Prosecutor’s First Amendment Rights

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      Dealing a blow to Gov. Ron DeSantis of Florida, a federal court of appeals on Wednesday ruled that he had violated First Amendment protections when he suspended a progressive state prosecutor for political gain.The ruling, by the U.S. Court of Appeals for the 11th Circuit, undercut Mr. DeSantis on an episode he has made a key credential in his presidential campaign. Mr. DeSantis forced Andrew Warren, a Democratic state attorney representing the Tampa area, out of office in August 2022 after he had spoken out against Republican policies on abortion and transgender rights.On the campaign trail, Mr. DeSantis has used the suspension of Mr. Warren, who had been elected to his post twice, to illustrate his strong-arm approach to progressive public officials who push what he calls a “woke” agenda.The court on Wednesday vacated a decision from a federal judge in Tallahassee in January 2023 not to reinstate Mr. Warren, who has fought the suspension in court, arguing that it violated his First Amendment right to free speech. Now, that judge must reconsider his ruling.Testimony and records released as part of a late 2022 trial in the case revealed the extent to which the removal of Mr. Warren was motivated by a desire to bolster Mr. DeSantis’s political standing. The district court judge, Robert L. Hinkle, ruled that Mr. DeSantis did not violate Mr. Warren’s First Amendment rights when he suspended him for his own political benefit.But in its 59-page decision, a three-judge appeals court panel unanimously ruled that Mr. DeSantis did violate Mr. Warren’s First Amendment rights. The panel said Mr. DeSantis needed to prove that Mr. Warren’s performance and policies were the reason he was suspended, and not his personal views on matters such as abortion.In a statement calling the decision “an egregious encroachment on state sovereignty,” Jeremy Redfern, a spokesman for Mr. DeSantis, said the governor’s office was looking over the decision to determine next steps, which could include appealing to the larger 11th Circuit court or the U.S. Supreme Court.Mr. Warren, who has said he will not run for office again this year, said he looked forward to seeking his reinstatement in court.“This is what we’ve been fighting for from the beginning — the protection of democracy,” he said in a statement.Nicholas Nehamas More

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      Supreme Court Wary of Trademark for ‘Trump Too Small’

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      In earlier cases, the justices struck down provisions of the trademark law on First Amendment grounds. But the one at issue here seemed likely to survive.The Supreme Court, which has in recent years struck down parts of the trademark law that prohibited registration of immoral, scandalous and disparaging marks, did not appear ready on Wednesday to do the same thing in a case concerning a California lawyer’s attempt to trademark the phrase “Trump too small.”The provision at issue in the case forbids the registration of trademarks “identifying a particular living individual except by his written consent.”There seemed to be consensus among the justices that the provision was different from the ones the court had rejected in 2017 and 2019. Some said that it did not discriminate based on viewpoint, which the First Amendment generally does not allow the government to do. Others added that there is a long history of allowing people to control the use of their names in commercial settings.Some justices pressed a more fundamental objection. Noting that the lawyer, Steve Elster, could use the phrase on merchandise without trademarking it, they wondered whether the First Amendment applied at all.“The question is, is this an infringement on speech?” Justice Sonia Sotomayor said. “And the answer is no.”The contested phrase drew on a taunt from Senator Marco Rubio, Republican of Florida, during the 2016 presidential campaign. Mr. Rubio said Donald J. Trump had “small hands,” adding, “And you know what they say about guys with small hands.”Mr. Elster, in his trademark application, said that he wanted to convey the message that “some features of President Trump and his policies are diminutive.” He sought to use the phrase on the front of T-shirts with a list of Mr. Trump’s positions on the back. For instance: “Small on civil rights.”A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the trademark office to allow the registration.“As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech,” Judge Timothy B. Dyk wrote for the court.The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court.Malcolm L. Stewart, a deputy solicitor general who was presenting his 100th Supreme Court argument, said that granting Mr. Elster a trademark would allow him to forbid others from using it, diminishing the amount of the political speech the First Amendment is meant to protect.Chief Justice John G. Roberts echoed the point. “Particularly in an area of political expression,” he said, “that really cuts off a lot of expression other people might regard as important infringement on their First Amendment rights.”Justice Elena Kagan asked Jonathan E. Taylor, a lawyer for Mr. Elster, to identify a precedent in which the court had struck down a law conferring a government benefit like trademark registration that did not involve viewpoint discrimination.He replied, “I can’t point you to a case that’s precisely on all fours.”Justice Kagan responded that she could cite many decisions supporting the opposite proposition, naming a half-dozen.Commentary on the size of Mr. Trump’s hands has a long history. In the 1980s, the satirical magazine Spy needled Mr. Trump, then a New York City real estate developer, with the recurring epithet “short-fingered vulgarian.”In 2016, during a presidential debate, Mr. Trump addressed Mr. Rubio’s critique.“Look at those hands, are they small hands?” Mr. Trump said, raising them. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”If the Supreme Court upholds the provision challenged in the new case, it will be the end of a trend.In 2017, a unanimous eight-justice court struck down a different provision, one forbidding marks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”The decision, Matal v. Tam, concerned an Asian American dance-rock band called the Slants. The court split 4 to 4 in much of its reasoning, but all the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints.In 2019, the court rejected a provision barring the registration of “immoral” or “scandalous” trademarks.That case concerned a line of clothing sold under the brand name FUCT. When the case was argued, Mr. Stewart told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”Justice Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”If the justices were divided in the new case, Vidal v. Elster, No. 22-704, it was over the rationale for ruling to uphold the law before them, not on the outcome.Justice Samuel A. Alito Jr., for instance, asked Mr. Stewart for a theory that would allow him to vote for the government without rejecting a position he had staked out in an earlier case.The justice added that the task was not pressing. “I mean,” he said, “you don’t need my vote to win your case.” More

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      Supreme Court Weighs When Officials May Block Citizens on Social Media

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      The justices struggled to distinguish private conduct, which is not subject to the First Amendment, from state action, which is.The Supreme Court worked hard in a pair of arguments on Tuesday to find a clear constitutional line separating elected officials’ purely private social media accounts from ones that reflect government actions and are subject to the First Amendment. After three hours, though, it was not clear that a majority of the justices had settled on a clear test.The question in the two cases was when the Constitution limits officials’ ability to block users from their accounts. The answer turned on whether the officials’ use of the accounts amounted to “state action,” which is governed by the First Amendment, or private activity, which is not.That same question had seemed headed to the Supreme Court after the federal appeals court in New York ruled in 2019 that President Donald J. Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints.Had the account been private, the court said, Mr. Trump could have blocked whomever he wanted. But since he used the account as a government official, he was subject to the First Amendment.After Mr. Trump lost the 2020 election, the Supreme Court vacated the appeals court’s ruling as moot.Justice Elena Kagan said on Tuesday that Mr. Trump’s Twitter feed was in an important sense official and therefore subject to the First Amendment.“I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account,” Justice Kagan said. “It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.”Hashim M. Mooppan, a lawyer for two school board officials, said none of that implicated the First Amendment.“President Trump could have done the same thing from Mar-a-Lago or a campaign rally,” Mr. Mooppan said. “If he gave every one of those speeches at his personal residence, it wouldn’t somehow convert his residence into government property.”The cases argued Tuesday were the first of several this term in which the Supreme Court will consider how the First Amendment applies to social media companies. The court will hear arguments next year on both whether states may prohibit large social media companies from removing posts based on the views they express and whether Biden administration officials may contact social media platforms to combat what they say is misinformation.The first case argued Tuesday concerned the Facebook and Twitter accounts of two members of the Poway Unified School District in California, Michelle O’Connor-Ratcliff and T.J. Zane. They used the accounts, created during their campaigns, to communicate with their constituents about activities of the school board, invite them to public meetings, ask for comments on the board’s activities and discuss safety issues in the schools.Two parents, Christopher and Kimberly Garnier, frequently posted lengthy and repetitive critical comments, and the officials eventually blocked them. The parents sued, and lower courts ruled in their favor.“When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them,” Judge Marsha S. Berzon wrote for a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco.Mr. Mooppan said the accounts were personal and were created and maintained without any involvement by the district.Justice Brett M. Kavanaugh pressed Mr. Mooppan on what it would take to make the accounts official and so subject to the First Amendment. “Is announcing rules state action?” the justice asked.Mr. Mooppan said it would be if the announcement was not available elsewhere. He gave a more equivocal answer to a question about notifications of school closures. But he said a general public safety reminder was not state action.Pamela S. Karlan, a lawyer for the parents, said Ms. O’Connor-Ratcliff’s Facebook feed was almost entirely official. “Of the hundreds of posts, I found only three that were truly non-job-related,” Ms. Karlan said, adding, “I defy anyone to look at that and think this wasn’t an official website.”The second case, Lindke v. Freed, No. 22-611, concerned a Facebook account maintained by James R. Freed, the city manager of Port Huron, Mich. He used it to comment on a variety of subjects, some personal and some official. Among the latter were descriptions of the city’s responses to the coronavirus pandemic.The posts prompted critical responses from a resident, Kevin Lindke, whom Mr. Freed eventually blocked. Mr. Lindke sued and lost. Judge Amul R. Thapar, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said Mr. Freed’s Facebook account was personal, meaning that the First Amendment had no role to play.“Freed did not operate his page to fulfill any actual or apparent duty of his office,” Judge Thapar wrote. “And he did not use his governmental authority to maintain it. Thus, he was acting in his personal capacity — and there was no state action.”Justice Kagan told Allon Kedem, a lawyer for Mr. Lindke, that Mr. Freed’s page did not look particularly official.“There are a lot of baby pictures and dog pictures and obviously personal stuff,” she said. “And intermingled with that there is, as you say, communication with constituents about important matters. But it’s hard to look at this page as a whole, unlike the one in the last case, and not think that surely this could not be the official communications channel.” More

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      How Free Speech and Willful Blindness Will Play Out in the Trump Prosecution

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      More than a decade ago, a divided Supreme Court ruled in United States v. Alvarez that an elected member of a district water board in California could not be prosecuted criminally for lying to an audience about winning the Medal of Honor. The court ruled that efforts to criminalize mere lying, without linking the lie to an attempt to gain a material advantage, posed an unacceptable threat to robust exercise of First Amendment rights.Given that decision, Jack Smith, the special prosecutor investigating former President Donald Trump, was right in concluding that Mr. Trump has a First Amendment right to lie to the general public.So, where’s the legal beef in the indictment arising from the events that culminated in the storming of the Capitol brought by Mr. Smith against Mr. Trump? It’s in the fact that Mr. Smith isn’t merely charging the former president with lying; he is contending that Mr. Trump lied to gain an unlawful benefit — a second term in office after voters showed him the exit. That kind of speech-related behavior falls comfortably within what the justices call “categorical exceptions” to the First Amendment like true threats, incitements, obscenity, depictions of child sexual abuse, fighting words, libel, fraud and speech incident to criminal conduct.As the court put it in 1949 in the case of Giboney v. Empire Storage and Ice Co., “it rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”That is why Mr. Smith will most likely seek to prove that the former president was engaged in “speech incident to criminal conduct” when he and his co-conspirators lied to state legislators, state election officials, gullible supporters, Justice Department lawyers and Vice President Mike Pence in an illegal effort to prevent Joe Biden from succeeding him as president. Since Mr. Trump is charged with, among other crimes, conspiracy to defraud the United States and to deprive people of the right to have their votes counted, Mr. Smith would clearly be right in arguing that the Alvarez decision doesn’t apply.Characterizing Mr. Trump’s words as “speech incident to criminal conduct” would neatly solve Mr. Smith’s First Amendment problem, but at a substantial cost to the prosecution. To win a conviction, the government must persuade 12 jurors to peer inside Mr. Trump’s head and find beyond a reasonable doubt that he knew he was lying when he claimed to be the winner of the 2020 election. If Mr. Trump actually believed his false assertions, his speech was not “incident to criminal conduct.”How can Mr. Smith persuade 12 jurors that no reasonable doubt exists that Mr. Trump knew he was lying? The prosecution will, no doubt, barrage the jury with reams of testimony showing that the former president was repeatedly told by every reputable adviser and administration official that no credible evidence of widespread electoral fraud existed, and that Mr. Pence had no choice but to certify Mr. Biden as the winner.But there also will likely be evidence that fervent supporters of Mr. Trump’s efforts fed his narcissism with bizarre false tales of result-changing electoral fraud, and frivolous legal theories justifying interference with Mr. Biden’s certification as president-elect. Those supporters could include Rudy Giuliani; Sidney Powell, a lawyer and purveyor of wild conspiracy theories; Jeffrey Clark, the acting head of the Justice Department’s civil division, who apparently plotted with Mr. Trump to unseat the acting attorney general and take control of the department; and John Eastman, the lawyer who hatched the plan that Mr. Pence refused to follow to keep Mr. Trump in power.Maybe Mr. Trump himself will swear to his good faith belief that he won. With all that conflicting testimony, how is a conscientious juror to decide for sure what was really going on inside his head?The answer lies in the Supreme Court’s doctrine of “willful blindness.” A dozen years ago, in the case of Global-Tech Appliances v. SEB, Justice Samuel Alito, writing for all but one justice, ruled that proof of willful blindness is the legal equivalent of proving guilty knowledge.As Justice Alito explained it: “Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.”In other words, when a defendant, like Mr. Trump, is on notice of the potential likelihood of an inconvenient fact (Mr. Biden’s legitimate victory), and closes his eyes to overwhelming evidence of that fact, the “willfully blind” defendant is just as guilty as if he actually knew the fact. While this argument is not a slam dunk, there’s an excellent chance that 12 jurors will find, beyond a reasonable doubt, that Mr. Trump hid from the truth by adopting willful blindness.Burt Neuborne is a professor emeritus at New York University Law School, where he was the founding legal director of the Brennan Center for Justice. He was the national legal director of the American Civil Liberties Union from 1981 to 1986.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Let’s Have a Face-Off on Trump’s Indictment

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      The latest Trump indictment is much more complicated than the first two Trump indictments and probably any indictment that would come out of Fulton County, Ga. It attacks a scheme that played out across several weeks, in several states, involving dozens of others, including Trump-allied activists, those cited as co-conspirators and G.O.P. hacks who tried to overturn the 2020 election in state after state.I thought the best way to understand the challenges the prosecution and the defense would face before jurors and appellate judges would be to let both sides have their say — through me. Each side’s factual and legal arguments will play out in hundreds of pages of briefs and countless hours of trial testimony and oral advocacy. Let me cut to the chase, arguing the primary issues without, I hope, losing too much of the complexity of the case.Imagine two lawyers arguing their cases for you, a nonlawyer:Prosecution: Look, I know the indictment is long — and the trial may well last for weeks — but the elevator pitch is simple. Donald Trump conspired with a number of other individuals to overturn an election that he knew he lost. That scheme included a number of elements, from deliberately lying to state legislators to defraud them into altering the results to orchestrating a fake elector scheme that cast sham Electoral College votes to threatening a state official to help Trump “find” the votes necessary to change the outcome in Georgia.Defense: Sure, that all sounds compelling, but on closer examination, the case collapses. Let’s just start with the word “knew.” You’re going to present evidence that a number of administration officials and others rendered an opinion that the election was fair and that Joe Biden won. We’re going to present evidence that Trump received an avalanche of legal counsel to the contrary. He heard from lawyer after lawyer who told him that there may well have been decisive amounts of fraud in key swing states. Trump heard from two sets of lawyers who disagreed with each other, and he decided to follow the advice of one team of attorneys over the other. Following bad legal advice shouldn’t land anyone in jail.And you well know that each and every statute in your indictment requires a showing of criminal intent. For example, your most attention-grabbing count — 18 U.S.C. Section 241 — which protects the right to vote from criminal conspiracies, requires proving my client possessed “the intent to have false votes cast.” He intended for electors to cast true votes, in his favor.You also know that the viability of two other counts — obstruction of an official proceeding and conspiracy to obstruct an official proceeding — “hangs on by a thread,” in the words of Lawfare’s Saraphin Dhanani. The statute itself is poorly written and may not even apply to Trump’s conduct, and the intent requirement may be more strenuous than you believe. After all, in an appeals court ruling upholding a verdict against a Jan. 6 defendant, Judge Justin Walker wrote in his concurrence that to prove corrupt intent, you don’t just have to prove a defendant knew he was obtaining an unlawful benefit but also that obtaining that unlawful benefit was his “objective” or “purpose.”Good luck making that case. Trump’s objective was to expose fraud.Prosecution: The people you call Trump’s lawyers, we call his co-conspirators. A number of the people that you say Trump relied on weren’t providing legal counsel in good faith; they were scheming right along with him to commit crimes. And you don’t have to trust my word on that. Look at court cases and bar actions. Several of Trump’s co-conspirators have been fined by courts and now face the potential loss of their law licenses because of the advice they gave.In fact, “advice” is the wrong word. Lawyers aren’t fined and disbarred for giving good-faith legal advice. But co-conspirators are punished for breaking the law.Moreover, you might fool Trump supporters, but you won’t fool the jury. Proving intent is not nearly as difficult as you’re telling the public. Defendants lie about their intentions all the time, and juries are fully capable of seeing through those lies. We’re going to show the jury that every credible official gave Trump the same advice, and we’re going to show that Trump thought at least some of his allies’ advice was “crazy” and that he thought Mike Pence was “too honest.” Cassidy Hutchinson told the House Jan. 6 committee that Trump told his chief of staff, Mark Meadows, something like, “I don’t want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don’t want people to know that we lost.”The man wasn’t trying to expose fraud. He was committing fraud.Defense: You believe that Trump told Pence he was too honest? Or that he said Sidney Powell’s case was crazy? Your witnesses are lying. He never said Pence was too honest.Prosecution: So you’re telling me that Trump is going to take the stand and deny those statements to the jury? And then I get to cross-examine him?Defense: I’ll get back to you on that.Prosecution: And don’t get me started on that First Amendment defense I’ve watched you make on Fox News. First-year law students learn, as a former federal prosecutor told The Times, “there is no First Amendment privilege to commit crimes just because you did it by speaking.” Look at the indictment again. We acknowledge that Trump had the right to challenge the election and to file all those absurd lawsuits. We’re not indicting him for any of that. We’re not even indicting him simply for lying. We know that politicians have lied about elections practically since the founding of this country. We’re indicting him for entering into conspiracies, and we both know there is no First Amendment privilege to conspire to cast false electoral votes. Courts have heard cases involving fraud and conspiracies against rights — including voting rights — for decades, and the First Amendment doesn’t shield proven conspirators from criminal liability.Defense: So we’re talking about court precedents now, are we? The key precedents you cite are old. The most important Supreme Court precedent involving conspiracies against rights was written by Thurgood Marshall. Let’s just say that his jurisprudence is out of fashion with the court’s conservative majority.In reality, the Supreme Court has been busy narrowing the reach of federal fraud statutes. If you haven’t read National Review’s editorial about the case, I’d urge you to read it now. Fraud statutes are designed to prevent citizens from swindling the government out of money or tangible property. The obstruction statute is designed to stop witness tampering or destruction of evidence, not to stop litigants from making bad legal arguments about election fraud. And the conspiracy-against-rights count applies a Reconstruction-era statute that was designed to, as National Review argues, “punish violent intimidation and forcible attacks” against Black Americans who tried to vote.In other words, even if you prove the facts of your case, the statutes just don’t apply.Prosecution: Yes, I’ve read the National Review editorial, but might I direct you to the former prosecutor Ken White’s comprehensive response? The bottom line is that you’re describing what you want the law to be, not what the law is. For example, your arguments about the fraud count don’t apply to the actual fraud statute we charged. Moreover, National Review’s interpretation of the law conflicts with court precedent that’s more than a century old.In 1910 the court wrote that the definition of a conspiracy to defraud the United States “is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.”I know you don’t think that Section 1512, the obstruction statute, applies to this case, but the United States Court of Appeals for the D.C. Circuit upheld our broader interpretation just this April — in a case you already cited, by the way. You’re banking on the Supreme Court disagreeing with a decision rendered by a circuit court majority that included a judge who once clerked for Brett Kavanaugh.As for Section 241, which prohibits a “conspiracy against rights,” once again our interpretation of the statute is supported by generations of precedent. A review of relevant case law takes us from a series of critical cases in the 1930s to the 1974 Supreme Court opinion I talked about earlier and to a conviction this year of a man named Douglass Mackey. He engineered a scheme to deceive Hillary Clinton voters into “voting” by text message rather than casting an actual, legal ballot. His scheme wasn’t violent or forcible, but it was certainly illegal.Look, lawyers make good-faith arguments to reverse or revise precedent all the time. Sometimes those arguments succeed. But you need to tell your client that the existing case law is on my side, not yours, and if he is resting his defense on the Supreme Court coming to his aid, you might want to remind him that even the justices he appointed rejected or refused to hear his legal arguments many times before.Defense: There’s a Supreme Court case you failed to mention, McDonnell v. United States. I know it doesn’t involve the statutes at issue here, but the case shows the Roberts court’s desire to narrow broad criminal statutes. A unanimous Supreme Court threw out the conviction of the former Virginia governor Robert McDonnell on the grounds that the lower courts had construed the term “official act” too broadly in a bribery case. This is a clear indication that the Supreme Court is looking to limit, not expand, the interpretation of federal criminal statutes.Also, remember the rule of lenity? When a law is unclear or ambiguous, the benefit of the doubt goes to the defendant, not the government. And again, this is a principle embraced by justices across the ideological spectrum. This term, the court used the rule of lenity to rule in favor of a defendant in a Bank Secrecy Act case, and Justices Ketanji Brown Jackson and Neil Gorsuch were in lock step agreement. I can read the judicial signs, and the signs point toward narrowing the law.Prosecution: We’re not applying new or novel interpretations to criminal law. Every single count is supported not just by the text but also by a vast amount of precedent. You say the age of our precedent is a problem. I say it’s an advantage. The law has already been interpreted. It is already clear. There is no legal ambiguity in casting fake electoral votes or in utilizing clear threats of criminal prosecution to try to coerce state officials to change the outcome of an election.Your best legal argument rests on what the law might be. Our legal argument rests on what the law actually is. You need to disrupt American law to prevail. We simply need to persuade a conservative court to remain conservative, to follow its instincts to resist radical change.Defense: We’ve not yet begun to fight. I’ve barely scratched the surface of your proof problems. Your indictment might fool Democrats and those Never Trump traitors, but it doesn’t fool me. For example, in Paragraph 66 of the indictment, you say that “fraudulent electors convened sham proceedings” to cast “fraudulent electoral ballots” at the “direction” of Trump.But that’s a conclusory statement. Where is the actual evidence that he was in command of that process and not one of his lawyers and allies? You’re making a big, bold claim, and that’s going to require big, bold evidence. And that indictment just doesn’t deliver the goods.Prosecution: The indictment describes in detail Trump’s intimate cooperation with his co-conspirators. Are you arguing they were acting on their own? That Trump was just a bystander to the fraudulent efforts on his behalf? Trump was so involved in the effort to overturn the election that he made calls. He said Georgia’s secretary of state and legal counsel faced a “big risk” of criminal prosecution if they (as we said in our indictment) “failed to find election fraud as he demanded.” He called the Republican National Committee chairwoman to put the fake electors plan in motion. Yes, Trump had free-agent allies who tried to help him steal the election, but none of the co-conspirators were free agents. They were all his partners in crime. Besides, as you well know, this indictment is the summary of our evidence, not the sum total of our evidence. Not only do we possess the evidence sufficient to make that claim; the grand jury is still at work.I think this exercise spotlights the most important issues, for now. Both sides have barely begun to fight, and the public has barely begun to consider the full range of evidence and arguments in the case.Moreover, this piece doesn’t deal at all with the effect of the prosecution on the body politic. On Tuesday, The Times published a compelling piece by a Harvard Law School professor, Jack Goldsmith, warning of the consequences of prosecuting a former president during an election campaign.My view is that the American government faces greater risks if prosecutors don’t try to punish Trump for his coup attempt. As I wrote on the day of the indictment, it’s necessary to prosecute Trump on these facts — not because a conviction is inevitable but because our nation cannot set a precedent that presidents enjoy a zone of impunity for their misconduct that no other citizen enjoys.I wouldn’t just be comfortable bringing this case to a jury; I’d be eager to make my argument. But I’d also know that Trump’s legal team has its own defenses, and it’s far from certain that a judge or a jury will agree with the prosecution’s case. But democracies aren’t sustained without risk, and prosecuting Trump is a risk our nation needs to take.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Trump Election Charges Set Up Clash of Lies Versus Free Speech

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      The indictment of former President Donald J. Trump over his efforts to retain power accuses him of conspiracies built on knowing falsehoods. His supporters say he is protected by the First Amendment.Running through the indictment charging former President Donald J. Trump with conspiring to overturn the 2020 election was a consistent theme: He is an inveterate and knowing liar.The indictment laid out how, in the two months after Election Day, Mr. Trump “spread lies” about widespread election fraud even though he “knew that they were false.”Mr. Trump “deliberately disregarded the truth” and relentlessly disseminated them anyway at a “prolific” pace, the indictment continued, “to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”Of course, Mr. Trump has never been known for fealty to truth.Throughout his careers in business and politics, he has sought to bend reality to his own needs, with lies ranging from relatively small ones, like claiming he was of Swedish and not German descent when trying to rent to Jewish tenants in New York City, to proclaiming that President Barack Obama was not born in the United States.If you repeat something enough, he has told confidants over time, people will believe it.By and large, this trait has served him well, helping him bluster and bluff his way through bankruptcies and then to the White House and through crises once he was there: personal scandals, two impeachments and a special counsel’s investigation when he was in office.But now he is being held to account in a way he never has been before for what a new special counsel, Jack Smith, is asserting was a campaign of falsehoods that undermined the foundations of democracy.Already, Mr. Trump’s lawyers and allies are setting out the early stages of a legal strategy to counter the accusations, saying that Mr. Trump’s First Amendment rights are under attack. They say Mr. Trump had every right to express views about election fraud that they say he believed, and still believes, to be true, and that the actions he took or proposed after the election were based on legal advice.Jack Smith, the special counsel, announced an indictment of former President Donald J. Trump in Washington on Tuesday.Doug Mills/The New York TimesThe indictment and his initial response set up a showdown between those two opposing assertions of principle: that what prosecutors in this case called “pervasive and destabilizing lies” from the highest office in the land can be integral to criminal plans, and that political speech enjoys broad protections, especially when conveying what Mr. Trump’s allies say are sincerely held beliefs.While a judge and jury will ultimately decide how much weight to give each, Mr. Trump and his allies were already on the offensive after the indictment.“So the First Amendment protects President Trump in this way: After 2020, he saw all these irregularities, he got affidavits from around the country, sworn testimony, he saw the rules being changed in the middle of the election process — as a president, he’s entitled to speak on those issues,” Mr. Trump’s defense lawyer in the case, John Lauro, said on Wednesday in an interview on CBS.”What the government would have to prove in this case, beyond a reasonable doubt, is that speech is not protected by the First Amendment, and they’ll never be able to do that,” he said.Representative Elise Stefanik of New York, the No. 3 Republican in the House, said in a statement that Mr. Trump had “every right under the First Amendment to correctly raise concerns about election integrity in 2020.”Representative Gary Palmer of Alabama, the chairman of the Republican Policy Committee, called the indictment a “criminalization of disinformation and misinformation, which raises serious concerns about the public’s right to speak openly in opposition to policies they oppose.”Legal experts were skeptical about the strength of those claims as a defense. They pointed out that the indictment said on its second page that all Americans had the right to say what they wanted about the election — even if it was false. But, the indictment asserts, it is illegal to use those false claims to engage in criminal conduct, the experts said.An individual’s free-speech rights essentially end as soon as those words become evidence of criminality, they said. In the case of the indictment against Mr. Trump, the prosecutors argue that Mr. Trump used his statements to persuade others to engage in criminal conduct with him, like signing fake slates of electors or pressuring Vice President Mike Pence to block or delay Electoral College certification of President Biden’s victory.According to the indictment, Mr. Trump “knowingly” used “false claims of election fraud” to try to “convince the vice president to accept the defendant’s fraudulent electors, reject legitimate electoral votes or send legitimate electoral votes to state legislatures for review rather than counting them.”The indictment goes on to say that when those efforts failed, Mr. Trump turned to using the crowd at the rally on the Ellipse “to pressure the vice president to fraudulently alter the election results.”Samuel W. Buell, a professor of law at Duke University and a lead federal prosecutor in the Justice Department’s prosecution of Enron, said that it “won’t work legally but it will have some appeal politically, which is why he is pushing it.”“There is no First Amendment privilege to commit crimes just because you did it by speaking,” Mr. Buell said.Referring to both public and private remarks, Mr. Buell said that “there is no First Amendment privilege for giving directions or suggestions to other people to engage in illegal acts.”Referring to the fictional television mafia boss Tony Soprano, Mr. Buell added, “Tony Soprano can’t invoke the First Amendment for telling his crew he wants someone whacked.”For decades, Mr. Trump’s penchant for falsehoods and exaggerations was well known in New York City. He was so distrusted by Mayor Ed Koch in the 1980s that one of the mayor’s deputies, Alair Townsend, famously quipped, “I wouldn’t believe Donald Trump if his tongue were notarized.”Mr. Trump spoke with journalists by phone while pretending to be a spokesman representing himself, in order to leak information about his business or his personal life. He claimed to have dated women who denied being involved with him. He claimed that he lived on the 66th through 68th floors of Trump Tower, which in fact has only 58 floors.Reaching the presidency did not lead to a change in his habits. The Washington Post’s fact checker identified more than 30,000 false or misleading claims from him over his four years in office, a figure equivalent to 21 a day.Mr. Trump has already tried to invoke the First Amendment in civil cases related to the attacks on the Capitol on Jan. 6, 2021. In February 2022, a federal judge in Washington ruled that lawsuits related to whether he incited the crowd that stormed the Capitol could proceed, in part because the First Amendment did not protect the speech he gave on the Ellipse before the riot.“Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a president’s speech,” Judge Amit P. Mehta of the Federal District Court in Washington ruled. “But the court believes this is that case. Even presidents cannot avoid liability for speech that falls outside the expansive reach of the First Amendment. The court finds that in this one-of-a-kind case the First Amendment does not shield the president from liability.”The experts and defense lawyers who read the indictment against Mr. Trump said that claiming that he was relying on the advice of lawyers was likely to provide Mr. Trump with a stronger defense than if he invoked the First Amendment.In the interview on CBS, Mr. Lauro leaned into that argument, saying that Mr. Trump had a “smoking gun of innocence” in a memo that the conservative legal scholar John Eastman wrote for him. The memo said Mr. Trump could ask Mr. Pence to pause the congressional certification of the election. Mr. Eastman was not a White House lawyer at the time.“John Eastman, who is an eminent scholar, gave the president an option — several options,” Mr. Lauro said.Alan Feuer More

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      Supreme Court to Hear Dispute Over ‘Trump Too Small’ Slogan

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      In earlier cases, the justices struck down provisions of the trademark law that discriminated based on the speaker’s viewpoint.The Supreme Court agreed on Monday to decide whether a California lawyer may trademark the phrase “Trump too small,” a reference to a taunt from Senator Marco Rubio, Republican of Florida, during the 2016 presidential campaign. Mr. Rubio said Donald J. Trump had “small hands,” adding: “And you know what they say about guys with small hands.”The lawyer, Steve Elster, said in his trademark application that he wanted to convey the message that “some features of President Trump and his policies are diminutive.” He sought to use the phrase on the front of T-shirts with a list of Mr. Trump’s positions on the back. For instance: “Small on civil rights.”A federal law forbids the registration of trademarks “identifying a particular living individual except by his written consent.” Citing that law, the Patent and Trademark Office rejected the application.A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the office to allow the registration.“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” Judge Timothy B. Dyk wrote for the court. “As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”The size of Mr. Trump’s hands has long been the subject of commentary. In the 1980s, the satirical magazine Spy tormented Mr. Trump, then a New York City real estate developer, with the recurring epithet “short-fingered vulgarian.”In 2016, during a presidential debate, Mr. Trump addressed Mr. Rubio’s critique.“Look at those hands, are they small hands?” Mr. Trump said, displaying them. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court. Solicitor General Elizabeth B. Prelogar said Mr. Elster was free to discuss Mr. Trump’s physique and policies but was not entitled to a trademark.The Supreme Court has twice struck down provisions of the trademark law in recent years on First Amendment grounds.In 2019, it rejected a provision barring the registration of “immoral” or “scandalous” trademarks.That case concerned a line of clothing sold under the brand name FUCT. When the case was argued, a government lawyer told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”Justice Elena Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”A bedrock principle of First Amendment law, she wrote, is that the government may not draw distinctions based on speakers’ viewpoints.In 2017, a unanimous eight-justice court struck down another provision of the trademarks law, this one forbidding marks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”The decision, Matal v. Tam, concerned an Asian American dance-rock band called The Slants. The court split 4 to 4 in much of its reasoning, but all the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints.The new case, Vidal v. Elster, No. 22-704, is arguably different, as the provision at issue does not appear to make such distinction. In his Supreme Court brief, Mr. Elster responded that “the statute makes it virtually impossible to register a mark that expresses an opinion about a public figure — including a political message (as here) that is critical of the president of the United States.” More

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      Inside Fox’s Legal and Business Debacle

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      In August 2021, the Fox Corporation board of directors gathered on the company’s movie studio lot in Los Angeles. Among the topics on the agenda: Dominion Voting Systems’ $1.6 billion defamation lawsuit against its cable news network, Fox News.The suit posed a threat to the company’s finances and reputation. But Fox’s chief legal officer, Viet Dinh, reassured the board: Even if the company lost at trial, it would ultimately prevail. The First Amendment was on Fox’s side, he explained, even if proving so could require going to the Supreme Court.Mr. Dinh told others inside the company that Fox’s possible legal costs, at tens of millions of dollars, could outstrip any damages the company would have to pay to Dominion.That determination informed a series of missteps and miscalculations over the next 20 months, according to a New York Times review of court and business records, and interviews with roughly a dozen people directly involved in or briefed on the company’s decision-making.The case resulted in one of the biggest legal and business debacles in the history of Rupert Murdoch’s media empire: an avalanche of embarrassing disclosures from internal messages released in court filings; the largest known settlement in a defamation suit, $787.5 million; two shareholder lawsuits; and the benching of Fox’s top prime-time star, Tucker Carlson.And for all of that, Fox still faces a lawsuit seeking even more in damages, $2.7 billion, filed by another subject of the stolen-election theory, the voting software company Smartmatic, which can now build on the evidence produced in the Dominion case to press its own considerable claims.In the month since the settlement, Fox has refused to comment in detail on the case or the many subsequent setbacks. That has left a string of unanswered questions: Why did the company not settle earlier and avoid the release of private emails and texts from executives and hosts? How did one of the most potentially prejudicial pieces of evidence — a text from Mr. Carlson about race and violence — escape high-level notice until the eve of the trial? How did Fox’s pretrial assessment so spectacularly miss the mark?Repeatedly, Fox executives overlooked warning signs about the damage they and their network would sustain, The Times found. They also failed to recognize how far their cable news networks, Fox News and Fox Business, had strayed into defamatory territory by promoting President Donald J. Trump’s election conspiracy theories — the central issue in the case. (Fox maintains it did not defame Dominion.)When pretrial rulings went against the company, Fox did not pursue a settlement in any real way. Executives were then caught flat-footed as Dominion’s court filings included internal Fox messages that made clear how the company chased a Trump-loving audience that preferred his election lies — the same lies that helped feed the Jan. 6 Capitol riots — to the truth.It was only in February, with the overwhelming negative public reaction to those disclosures, that Mr. Murdoch and his son with whom he runs the company, Lachlan Murdoch, began seriously considering settling. Yet they made no major attempt to do so until the eve of the trial in April, after still more damaging public disclosures.At the center of the action was Mr. Dinh and his overly rosy scenario.Mr. Dinh declined several requests for comment, and the company declined to respond to questions about his performance or his legal decisions. “Discussions of specific legal strategy are privileged and confidential,” a company representative said in a statement.Defenders of Mr. Dinh, a high-level Justice Department official under President George W. Bush, say his initial position was sound. Because of the strength of American free speech protections, Dominion needed to clear a high bar. And unfavorable rulings from the Delaware judge who oversaw the case hurt Fox’s chances, they argue.“I think Viet and Fox carried out just the right strategy by moving down two paths simultaneously — first, mounting a strong legal defense, one that I think would have eventually won at the appellate stage, and, second, continuously assessing settlement opportunities at every stage,” said William P. Barr, the former attorney general under Mr. Trump who worked with Mr. Dinh earlier in his career. Of course, the case would have been difficult for any lawyer. As the internal records showed, executives knew conspiracy theories about Dominion were false yet did not stop hosts and guests from airing them.That placed Fox in the ultimate danger zone, where First Amendment rights give way to the legal liability that comes from knowingly promoting false statements, referred to in legalese as “actual malice.”An Unanswered LetterMaria Bartiromo was the first Fox host to air the Dominion conspiracy theory.Roy Rochlin/Getty ImagesThe fall of 2020 brought Fox News to a crisis point. The Fox audience had come to expect favorable news about President Trump. But Fox could not provide that on election night, when its decision desk team was first to declare that Mr. Trump had lost the critical state of Arizona.In the days after, Mr. Trump’s fans switched off in droves. Ratings surged at the smaller right-wing rival Newsmax, which, unlike Fox, was refusing to recognize Joseph R. Biden’s victory.The Fox host who was the first to find a way to draw the audience back was Maria Bartiromo. Five days after the election, she invited a guest, the Trump-aligned lawyer Sidney Powell, to share details about the false accusations that Dominion, an elections technology company, had switched votes from Mr. Trump to Mr. Biden.Soon, wild claims about Dominion appeared elsewhere on Fox, including references to the election company’s supposed (but imagined) ties to the Smartmatic election software company; Hugo Chávez, the Venezuelan dictator who died in 2013; George Soros, the billionaire investor and Democratic donor; and China.On Nov. 12, a Dominion spokesman complained to the Fox News Media chief executive, Suzanne Scott, and the Fox News Media executive editor, Jay Wallace, begging them to make it stop. “We really weren’t thinking about building a litigation record as much as we were trying to stop the bleeding,” Thomas A. Clare, one of Dominion’s lawyers, said recently at a post-mortem discussion of the case held by a First Amendment advocacy group, the Foundation for Individual Rights and Expression.As Fox noted in its court papers, its hosts did begin including company denials. But as they continued to give oxygen to the false allegations, Dominion sent a letter to the Fox News general counsel, Lily Fu Claffee, demanding that Fox cease and correct the record. “Dominion is prepared to do what is necessary to protect its reputation and the safety of its employees,” the letter warned.It came amid more than 3,600 messages that Dominion sent debunking the conspiracy theories to network hosts, producers and executives in the weeks after the election.Such letters often set off internal reviews at news organizations. Fox’s lawyers did not conduct one. Had they done so, they may have learned of an email that Ms. Bartiromo received in November about one of Ms. Powell’s original sources on Dominion.The source intimated that her information had come from a combination of dreams and time travel. (“The wind tells me I’m a ghost but I don’t believe it,” she had written Ms. Powell.)Dan Novack, a First Amendment lawyer, said that if he ever stumbled upon such an email in a client’s files, he would “physically wrest my client’s checkbook from them and settle before the police arrive.”Fox, however, did not respond to the Dominion letter or comply with its requests — now a key issue in a shareholder suit filed in April, which maintains that doing so would have “materially mitigated” Fox’s legal exposure.The CaseDominion’s chief executive, John Poulos, at a news conference in April after the company settled its defamation suit against Fox.Pete Marovich for The New York TimesThree months after the election, another voting technology company tied to the Dominion conspiracy, Smartmatic, filed its own defamation suit against Fox, seeking $2.7 billion in damages. Dominion told reporters that it was preparing to file one, too.Mr. Dinh was publicly dismissive.“The newsworthy nature of the contested presidential election deserved full and fair coverage from all journalists, Fox News did its job, and this is what the First Amendment protects,” Mr. Dinh said at the time in a rare interview with the legal writer David Lat. “I’m not at all concerned about such lawsuits, real or imagined.”Mr. Dinh was saying as much inside Fox, too, according to several people familiar with his actions at the time. His words mattered.A refugee of Vietnam who fled the Communist regime and landed with his family in the United States virtually penniless, he graduated from Harvard and Harvard Law and was a clerk for Justice Sandra Day O’Connor. As an assistant attorney general for George W. Bush, he helped draft the Patriot Act expanding government surveillance powers. He and Lachlan Murdoch later became so close that Mr. Dinh, 55, is godfather to one of Mr. Murdoch’s sons.Mr. Dinh took a hands-on approach to the Dominion case, and eventually split with a key member of the outside team, Charles L. Babcock of Jackson Walker, according to several people with knowledge of the internal discussions.After disagreement over the best way to formulate Fox’s defense, Jackson Walker and Fox parted ways. George Freeman, executive director of the Media Law Resource Center and a former assistant general counsel for The Times, said Mr. Babcock’s exit had left Fox down a seasoned defamation defense lawyer. “He’s probably the best trial lawyer in the media bar,” Mr. Freeman said.By then, Mr. Dinh was fashioning the legal team more in his own image, having brought in a longtime colleague from the Bush administration, the former solicitor general Paul Clement.Mr. Clement’s presence on the Fox team was itself an indication of Mr. Dinh’s willingness to take the case all the way to the Supreme Court — few members of the conservative legal bar had more experience there.Mr. Dinh hired Dan Webb, a former U.S. attorney, for the role of lead litigator, succeeding Mr. Babcock. Mr. Webb was known for representing a beef manufacturer that sued ABC News over reports about a product sometimes referred to as “pink slime.” The case was settled in 2017 for more than $170 million.The Fox legal team based much of the defense on a doctrine known as the neutral reportage privilege. It holds that news organizations cannot be held financially liable for damages when reporting on false allegations made by major public figures as long as they don’t embrace or endorse them.“If the president of the United States is alleging that there was fraud in an election, that’s newsworthy, whether or not there’s fraud in the election,” Mr. Clement told Jim Geraghty, a writer for National Review and The Washington Post. “It’s the most newsworthy thing imaginable.”Fox remained so confident, the company said in reports to investors that it did not anticipate the suit would have “a material adverse effect.”But the neutral reportage privilege is not universally recognized. Longtime First Amendment lawyers who agree with the principle in theory had their doubts that it would work, given that judges have increasingly rejected it.“Most astute media defamation defense lawyers would not, and have not for a very long time, relied on neutral reportage — certainly as a primary line of defense, because the likelihood that a court would accept it as a matter of First Amendment law has continued to diminish over time,” said Lee Levine, a veteran media lawyer. An early warning came in late 2021. The judge in the case, Eric M. Davis, rejected Fox’s attempt to use the neutral reportage defense to get the suit thrown out altogether, determining that it was not recognized under New York law, which he was applying to the case. Even if it was recognized, Fox would have to show it reported on the allegations “accurately and dispassionately,” and Dominion had made a strong argument that Fox’s reporting was neither, the judge wrote in a ruling.That ruling meant that Dominion, in preparing its arguments, could have access to Fox’s internal communications in discovery.That was a natural time to settle. But Fox stuck with its defense and its plan, which always foresaw a potential loss at trial. “There was a strong belief that the appeal could very well be as important, or more important, than the trial itself,” Mr. Webb said at the post-mortem discussion of the case with Mr. Clare.Things Fall ApartText messages that came to light in the Dominion case included assertions by the Fox host Tucker Carlson that voter fraud could not have made a material difference in the election.Rebecca Noble for The New York TimesFox executives did not foresee how daunting the discovery process would become.At nearly every step, the court overruled Fox’s attempts to limit Dominion’s access to private communications exchanged among hosts, producers and executives. The biggest blow came last summer, after a ruling stating that Dominion could review messages from the personal phones of Fox employees, including both Murdochs.The result was a treasure trove of evidence for Dominion: text messages and emails that revealed the doubts that Rupert Murdoch had about the coverage airing on his network, and assertions by many inside Fox, including Mr. Carlson, that fraud could not have made a material difference in the election.The messages led to even more damaging revelations during depositions. After Dominion’s lawyers confronted Mr. Murdoch with his own messages showing he knew Mr. Trump’s stolen election claims were false, he admitted that some Fox hosts appeared to have endorsed stolen election claims.That appeared to have undermined Fox’s defense. But Mr. Dinh told Mr. Murdoch afterward that he thought the deposition had gone well, according to a person who witnessed the exchange. Mr. Murdoch then pointed a finger in the direction of the Dominion lawyer who had just finished questioning him and said, “I think he would strongly disagree with that.”During Mr. Carlson’s deposition last year, Dominion’s lawyers asked about his use of a crude word to describe women — including a ranking Fox executive. They also mentioned a text in which he discussed watching a group of men, who he said were Trump supporters, attack “an Antifa kid.” He lamented in the text, “It’s not how white men fight,” and shared a momentary wish that the group would kill the person. He then said he regretted that instinct.Mr. Carlson felt blindsided by the extent of the questions, according to associates and confirmed by a video leaked to the left-leaning group Media Matters: “Ten hours,” he exclaimed to people on the set of his show, referring to how long he was questioned. “It was so unhealthy, the hate I felt for that guy,” he said about the Dominion lawyer who had questioned him.There is no indication that Mr. Carlson’s texts tripped alarms at the top of Fox at that point.The alarms rang in February, when reams of other internal Fox communications became public. The public’s reaction was so negative that some people at the company believed that a jury in Delaware — which was likely to be left-leaning — could award Dominion over a billion dollars. Yet the company made no serious bid to settle.With prominent First Amendment lawyers declaring that Dominion had an exceptionally strong case, a siege mentality appeared to set in.In the interview with Mr. Geraghty, Mr. Clement said Fox was being singled out for its politics. Unlike mainstream media, which tend to report on major events the same way and have power in numbers, he said, “conservative media, or somebody like Fox, is in a much more vulnerable position.” He added, “If they report it, and the underlying allegations aren’t true, they’re much more out there on an island.”Reflecting the view of Mr. Dinh’s supporters even now, Mr. Barr, the former attorney general, said the “mainstream media stupidly cheered on Dominion’s case,” which he said they would come to regret because it would weaken their First Amendment protections. (He made a similar argument in March in The Wall Street Journal.)But Judge Davis had determined that Fox had set itself apart by failing to conduct “good-faith, disinterested reporting” in the segments at issue in the suit. That was in large part why, just ahead of opening statements, he ruled that Fox could not make neutral reportage claims that the conspiracy theory was newsworthy at the trial, knocking out a pillar of Fox’s strategy. (He also ruled that Fox had, indeed, defamed the company in airing the false statements.)Mr. Webb, who had already drafted much of his opening statement and tested it with a focus group, had to remove key parts of his remarks, he said in the post-trial discussion with Mr. Clare.The Directors Step InRupert and Lachlan Murdoch. Rupert Murdoch acknowledged in a deposition that several hosts for his networks promoted the false narrative that the 2020 election was stolen from President Donald J. Trump.Drew Angerer/Getty ImagesAll along, the Fox board had been taking a wait-and-see approach.But the judge’s pretrial decisions began to change the board’s thinking. Also, in those final days before the trial, Fox was hit with new lawsuits. One, from the former Fox producer Abby Grossberg, accused Mr. Carlson of promoting a hostile work environment. Another, filed by a shareholder, accused the Murdochs and several directors of failing to stop the practices that made Fox vulnerable to legal claims.The weekend before trial was to begin, with jury selection already underway, the board asked Fox to see the internal Fox communications that were not yet public but that could still come out in the courtroom.That Sunday, the board learned for the first time of the Carlson text that referred to “how white men fight.” Mr. Dinh did not know about the message until that weekend, according to two people familiar with the matter. Fox’s lawyers believed it would not come out at trial, because it was not relevant to the legal arguments at hand. The board, however, was concerned that Dominion was prepared to use the message to further undermine the company with the jury.In an emergency meeting that Sunday evening, the board — with an eye on future lawsuits, including those from Smartmatic and Ms. Grossberg — decided to hire the law firm Wachtell, Lipton Rosen & Katz to investigate whether any other problematic texts from Mr. Carlson or others existed.Over that same weekend, Lachlan Murdoch told his settlement negotiators to offer Dominion more than the $550 million for which he had already received board approval.In interviews, people with knowledge of the deliberations disagreed about how much Mr. Carlson’s text contributed to the final $787.5 million settlement price.By the time the board learned of the message, the Murdochs had already determined that a trial loss could be far more damaging than they were initially told to expect. A substantial jury award could weigh on the company’s stock for years as the appeals process played out.“The distraction to our company, the distraction to our growth plans — our management — would have been extraordinarily costly, which is why we decided to settle,” Lachlan Murdoch said at an investment conference this month.But there was broad agreement among people with knowledge of the discussions that the Carlson text, and the board’s initiation of an investigation, added to the pressure to avoid trial.The text also helped lead to the Murdochs’ decision a few days later to abruptly pull Mr. Carlson off the air. Their view had hardened that their top-rated star wasn’t worth all the downsides he brought with him.Fox’s trouble has not ended. In the weeks since the settlement and Mr. Carlson’s ouster, prime-time ratings have dropped (though Fox remains No. 1 in cable news), and new plaintiffs sued the network, most recently a former Homeland Security official, Nina Jankowicz.As one of Ms. Jankowicz’s lawyers said in an interview, the Dominion case “signals that there is a path.”Still pending is the Smartmatic suit. In late April, Fox agreed to hand over additional internal documents relating to several executives, including the Murdochs and Mr. Dinh. In a statement reminiscent of Mr. Dinh’s early view of the Dominion case, the network said that the $2.7 billion in damages sought by Smartmatic — operating in only one county in 2020 — were implausible and that Fox was protected by the First Amendment.“We will be ready to defend this case surrounding extremely newsworthy events when it goes to trial, likely in 2025,” the statement said. More