Until Paramount seized the trophy . . . (Updated)

It appears that institutions will stick together in response to Trump authoritarianism. Not by joining together in collective resistance, as one would hope. But by individually capitulating, thereby providing cover to the next institution to capitulate.

Yesterday was Penn. Today it is Paramount and CBS, which settled Trump's lawsuit arising from the "60 Minutes" interview with Kamala Harris. Paramount will pay $ 16 million to the Trump Presidential Library and agreed to release transcripts of future interviews with presidential candidates (which seems problematic as a free-speech matter), but will not issue an apology to Trump and the public.

Which is worse? I believe Penn takes the prize because of the targeted and personal nature of of the investigation and the settlement--it agreed to publicly hurt one person. But Paramount/CBS may have broader legal and political consequences.

Everyone knows CBS settled so the Trump Administration will approve the pending sale of parent company Paramount, making this look like a cash bribe.* While any Title IX action against Penn was open-but-winnable (it is not clear that Title IX prohibits trans-women from sports and certainly was not the case in 2021), Trump's case (asserting consumer-protection claims from media reporting and emotional-distress injuries) was frivolous as a matter of state law, before even getting to the First Amendment problems (which Bob Bauer highlights). And this (along with Disney's similar $ 16-million settlement of a suit over ABC News reporting) has set the market and incentivizes the Trump to repeat the play in the future.

[*] California and other Blue States have suggested opening bribery investigations. The Freedom of the Press Foundation has threatened a shareholder derivative suit.

CBS and the rest of the media are circling the wagons and pushing two narratives to make its move seem less craven. First is "let's move on," in a way that ignores future risks. Some within CBS news say it is good to put this behind them, while CBS News President Tom Cibrowski said it was important to block out the noise and move forward reporting the news. But that suggests they cannot and will not happen again the next time they report news that Trump does not like. Daily events show the likelihood this will happen again--he already has threatened outlets over reporting that bombing did not "obliterate"Iran nuclear program. Maybe Shari Redstone will have completed the sale and no longer will care. The rest of the journalism world should.

Cibrowski emphasized the no-apology piece of the settlement to suggest that CBS had not lost. But then we get this from Trump's legal team:

"With this record settlement, President Donald J. Trump delivers another win for the American people as he, once again, holds the Fake News media accountable for their wrongdoing and deceit," the spokesman said. "CBS and Paramount Global realized the strength of this historic case and had no choice but to settle. President Trump will always ensure that no one gets away with lying to the American People as he continues on his singular mission to Make America Great Again."

The second narrative is "most cases settle" (CNN's Laura Coates called it Paramount's "prerogative"), in a way that misrepresents what settlement entails, why this case settled, and what it means for journalism. Recall that pre-1960, the New York Times adhered to a no-settlement policy--it was willing to fight defamation actions on less-favorable legal terrain, accept any losses as the cost of doing the public-facing business of journalism, and never face the kind of "they settled because our case was so powerful" demagoguery of the Trump statement. When Southern officials pursued a defamation-litigation campaign over coverage of the Civil Rights Movement and sought judgments in the hundreds of millions, that strategy ceased to be tenable. Sullivan and its progeny reworked that legal terrain, making it more favorable to speakers and media defendants. Media outlets therefore could return to that no-settle strategy; the new legal regime better enabled them to prevail on the merits or take the cost of the rare loss. That legal terrain ensured (or at least made highly likely) that Paramount would have prevailed in Trump's lawsuit. Yet it voluntarily surrendered that strong legal position to secure its private corporate interests, the First Amendment and journalism be damned.

Update: Bauer writes that this is a project for law reform, although I cannot see what law reforms would solve this problem. Paramount had an arsenal of legal weapons and chose not to wield them. So did Disney/ABC. What additional weapons would have prompted these companies to litigate rather than fold? Many push for a federal SLAPP statute, although I do not believe that adds much that Twiqbal and Celotex do not provide. I would like to see a fee-shifting statute (or application of state fee-shifting in federal court). Again, however, if the driving factor is not the financial cost of litigation but the desire to stay in Trump's graces, these protections will not change media behavior. What other reforms would?