Paul L. Caron
Dean





Saturday, March 20, 2021

D.C. Circuit Judge Laurence Silberman Urges Supreme Court To Overrule NY Times v. Sullivan, Calls Media Anti-GOP ‘Threat To Democracy’

Bloomberg, Federal Judge Says Media Is Anti-GOP ‘Threat to Democracy’:

A conservative judge on the influential federal appeals court in Washington used his dissent in a defamation case to lambaste most U.S. media outlets for trumpeting “shocking” anti-Republican views and call for libel laws to be revised to make it easier to sue the press.

The New York Times and The Washington Post are “virtually Democratic Party broadsheets,” while the news section of the Wall Street Journal “leans in the same direction,” U.S. Circuit Judge Laurence Silberman said. He said the major television outlets and Silicon Valley giants were similarly biased.

“One-party control of the press and media is a threat to a viable democracy,” Silberman wrote. He exempted from his criticism of “Democratic ideological control” Fox News, The New York Post, and The Wall Street Journal’s editorial page. But he lamented that these outlets are “controlled by a single man and his son,” a reference to Rupert and Lachlan Murdoch, and questioned how long they could hold out.

Tah v. Global Witness Publishing, No. 19-7132 (D.C. Cir. Mar. 19, 2021):

SILBERMAN, Senior Circuit Judge, dissenting in part: ...
My disagreement with the district court is limited to the actual malice question (my disagreement with the Majority is much broader). In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court set forth the well-known rule that, to hold a defendant liable for defaming a public figure, plaintiff must prove the defendant acted with “actual malice.” Id. at 279–80. That is, with knowledge that the statement was false or with reckless disregard for the truth. Id. at 280. As the Supreme Court saw it, this scienter requirement appropriately balanced (as a policy matter) the vindication of reputational harms with the need to protect unintentional falsehoods that inevitably arise as part of vibrant debate. Id. at 271–72. The actual-malice rule makes the speaker’s state of mind the constitutional gravamen in any defamation case brought by a public figure. ...

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. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone. ...

One can understand, if not approve, the Supreme Court’s policy-driven decision. There can be no doubt that the New York Times 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 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. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). 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. Our court was once concerned about the institutional consolidation of the press leading to a “bland and homogenous” marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.

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 is well-accepted that viewpoint discrimination “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 387 (1992). 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.

To be sure, 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. It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? After all, there are serious efforts to muzzle Fox News. And although upstart (mainly online) conservative networks have emerged in recent years, their visibility has been decidedly curtailed by Social Media, either by direct bans or content-based censorship.

There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. That was empirically and persuasively demonstrated in Tim Groseclose’s insightful book, Left Turn: How Liberal Media Bias Distorts the American Mind (2011). Professor Groseclose showed that media bias is significantly to the left. Id. at 192–197; see also id. at 169–77. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8–10% in the typical election. Id. at ix, 201–33. And now, a decade after this book’s publication, the press and media do not even pretend to be neutral news services.

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.

https://taxprof.typepad.com/taxprof_blog/2021/03/dc-circuit-judge-laurence-silberman-urges-supreme-court-to-overrule-ny-times-v-sullivan-calls-media-.html

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