Judge Silberman is Sorely Confused

A strange attack on NYT v. Sullivan

I’m Scott Nover. Welcome back to Pressing, a newsletter about press freedom. If you haven’t yet subscribed, you can do so here and receive this letter in your inbox every Tuesday morning.

This is the 68th issue of Pressing and it’s great to have you with me. Please send me feedback, thoughts, suggestions, and tips at sgnover@gmail.com.

Judge Silberman is Sorely Confused

“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,” a judge wrote, quite correctly, in a recent dissenting opinion.1

From there he devolved: “It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy.”

I think it’s safe to say Judge Laurence Silberman doesn’t like the American press. He thinks it’s biased. He thinks it’s controlled by “one party”—guess which one. He thinks the Democrats, the media and Silicon Valley are in cahoots. And he thinks this combination of factors—dare I say this conspiracy of epic proportions—is a threat to American democracy.

Through this lens, Silberman authored a dizzying dissenting opinion from his perch at the U.S. Court of Appeals for the D.C. Circuit. The case was a defamation appeal from two Liberian officials who sued the human rights nonprofit Global Witness over a report claiming they accepted bribes from Exxon Mobil.

But for public officials the standard for defamation lawsuits is higher than for the standard for run-of-the-mill citizens who feel they’ve been slandered or libeled. Public officials—or public figures for that matter—need to demonstrate actual malice, a legal standard that involves demonstrating that the speaker—in this case Global Witness—acted with “knowledge that it was false or with reckless disregard of whether it was false or not.”2

That brings us to New York Times Co. v. Sullivan, the landmark Supreme Court case from 1964 that established this standard.3 Surprise, surprise. Judge Silberman is not a fan.

Here’s a list of things Judge Silberman believes, according to this opinion:

  • The Sullivan ruling should be overturned.

  • “ Justice [Clarence] Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law.”

  • Overturning the ruling would be unlikely in part because doing so would “incur the wrath of press and media.”

  • Sullivan has “increased the power of the media” and “allows the press to cast false aspersions on public figures with near impunity.”

  • America is “very close to one-party control” of the media.

  • 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 Associated Press, “most large papers across the country,” “nearly all television” (which he calls a “Democratic Party trumpet”), and the “government-supported” National Public Radio all skew left.

  • Silicon Valley has an “enormous influence over the distribution of news” and “filters news delivery in ways favorable to the Democratic Party.”

  • Fox News, The New York Post, and The Wall Street Journal’s editorial page are the only non-liberal news outlets. (“It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son.”)

  • The First Amendment “is not an adequate excuse for big tech’s bias,” and “repression of political speech by large institutions with market power” is “fundamentally un-American.”


Dear readers of this newsletter, I hope I don’t need to enumerate for you the ways in which this kind of thinking is bonkers. If you’ve stuck with me for any stretch of time in the nearly two years I’ve been writing this newsletter, then we are probably on the same page.

But I’ll leave you with a few thoughts: First, this isn’t really a legal takedown of Sullivan as much as it is a wide-ranging list of grievances about media and technology companies that reflect a Hannity-esque4, or Trumpian5, ideology.

The planet in which Judge Silberman resides sounds truly frightful. There is a far-reaching cabal of liberal journalists dead-set on advancing a core set of beliefs that will completely plunge the country into the throes of authoritarianism.

The backdrop of the case—which is about bribe-taking Liberian officials lest we forget—is irrelevant. Since Sullivan is relevant, the esteemed jurist took it upon himself to add a few thoughts on his own about why the media is bad—and, I presume, should be more easily sued. (Shall I point out the irony that he leans on articles by Politico and The Atlantic, among others, to make his claims?)

Judge Silberman is not alone, unfortunately. Justice Clarence Thomas offered a shockingly similar attack on Sullivan a couple of years ago, calling the case and those supporting it “policy-driven decisions masquerading as constitutional law.”6 Justice Antonin Scalia said he abhorred the Sullivan decision:

“You can libel public figures at will so long as somebody told you something, some reliable person told you the lie that you then publicized to the whole world — that’s what New York Times v. Sullivan says.”

But, the protections that Sullivan offers are crucial for the free press, and that’s pretty much withstood the test of time.

One of the main roles of reporters—as clichéd as it may sound—is to hold power to account. In that spirit, and one consistent with the First Amendment, the Court has long held that government officials and public figures are held to a very high standard for what constitutes defamation. A court needs to find that a speaker knew what they were publishing or saying was false—or that they really, really, really didn’t care whether it was true or false—in order for a government official or public figure to win a defamation suit.

Without Sullivan, journalists could be found liable for every unflattering thing they write about a politician or celebrity.

If Silberman wished to advance a historically founded argument as to why the First Amendment was never intended to provide these sorts of protections to press, then I would read with keen interest.

He didn’t do that.

Read smarter take-downs of the good Judge Silberman here:

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