When “anticipatory obedience” becomes “autocratic capture”

The ABC settlement, Disney, and the need for collective defense

For many press watchers, the ABC News settlement last weekend had serious Neville-Chamberlain-in-Munich energy.

Certainly, this is the most important development so far in the brewing existential struggle between the incoming Trump Administration and the free press.

Read more: The existential struggle between journalism and authoritarianism.

The key point to understand is that this is a lot bigger than just a battle between Donald Trump and individual journalists like George Stephanopoulos.

Considering the deep interconnections between America’s media and its corporate sector, this is part of an effort to bring the private sector as a whole to heel. To enforce what Ian Bassin has termed “autocratic capture,” a pattern in backsliding countries around the world. Using government power to coerce political loyalty (and money too) from anyone with wealth, power, and influence.

And if corporate America and the media don’t collectively stand up — early and vigorously — they may all find themselves under the thumb. As will we all.

A quick primer on “actual malice”

Before I go any further, the important context here is that the First Amendment is supposed to make this sort of bullying and silencing of the press by public officials extraordinarily difficult.

One of the ways it does so is the “actual malice” standard for defamation cases, which applies to statements about public officials and public figures. As John Langford, Rachel Goodman, and Rebecca Lullo explain, in an “actual malice” case, the plaintiff must prove that the defendant either knew that the statement was false at the time, or else demonstrated “reckless disregard” as to its falsity.

(This standard, by the way, was first articulated in a Supreme Court case over a defamation claim brought by a political figure against a newspaper in New York Times Company vs. Sullivan.)

Obviously, it’s quite difficult to prove in court that someone knew they were lying, which is why it’s so hard for public officials to win defamation cases — and why they seldom pursue them. This helps protect public debate and a free press. Per John, Rachel, and Rebecca:

In practice, the “actual malice” standard protects criticism; it protects the unfettered speech essential to democracy. And it’s fair: it ensures that only those who knowingly or recklessly lie about powerful people and matters of public concern are liable.

The standard keeps public debate robust and reasonably moored to facts, so that the branches of government can grapple appropriately with the issues of the day. It allows some slack for inadvertent lies (which are inevitable in modern society), but it holds tight for disinformation spreaders who intentionally use lies to skew public discourse.

Read more: The “actual malice” standard, explained.

That’s why many legal observers expected ABC to win the case and were surprised by the decision to settle.

It came down to two factors: (1) ABC News is a subsidiary of the Walt Disney Company and (2) exactly a month from today, Donald Trump will be president.

Corporate leaders understandably fear retaliation

In the contemporary United States, we have a specific and often under-appreciated vulnerability to authoritarianism: Our media sector is closely intertwined with larger corporate and financial interests. Newspapers are owned by billionaires who made their money elsewhere. TV stations are owned by conglomerates that also sell cruise vacations or cell phone plans.

For big corporations, whether or not to engage in “anticipatory obedience” — to obey in advance — implicates a lot more than just the journalists and their careers and reputations.

(For an illustration of this, watch for differences between the ABC lawsuit and the one Trump filed against the Des Moines Register, which has so far signaled an intent to aggressively fight back. The Register is owned by Gannett, which, unlike Disney, is almost exclusively in the news business.)

Per The New York Times, four things:

1. The decision to settle came from Disney, not ABC News.

2. This was ultimately the call of Bob Iger, Disney’s CEO.

3. Disney was worried that a jury in deep-red Florida would side with Trump, regardless of the law.

4. Even if they did win, at trial or on appeal, Disney was concerned about “litigating against a vindictive sitting president and risking harm to its brand.”

Ouch.

It’s probably not an accident that this first capitulation comes from Disney. Few companies in America have as much experience on the receiving end of authoritarian retaliation as the House of Mouse.

In 2022, Florida Governor Ron DeSantis went after Disney after it voiced opposition to his so-called “don’t say gay” law. This led to a years-long legal struggle that ended in stalemate earlier this year.

As Ian Bassin wrote in 2023, DeSantis’ strategy — which attempted to strip Disney’s control of a special district around Walt Disney World — was a textbook attempt to create “autocratic capture,” a pattern seen in autocracies around the world:

If “state capture” or “regulatory capture” is the process of moneyed interests buying improper influence over government, “autocratic capture” is the opposite: government using its power to coerce political loyalty from moneyed interests.

In a well-functioning democracy, business operates at arm’s length from the government. It neither has undue influence on it, nor is unduly influenced by it. For most of American history, if anything, we suffered from too little of the former: businesses had outsized sway over politics and policy compared to the electorate writ large. That may have been a desirable state of play for many CEOs. But the pendulum is quickly swinging in the other direction, where CEOs may soon find themselves the ones under a thumb.

If you look overseas, the parallels are pretty chilling. Especially Hungary, which, as we’ve written, is pretty much the model Donald Trump is following.

Per Ian:

Bálint Magyar, a former minister in the pre-Orbán Hungarian government who has become a leading scholar of Hungary’s democratic decline, describes the Orbán regime as a “mafia state” – one in which “oligarchs and the organized underworld have not captured the state; rather, an organized ‘upperworld’ of elites have captured the economy, including the oligarchs themselves. The result is a mix between a criminal organization and a privatized, parasitic state.”

Orbán helped to cultivate that “mafia state” by using the levers of state power to enforce political loyalty from big business. He used massive tax breaks and state subsidies to purchase German automakers’ silence on Hungary’s moves away from democracy and the rule of law. And he used state advertising dollars to prop up friendly media entities and used regulatory investigations to harass critical ones.

In short, as Ian writes, the business sector is generally either a “bulwark against authoritarianism or its handmaiden.” In Hungary, it was very much the handmaiden.

Threats hit differently when they’re coming from the White House

Right now, Donald Trump is still a private citizen. He has no more legal power over ABC News than you or I (less, in fact — assuming you are also not a public figure). But in 31 days, that will change.

I suspect media outlets like ABC and their corporate overlords at places like Disney aren’t just thinking about defamation lawsuits right now; they’re also thinking about subpoenas and government contracts and indictments and regulatory retaliation and FCC licences.

Jonathan V. Last summarizes the situation well in The Bulwark:

What is capitulation going to look like going forward? Mainstream news outlets aren’t going to start fluffing Trump. The capitulation will look more like this:

(1) They’ll try to buy protection by employing Trump favorites. That’s what the LA Times did by bringing in Scott Jennings. Media companies will hope that by paying people who have access to Trump they can persuade Trump to leave them alone.

(2) They’ll cut down on platforming Trump critics who are in DGAF mode. Instead, they’ll favor tame critics who stay in the realm of normal kabuki theater.

(3) They’ll start leaving things unsaid.

JVL’s whole piece is really good. Read it here, paywall unlocked: Weakness is a Provocation.

Once the anticipatory obedience turns to autocratic capture, it’s difficult to go back.

The only way to survive is to push back — together

If this sounds terrifying, it’s because it is. But if it sounds like the smart thing for journalists and corporate executives to do is to run, hide, capitulate, and obey, it’s actually the opposite. The only way to survive long-term is to not back down.

If companies like Disney don’t cower in the face of attempted intimidation, they’re likely to win out under our current legal system — or at least avoid the worst outcomes. That’s what happened in Florida. That’s what happened to basically every other outlet Trump has sued for defamation.

But if Donald Trump succeeds in consolidating power long-term? The guarantees and protections that the legal system provides may go away. But the autocrat will still be there.

Returning to Ian and the example of Hungary:

The problem is that [everyone] will almost certainly be forced to confront autocratic capture at some point, only at a time of its choosing, not theirs…

The story of Hungarian media companies should be a cautionary one for American business. In the early 2000s, Origo was the most popular news site in Hungary, a success story of the first dot com boom. But as an independent media outlet, it failed to meet Orbán’s strict standards for political loyalty. So in order to coerce its public statements and political stances, first Orbán’s party subjected it to regulatory harassment and discriminatory government treatment, not unlike DeSantis’s moves against Disney... But Orbán didn’t stop there. Ultimately, he pressured Origo’s owners and several other media properties to sell to a government-controlled nonprofit affiliated with his regime.

Now, that’s unlikely to be a tactic deployed by Trump or DeSantis anytime soon, but it’s worth America’s business leaders considering where that leads. Because the victims were not just Hungarian voters who lost access to the kind of free and unbiased media necessary for democracy to function, Origo’s business owners fared poorly in the end too. The companies the nonprofit took over were collectively worth an estimated $100 million.

Their owners received nothing in compensation.

In other words, Disney may feel they bought themselves protection from Trump at a relative bargain (at least compared to $91 billion in annual revenues). But they didn’t — at most they bought themselves time, a temporary reprieve from the consequences of an authoritarian president.

But at the cost of making long-term ruin, for them and everyone else, more likely. Appeasement is no more likely to work if the sacrifice is $15 million and an apology than it is if it’s the Sudetenland.

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Most Americans oppose authoritarian agenda

The believability gap is arguably stronger than ever. A new Washington Post-University of Maryland poll finds solid majorities of Americans oppose Trump’s proposals to test the limits of democracy.

Here, from September, are our three strategies for getting over the believability gap.

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What else we’re tracking:

• Can democracy survive the disruptive power of AI? The Carnegie Endowment’s Raluca Csernatoni looks for answers.

• Chinese hackers may have compromised the entirety of U.S. cellular and text messaging systems. If you aren’t currently using encrypted platforms (iMessage, Signal, etc.), now would be a good time to start.

• What to expect in Trump 2.0. Jack Goldsmith and Bob Bauer have a new substack on executive power. They’re worth following.

• The latest survey from Bright Line Watch shows Republican voters suddenly trust our elections again (NYT coverage here). As always, so many interesting findings in these surveys. One encouraging signal: there’s been no equivalent appetite for conspiracy theories on the left: “83% of Democrats rate the 2024 outcome as legitimate versus 27% among Republicans in 2020.”

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Rest is essential

I deeply resonate with everything in this piece by Charles M. Blow on rest, rejuvenation, and tuning out: Temporarily disconnected from politics? Feel no guilt about it:

As Toni Morrison said in an interview long ago: “It’s not possible to constantly hone on the crisis. You have to have the love, and you have to have the magic. That’s also life.”

Or this, from one of my favorite writers, George Saunders: What to do? A self-directed pep talk:

I have this feeling a few times a day now: “I am not, at sixty-six years old, going to spend my time wailing and gnashing my teeth. I am going to really try to believe that, to be good, it helps to be happy (and vice versa). I’m going to try to be a model of happiness and positive engagement….of listening and trying to be fond of the parts of the world that I can still be fond of. And even the parts that I can’t, right now, be fond of (even those I am actively pissed-off with), I am going to try to bless with my genuine interest. But also (I continue, in this long mental aside, during which I may be, say, standing frozen on the sidewalk, muttering) I am not going to be a pushover or an ostrich with my head in the sand.

We have a very long and likely hard four years ahead of us. No one knows exactly what’s coming.

To that end, with the exception of some pre-scheduled content, we’ll be going quiet for much of the next two weeks. I plan to tune in to the things that bring me joy, light, and resilience.

I might encourage you to do the same.