A federal appeals court judge issued an extraordinary opinion Friday attacking partisan bias in the news media, lamenting the treatment of conservatives in American society and calling for the Supreme Court to overturn a landmark legal precedent that protects news outlets from lawsuits over reports about public figures.
D.C. Circuit Senior Judge Laurence Silberman’s diatribe, contained in his dissent in a libel case, amounted to a withering, frontal assault on the 1964 Supreme Court decision that set the framework for modern defamation law — New York Times v. Sullivan.
Silberman said the decision, requiring public figures to show “actual malice” to recover against a news organization for libel, was a “policy-driven” result that the justices simply invented out of whole cloth.
“The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication,” the Ronald Reagan appointee wrote.
Silberman echoed and approvingly cited an opinion Justice Clarence Thomas issued two years ago, questioning the rationale of New York Times v. Sullivan and calling for the high court to revisit the decision. “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law,” the judge wrote.
But the exceptional aspect of Silberman’s opinion was not its legal arguments, but the protracted airing of the judge’s evidently deep-seated, pent-up grievances that conservatives are being oppressed by overwhelmingly liberal news media, academia and technology companies. That has created “a frighteningly orthodox media culture,” he wrote.
“The increased power of the press is so dangerous today because we are very close to one-party control of these institutions,” the judge declared. “Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s….One-party control of the press and media is a threat to a viable democracy.”
Silberman slammed the New York Times and the Washington Post as “virtually Democratic Party broadsheets.” He added: “Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.”
Silberman acknowledged the existence of conservative outlets such as Fox News, but warned of “serious efforts to muzzle” the network. He did not explain further.
Silberman also specifically decried Twitter’s decision prior to last fall’s election to ban links to a New York Post story relaying allegations about the contents of a computer that once belonged to Hunter Biden, the son of President Joe Biden. The judge cited that as an example of how Silicon Valley “filters news delivery in ways favorable to the Democratic Party.”
The judge also took sides in the ongoing public debate about the duties of social media companies, arguing that they are morally obligated to allow free expression and a diversity of views. Arguments that the platforms are private businesses and not legally obliged to follow First Amendment standards may be right, the judge said, but don’t absolve social media outlets from engaging in what he termed “censorship.”
“Repression of political speech by large institutions with market power…is—I say this advisedly—fundamentally un-American,” Silberman wrote. “As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions.”
Silberman did not delve into the reasons for liberal bias in the media, but declared in a footnote that “they surely relate to bias at academic institutions.”
Whether Silberman’s views about the media are widely held by conservative judges is unclear, but there has been no groundswell of support in the courts for the notion of overruling the protections for the press that the Supreme Court established a half-century ago. While judges of various ideological stripes seem less deferential to the media now than judges of a few decades ago, the basic underpinnings of the “actual malice” standard do not appear likely to be displaced anytime soon.
The vehicle for Silberman’s blistering judicial rant was a libel suit two former Liberian government officials filed against a human rights group, Global Witness, over a report the officials said implied they had taken bribes in connection with an oil contract.
The majority on the D.C. Circuit panel found the case fairly straightforward under existing precedents, concluding that Global Witness was protected by the “actual malice” standard because it had no persuasive indication that its report was false at the time it was published. The officials’ denials of wrongdoing were insufficient to suggest that the report was probably false, Judge David Tatel wrote in an opinion joined by Judge Sri Srinivasan.
Tatel recoiled at some of Silberman’s rhetoric, including his description of the majority’s legal conclusions as “obviously fallacious.”
Tatel also warned that arguments the Liberian officials put forward in the case had “breathtaking” implications and “would find support for an inference of actual malice in a wide swath of investigative journalism that turns out to be critical of its subject.”
Both judges in the majority are Democratic appointees. Tatel is an appointee of President Bill Clinton, while Srinivasan was appointed by President Barack Obama.
Silberman’s views about partisan bias in the media are clearly deep-seated and long-held. His opinion cites a speech he gave nearly 30 years ago decrying what he viewed as a tendency by judges to refrain from making tough decisions that might be poorly received by the liberal press. Speaking to the conservative Federalist Society in 1992, the judge branded such fears as the “Greenhouse effect,” taking the name from the New York Times court reporter of that era, Linda Greenhouse. The judge also specifically faulted attorneys-turned-reporters who cover the courts.
"The truth is that the lawyer-reporters are among the most unbalanced, the least abashed, at asserting the value of judicial activism," Silberman said, according to an account in the Times. (Neither of the Times’ Supreme Court reporters at that time was an attorney.)
The judge’s opinion also contains some passages that could be viewed as insubordinate, or at least disrespectful, to the Supreme Court. Silberman, 85, made clear that he relished the opportunity and did not shy away from it.
“To the charge of disdain, I plead guilty. I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb,” the judge wrote. “That is the real attack on the Constitution, in which—it should go without saying—the Framers chose to allocate political power to the political branches. The notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate.”
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