Jim Bratten
In an important dissent, U.S. Circuit Judge Laurence Silberman launched a broadside attack on Supreme Court precedent that protects the leftist press and warned that the current state of media is “a threat to a viable democracy.”
As reported by Chris Pandolfo in Blaze Media, Circuit Judge Silberman “called for a landmark Supreme Court decision on freedom of the press and libel laws to be overturned…” He decried “‘bias against the Republican Party,’ blasting the virtual ‘one-party control’ of legacy news media.”
Reagan-appointee Silberman was “prompted to urge the overruling of New York Times v. Sullivan” as he castigated the Supreme Court’s reluctance to revisit precedent. Sullivan established what a plaintiff must prove to claim defamation or libel against a publisher. That ruling made it nearly impossible for anyone to successfully sue the press for false reporting. Silberman called it a “policy-driven decision masquerading as constitutional law.”
New York Times v. Sullivan was a decision from the civil rights era that bestowed additional First Amendment protections to the media to fight defamation or libel lawsuits. In the 1960s, the Times printed an ad full of inaccuracies and claims against the Montgomery, Alabama police—things they had not done. Montgomery Public Safety Commissioner Sullivan sued the Times for defamation and the case went all the way to the Supreme Court, which ruled unanimously for the Times. Since then, we’ve dealt with an increasingly monopolistic press.
The Court had, in effect, established a qualifier for processing defamation or libel claims—the plaintiff had to show “actual malice” on the part of the defendant. Silberman said, “There can be no doubt that the New York Times case has increased the power of the media.” But, the judge wrote, “…that power is now abused.” He elaborated, “As the case [Sullivan] has…been interpreted, it allows the press to cast aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon…” But the press, he observed, “more often manufactures scandals involving political conservatives.”
The judge continued, “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.” He explained that “bias against the Republican Party” has been around for some time and singled out the New York Times and the Washington Post as “virtually Democrat Party broadsheets.” Other prominent news outlets and most of network and cable TV acted as “a Democrat Party trumpet,” he added.
Then Silberman addressed the way Silicon Valley “filters news delivery in ways favorable to the Democrat Party.” He mentioned how Facebook and Twitter had censored the Hunter Biden laptop story, calling it “viewpoint discrimination.”
He strongly warned of an “ideological homogeneity” in our media, concluding that: “[T]he first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news… one-party control of the press and media is a threat to a viable democracy…The First Amendment guarantees a free press to foster a vibrant trade in ideas. But… 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.”
Judge Silberman exposed the virtual monopoly of the “Democrat Media” and the abuse of power that will worsen if this “one-party control of the press” stands.
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