The extended excerpts below are from D.C. Circuit Court of Appeals Senior Judge Laurence Silberman‘s rafter-rattling dissent from a 2-1 panel decision in a libel lawsuit that revolved around the Supreme Court’s 1964 landmark precedent in New York Times v. Sullivan. That case established the press’s First Amendment freedom to publish inaccurate information about public figures if it is done without actual malice. Such libel and defamation plaintiffs have since had the burden to prove that defendants knew their statements were false or otherwise published with reckless disregard for the truth. In addition to arguing that the plaintiffs in this case met that burden, Judge Silberman’s dissent eloquently and forcefully warns against dangers that media bias and censorship pose to American democracy and open debate. Post-deconstruction’s editor urges readers to scrutinize the rest of Judge Silberman’s dissent and the majority opinion released earlier today (Friday, Mar. 19). Written by Judge David Tatel and joined by Chief Judge Sri Srinivasan, the majority opinion seems to vindicate one of Judge Silberman’s key points — that too many judges court media and political popularity rather than adhere strictly to the Constititution — going preposterously out of its way to ignore obvious malice by the defendant in this case.
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The Majority . . . asserts that a publisher “need not accept denials, however vehement” as a matter of law. . . . This proposition is obviously fallacious. It of course depends on the substance and context of the denial. . . . Indeed, the Supreme Court—even while professing in dicta that the mere existence of a denial need not be considered—has evaluated the contents of denials to determine whether a publisher acted with actual malice. . . . And it has noted that certain key denials should reasonably be expected to kill stories.
. . . After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. . . . As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth . . . .
Nevertheless, I recognize how difficult it will be to persuade the Supreme Court to overrule such a “landmark” decision. After all, doing so would incur the wrath of press and media. . . . But new considerations have arisen over the last 50 years that make the New York Times decision (which I believe I have faithfully applied in my dissent) a threat to American Democracy. It must go.
. . . [But] Justice Kennedy [has] warned that “[w]e must guard against disdain for the judicial system,” i.e., the Supreme Court. . . . In his view, criticism of the Court is tantamount to an attack on the Constitution. He cautioned, “if the Constitution is to endure, it must from age to age retain ‘th[e] veneration which time bestows.’” . . . Apparently, maintaining a veneer of infallibility is more important than correcting fundamental missteps.
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. That is the real attack on the Constitution . . . . The notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate.
. . . One can understand, if not approve, the Supreme Court’s policy-driven [New York Times] decision. There can be no doubt that the . . . case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same [malice] rule.
As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. . . . But see Suzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions .
. . . 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. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.
As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) (“Within a few hours, Facebook announced that it would limit [a New York Post] story’s spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story.”).
. . . It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.
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Judge Silberman’s final footnote explains that “The reasons for press bias are too complicated to address here. But they surely relate to bias at academic institutions.”