One D.C. Circuit jurist pulled no punches as he sounded the alarm on ‘one-party control of the press and media.’
One D.C. Circuit jurist pulled no punches as he sounded the alarm on ‘one-party control of the press and media.’
‘T he flak only gets heavy when you’re over the target.” This oft-cited World War II fighter-pilot wisdom is the best way to understand the strident reaction to Judge Laurence Silberman, the formidable senior jurist on the D.C. Circuit Court of Appeals, as a result of the dissent he filed in a recent libel case.
In the course of controversially urging the Supreme Court to reconsider the foundation of its modern libel jurisprudence, New York Times v. Sullivan (1964), Judge Silberman had the audacity to notice that the mainstream media function as an adjunct of the Democratic Party. When this development is combined with the activist progressivism of Silicon Valley techies who control social-media platforms, the result, he concluded, is “one-party control of the press and media.” This “threat to a viable democracy” is apt to lead “to countervailing extremism” — hard to argue with that these days.
Silberman’s point was that, without constitutional justification, the Supreme Court’s judicially legislated federalization of libel law substantially enhanced the power of the press. New York Times v. Sullivan supplanted the traditional state common law of defamation with a rule, speciously claimed to be mandated by the First Amendment, that requires defamed public figures to prove actual malice — i.e., to prove that any libelous statements were intentionally false or made with reckless disregard for their falsity. This daunting burden makes it virtually impossible for public figures — including private persons who are transmogrified into celebrities by the Supreme Court’s jurisprudence — to sue successfully, even in cases where they have been slandered with false information.
This might not be a terrible result if the media were scrupulously non-partisan. But once the media and other channels of information exchange become adjuncts of one political party, the Court’s standard creates an incentive to portray the opposition party in the worst light, knowing that any misimpressions thereby created and any reputational damage will not be actionable.
More to the point, whatever one thinks of the policy choice that it is better to encourage more reporting, rather than accurate reporting — such choices are for legislatures to make, not the courts.
On that score, Judge Silberman was neither breaking new ground nor going out on a wild limb.
As he points out, in 2019, Justice Clarence Thomas called for a revisiting of the Court’s libel jurisprudence. The case was McKee v. Cosby, which arose out of comments made on behalf of celebrity comic Bill Cosby, denying a woman’s decades-old rape allegations. Ms. McKee challenged a federal district court’s finding that she qualified as a public figure, based on which her lawsuit was thrown out. Because this finding was a faithful application of Supreme Court teaching on that question, Justice Thomas concurred in his fellow justices’ decision to decline to hear the case. Yet, he urged that, in an appropriate future case, the Court should reconsider its New York Times precedent.
As Thomas explained, that decision is a vestige of an era whose passing we should not mourn: when the activist Supreme Court of the Sixties and Seventies deemed itself empowered to enact progressive policy from the bench, regardless of whether the policies so imposed were founded on constitutional principles, including separation of powers — between the Court and the political branches, and between the federal and state governments.
The ruling was a double whammy of judicial overreach: The case could easily have been decided on the lack of evidence without policy considerations, but the justices first improperly forged into the policy arena; then, they made up a new standard, deracinated from the Constitution and nearly two centuries of libel law.
At issue was a full-page ad the Times ran, which falsely accused Alabama police of various abuses against Dr. Martin Luther King Jr. and the Civil Rights Movement. The Times eventually retracted the ad. State public-affairs commissioner L. B. Sullivan brought a defamation suit against the paper in Alabama. He was awarded half a million dollars. The Supreme Court reversed, however, reasoning that the ad, an attack on “impersonal government operations,” had not mentioned Sullivan by name or position, and thus could not have been libelous of him personally.
That should have been the end of the matter since nothing more was necessary to decide the case. Yet the Court decided to go further: a disquisition on the purported tension between the Constitution and a state’s power to award libel damages. It considered various policy options, consulted sources of varying degrees of authoritativeness, and presumed to decree a new “federal rule” that
prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
As Justice Thomas detailed, the Court’s creative new standard was not required by the Constitution. The First Amendment was never conceived as having displaced the common law of libel. As the Court observed in Chaplinsky v. New Hampshire (1942), defamation was among a few narrowly limited categories of speech that had never been thought to raise constitutional problems. States liberally applied civil and even criminal libel law before and after ratification of both the First and (later) 14th Amendments, with no suggestion that those amendments altered defamation standards. Nevertheless, the New York Times decision not only imposed a new federal rule but one that marked a dramatic departure from common-law libel principles.
Judge Silberman persuasively concludes that the Court manufactured its “actual malice” standard in order to facilitate the media’s coverage of the heinous discrimination and malicious treatment faced by black people in the Jim Crow South. Indeed, the decision was hailed at the time — by the media, naturally — as a triumph for racial equality. As is often the case, Silberman notes, one can understand the motivation for “Court’s policy-driven decision.” But that did not make it right for the Court to usurp such power. In particular, it does not justify the turbo-charging of media power that has resulted, influencing contexts far removed from the civil-rights struggle.
To be sure, there are some haymakers in Silberman’s dissent. The judge has served on the federal appeals court for 36 years and, at 85, is past the point of mincing words (which was never his style, in any event).
He opines that media bias against the Republican Party, a “secular trend” he traces to the 1970s if not earlier, is today “shocking.” He describes the Times and the Washington Post as “virtually Democratic Party broadsheets,” which play pied piper for the vast majority of major media outlets. Bolstering this phenomenon is “Silicon Valley,” which “similarly filters news delivery in ways favorable to the Democratic Party.” In a footnote Silberman asks, “Who can forget Candy Crowley’s debate moderation?” — recalling the former CNN correspondent’s coming to President Obama’s rescue in 2012 when GOP candidate Mitt Romney was scoring national-security points.
Silberman cites Supreme Court authority for the proposition that discrimination based on partisan and ideological considerations “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” To be sure, the press, unlike the government, is not bound by a First Amendment proscription against suppression of political speech based on the viewpoint it expresses. Nevertheless, “ideological homogeneity,” enforced by those who control the “channels of information distribution,” has the effect of “repress[ing] ideas from the public consciousness just as surely as if access were restricted by the government.” This development has had concrete political implications: Citing Professor Tim Groseclose’s book, Left Turn: How Liberal Media Bias Distorts the American Mind, Silberman posits that “in the typical election,” Democratic candidates get an eight-to-ten point advantage — and that decade-old Groseclose finding came long before our current era, when “the press and media do not even pretend to be neutral news services.”
Silberman concedes that “there are a few notable exceptions to Democratic Party ideological control: Fox News, the New York Post, and The Wall Street Journal’s editorial page.” (Full disclosure: I am a Fox News contributor.) But the judge is alarmed that these outlets are jointly “controlled by a single man and his son” — a reference to the Murdoch family. Noting what he sees as “serious efforts to muzzle Fox News,” he wonders whether “a lone holdout [will] remain in what is otherwise a frighteningly orthodox media culture?”
To be clear, Silberman does not accuse the media, Big Tech, or, for that matter, government officials, of violating the law. He is making a policy argument. If that upsets you, then welcome to the world of originalist legal thinkers (including Silberman), who have been arguing for half a century that judges should not base legal rulings on their subjective policy predilections.
The common thread of Warren and Burger Court precedents that progressives regard as totemic — New York Times, Roe v. Wade, Miranda v. Arizona, and so on — is that jurists arrogated power to impose their own liberal pieties. They made policy as if they were a super-legislature: dictating new standards absent the need for compromise and consensus — those nettlesome inconveniences that prevent elected, politically accountable legislatures from executing radical policy shifts. Moreover, because the Court, rather than Congress, decreed these new standards, they bore the counterfeit imprimatur of constitutional standing, making them nearly impossible to reverse unless the Court deigns to revisit them.
The difference between Silberman and the activist Left is that the judge is not arguing for the imposition of his own policy preference. He contends that the judiciary must be limited to decision-making that is rooted in the Constitution as it was understood when the provisions germane to a case were adopted. He is not claiming it would be impermissible for state governments to adopt standards that insulate the press from some varieties of defamation claims. He is not even saying that the federal government is barred from developing such standards, assuming that Congress can locate a sound constitutional premise for doing so. Silberman is saying that the Supreme Court had no legitimate basis for imposing the will of an activist majority in New York Times v. Sullivan, and that the resulting pendulum swing to media immunity from suit has had a toxic effect on American politics: The press and the powers behind social media have become unabashed tribunes of the Democratic Party.
Silberman’s dissent closes with a clarion call: “[T]he first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news.” The First Amendment aspires to counter this tyrannical specter. By “foster[ing] a vibrant trade in ideas,” it ensures that diverse voices can compete. By thus facilitating a “viable democracy,” it discourages the “countervailing extremism” that inevitably erupts against “one-party control of the press and media.”
Once the media become biased, the free exchange of ideas on which a functioning democracy depends is distorted. And when the media fully commit to this distortion by joining one partisan side, “unjustified legal rules” that enhance media power are not tolerable.
Judge Silberman has that right.