In a 23-page dissent, Judge Laurence Silberman called the news media a ‘threat to democracy,’ and assaulted the high-court decision that allows protections for the press.
WASHINGTON (CN) — A federal appeals court judge called on the Supreme Court to overturn foundational first amendment case New York Times v. Sullivan Friday, in an astounding dissent which attacked partisan bias in the news media, during an otherwise ordinary libel case.
D.C. Circuit Senior Judge Laurence Silberman, a Ronald Reagan appointee, called the New York Times and The Washington Post “Democratic Party broadsheets,” with the Wall Street Journal leaning in the same direction, and almost every large paper, network and radio station across the country following suit as a “Democratic Party trumpet.”
No news outlets were parties in the run-of-the-mill lawsuit, which was brought by two former Liberian officials who sued Global Witness, an environmental group, for publishing a report which suggested they had accepted bribes.
Judge David Tatel, a Clinton-appointee, threw the lawsuit out in a 2-1 decision, after determining that Global Witness had not acted with “actual malice” — while Siberman said the environmental group got off too easy: they should not have been protected under New York Times v. Sullivan.
Silberman said that the 1964 precedent, which requires parties suing media outlets for libel to show that the false report was published with actual malice — or a reckless disregard for the truth — was a “policy-driven” decision that was “cut from whole cloth.”
Critics have long claimed that the decision has made it too difficult for public figures to sue for defamation.
He noted that Justice Clarence Thomas had also called on the Supreme Court to revisit the landmark case two years ago, and had written that the decision was “masquerading as constitutional law.”
Silberman’s pent-up grievances were on full display in his 23-page dissent, as he wrote that within a “frighteningly orthodox media culture,” only Fox News, The New York Post and The Wall Street Journal’s editorial page are outside of the Democratic Party’s “ideological control.”
“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,” Silberman lamented.
Silberman also launched into an attack on Silicon Valley, which he says censors Republican viewpoints. The judge wrote that although he doesn’t take a position on the legality of social media’s censorship — as the companies are private and not subject to the First Amendment — he believes that the First Amendment is not an adequate excuse for bias.
“Repression of political speech by large institutions with market power therefore 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.”
He ended with a call for caution: “The first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news.”
Circuit Judge Sri Srinivasan, a Barack Obama appointee, rounded out the panel.