One of America’s leading legal minds – a distinguished US federal judge appointed by Ronald Reagan – just shook the foundations of American libel law, declaring media bias so profound a complete rethink of media liability is necessary. Media must be held liable.
In a scathing, let-fly dissent, Judge Laurence Silberman – graduate of Dartmouth College, Harvard Law School, former Deputy Attorney General, Ambassador, lifetime friend of Justice Clarence Thomas, early Defense Policy Board and FISA Court member, recipient of the Presidential Medal of Freedom (George W. Bush) threw down the gauntlet.
In the process, he sent shivers through three professions, law, journalism, and public service. While dissent is not law, it can presage where the law is going. Silberman has a record for doing exactly that – especially constitutional law.
An opinion he wrote on the constitutionality of independent counsels, supported by Justice Scalia, proved prescient. His pathbreaking 2007 opinion declared DC’s ban on registration and carrying firearms a clear violation of the 2nd Amendment. The opinion – in a seminal case upholding gun rights – was affirmed by the US Supreme Court in DC v. Heller, 2008. He was ahead of the curve in upholding the Patriot Act and overturning Oliver North’s conviction. While Republican, he is a judicial conservative vice political, defending parts of Affordable Care.
All this is a prelude. The point is his opinions are farseeing, ritually tight, often right, have sharp edges for which he does not apologize, as a thoughtful reading of the law stands. Now, he has weighed in on media bias – the runaway tendency to a one-party rule created by partisan media.
The most surprising part of this epic dissent is it pulls no punches. If his dissent seeds wider discussion and reverses the prevailing law in time, the nation will be in his debt. Here it is. The case involved a 2018 public report accusing foreign officials of criminal activity, leading them to sue for defamation, libel when written, slander when spoken. They claimed they were libeled.
Although they did not prevail, Silberman’s dissent is a trumpet blast. He suggested the Supreme Court revisit a case every law student for 55 years has studied, imagined was unchangeable. In
New York Times v. Sullivan, the Court ruled public officials – including someone like President Trump – must prove “actual malice, that reporters knew facts were false or recklessly disregarded truth. Sounds easy, but in practice, that has been nearly impossible.
Silberman said, time to ditch the rule – open the door to holding media accountable for libeling innocent persons, including public officials. This is a shockwave, but the wave is made taller, impact greater, by the words he used to say the media’s “free pass” should be revoked.
He wrote: “New considerations have arisen over the last 50 years that make the New York Times decision … a threat to American Democracy. It must go.” Continuing: “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.”
No mincing words: “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.”
He named names. “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.”
Wow! Now that bell clanging. He then went after social media, saying they are filtering news “in ways favorable to the Democratic Party,” acting as censors and suppressing material information – in effect, essential for public decision making, including prior to the 2020 election.
“It is well-accepted that viewpoint discrimination ‘raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace, but ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.”
Here is exactly what much of America sees, fears, and wants fixed. We have watched the specter develop, grow into a tangled web of “viewpoint” suppression. Here is a federal judge who is saying enough, calling it unacceptable if our Republic is to survive.
Silberman was not yet done. Warms the heart to read his writing. “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” and “may even give rise to countervailing extremism.” Exactly right.
In closing: “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.” See, e.g., https://www.foxnews.com/media/federal-judge-laurence-silberman; https://nypost.com/2021/03/19/federal-judge-laurence-silberman-slams-media-accusing-it-of-left-wing-bias/.
Boom tick! Here is a judge who gets it, says it, makes clear that media defamation of innocents is impermissible. The days of permission to suppress, defame without consequence, may be numbered. Remember, this voice is heard, even sought, and seriously considered by the US Supreme Court. Laws change slowly, but sometimes a good shake can bring fruit. Ps – Who clerked for Judge Silberman years ago – one Justice Amy Coney Barrett.
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