By Andrew Cohen
David McCraw never intended to be a crisis manager when he joined The New York Times’ legal team. But when the Taliban kidnapped reporter David Rohde in Afghanistan 15 years ago, he leaned on his law school training to navigate an unexpected role.
“In some ways, the experience isn’t that different from what lawyers do every day as problem solvers,” McCraw said during a recent event presented by the student organization Mass Media at Berkeley Law. “There are facts you know and facts you don’t know, and you have to be the problem-solver.
“One of the most difficult parts was managing the expectations of the family, who obviously had deep feelings about what was going on but different goals than The New York Times Company. The family’s sole interest was getting their loved one back, understandably, but I had to make decisions that would also protect our journalists in the long run.”
Now the paper’s deputy general counsel, McCraw has spent over 20 years at the Times and is its lead newsroom lawyer. His 2019 book Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts describes strategies developed for legal battles surrounding the paper’s coverage of issues from national security to political candidates to privacy leaks.
As the lead litigator for Freedom of Information Act (FOIA) lawsuits brought by the paper and its journalists, McCraw has overseen more than 100 FOIA cases against the federal government. Those suits helped disclose records about chemical weapons found in Iraq, the government’s legal justification for drone killings abroad, and the identities of companies and individuals allowed to trade with sanctioned nations.
Fact finding
Interviewed by Mass Media at Berkeley Law co-leaders Caroline Lester ’24 and Devanshi Patel-Martin ’24, McCraw said the Times publishes about 150 to 250 pieces of content a day, but that the legal team probably reviews only 20 to 30 a week.
“The thing people think of when they think of newsroom lawyers, but isn’t actually that big of a time commitment, is reviewing content for potential liability,” he said. “Lawyers who make journalists scared, make them fearful of liability, do a disservice to the news and to the public. I see myself as empowering, not stopping, journalism. Freedom of the press is so incredible in this country, and it’s my job to exploit that to protect journalists.”
McCraw works with nonprofits to safeguard journalists in conflict areas and engages in pro bono efforts worldwide regarding press freedom and access to information, working on projects in Yemen, Montenegro, Kuwait, Russia, and Cameroon. He has also conducted workshops on freedom of information in South America, the Middle East, and Europe.
He said Times lawyers handle about half of their own litigation, as opposed to outsourcing it, which he called atypical. Another key job function is working with the security team to create a security plan for journalists entering high-risk areas because of hostility, war, or other reasons.
“Every night when I go to sleep, I know there are 20 to 30 New York Times people in Ukraine who are my responsibility,” he said.
Managing mistrust
McCraw asserted that government mistrust of the media is a non-partisan — or really an all-partisan — concern.
“My feeling is that there should be a lot more transparency in government, and this is a problem for both Democrats and Republicans,” he said. “There are certain cases where secrecy may be necessary, but in general, there should be a whole lot more openness.”
His biggest concern is the spread of misinformation and the potential impact of ongoing vilification of the press. McCraw said the number of libel suits against the Times spiked for a time in 2020, noting that the Trump administration subpoenaed Google for metadata from Times emails — trying to find information about leaks to reporters about national security investigations — and the Biden administration continued the investigation when it took power in January 2021.
They did this without alerting the paper, McCraw said, adding that he had never experienced that before. He said Google refused to turn over the information unless the U.S. Department of Justice gave it permission to notify the Times, and that after being notified he was able to push back and get the order withdrawn. Later, McCraw said Attorney General Merrick Garland invited him and the Times’ publisher to Washington and assured them he would not continue seeking data from news-gathering organizations.
“It was really an electric moment to have him recognize what we’ve been advocating for years: that news organizations should play a different role in society than government officials,” McCraw said.
The media law landscape
While media law remains a small practice area, McCraw pointed to growing interest in free expression — especially with power players like Google and Facebook forced to start thinking about the First Amendment and becoming engaged in conversations around press freedom.
“And there are a lot of startups and nonprofits filling the space in journalism,” he said. “Hiring lawyers is pretty far down on the list, but if those players can sustain themselves, there will be more opportunities in the future.”
As for the growing problem of disinformation online, McCraw sees three potential sources for solutions: regulation by the government, regulation by internet platforms, and readers becoming more discerning. However, he said recent history makes him distrust that the government can regulate the issue correctly, platforms seem unlikely to do it or to do it right if they tried, and helping readers become more media literate may be the toughest lift of all.
Saying he used to blame the problem on young people, McCraw noted that studies show more readers over 50 are susceptible to disinformation.
“We’d like to think that we’re part of the remedy for disinformation,” he said. “But to be honest, this is a hard issue for us because we have traditionally supported free expression — which the Supreme Court says includes the right to tell lies sometimes.”
Claudia Liss-Schultz ’25 contributed to this report