A Reagan-appointed federal judge gave a fiery dissent on Friday, blasting the left-wing bias in the media and calling for a landmark Supreme Court decision to be overturned.
U.S. Circuit Judge Laurence H. Silberman, dissenting in a libel case before his court, said that the SCOTUS precedent in New York Times v. Sullivan allowed for rampant press “bias against the Republican Party” and has fostered a media environment of near “one-party control” that posed “a threat to a viable democracy.”
— JC (@jcc713) March 19, 2021
Silberman Dissent: SCOTUS Precedent ‘Policy-Driven Decision Masquerading As Constitutional Law’
Silberman said it was problematic that the Supreme Court was unwilling to revisit precedent and the news media in a dissent in the defamation case of Tah v. Global Witness.
After dissenting against the court majority’s ruling on the merits of this case, Silberman said he was “prompted to urge the overruling of New York Times v. Sullivan.”
Sullivan is a landmark ruling decided in 1964 that cemented that plaintiffs seeking to sue publishers for defamation or libel must show proof of “actual malice.”
This precedent has made it very difficult for people to take successful legal action against news outlets that produce false reporting.
But on Friday, Silberman called it “policy-driven decision masquerading as constitutional law” that “badly constitutionalized an area of law refined over centuries of common law adjudication.”
Silberman said that he understood that the Supreme Court is unlikely to reverse its opinion, yet still added that he believed “new considerations have arisen over the last 50 years that make the New York Times decision a threat to American Democracy. It must go.”
Specifically, Sullivan has allowed left-wing media bias to run rampant, without consequences, to Silberman’s thinking.
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. 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. It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.
Read this amazing section from Judge Silberman's dissent today in a defamation case before the DC Circuit: on how an increasingly ideologically homogenized US media is not only threatening core free speech values, but also the ability to be informed:https://t.co/a220vqwiD5 pic.twitter.com/LGYsqPWDIM
— Glenn Greenwald (@ggreenwald) March 19, 2021
Silberman takes aim at the major mainstream outlets of today:
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.
Silberman: “Threat To Democracy”
All of this is a threat to democracy, according to Silberman:
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…
And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8–10% in the typical election… 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.
While these comments may not seem new to readers, that a sitting federal judge made the argument so stridently in an official dissent is striking.
D.C. Circuit Judge Silberman just released a truly wild dissent calling on the Supreme Court to overturn New York Times v. Sullivan, claiming NYT and WaPo are "virtually Democratic Party broadsheets," and accusing "big tech" of censoring conservatives. https://t.co/NvFli5sEso pic.twitter.com/mTMklTlNfo
— Mark Joseph Stern (@mjs_DC) March 19, 2021
Silberman took apart media groupthink and bias.
“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 wrote.
“The First Amendment guarantees a free press to foster a vibrant trade in ideas,” Silberman wrote. “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” he finished.
Silberman’s dissent is much longer than the excerpts here, coming in at 23 pages.
I suggest, dear reader, that you read the whole thing.
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