By Andrew C. McCarthy
Saturday, April 03, 2021
‘The flak only gets heavy when you’re over the
target.” This oft-cited World War II fighter-pilot wisdom is the best way to
understand the strident reaction to Judge Laurence Silberman, the formidable
senior jurist on the D.C. Circuit Court of Appeals, as a result of the dissent he filed in a recent libel case.
In the course of controversially urging the Supreme Court
to reconsider the foundation of its modern libel jurisprudence, New
York Times v. Sullivan (1964), Judge Silberman had the audacity to
notice that the mainstream media function as an adjunct of the Democratic
Party. When this development is combined with the activist progressivism of
Silicon Valley techies who control social-media platforms, the result, he
concluded, is “one-party control of the press and media.” This “threat to a
viable democracy” is apt to lead “to countervailing extremism” — hard to argue
with that these days.
Silberman’s point was that, without constitutional
justification, the Supreme Court’s judicially legislated federalization of
libel law substantially enhanced the power of the press. New York Times
v. Sullivan supplanted the traditional state common law of defamation
with a rule, speciously claimed to be mandated by the First Amendment, that
requires defamed public figures to prove actual malice — i.e.,
to prove that any libelous statements were intentionally false or made with
reckless disregard for their falsity. This daunting burden makes it virtually
impossible for public figures — including private persons who are
transmogrified into celebrities by the Supreme Court’s jurisprudence — to sue
successfully, even in cases where they have been slandered with false
information.
This might not be a terrible result if the media were
scrupulously non-partisan. But once the media and other channels of information
exchange become adjuncts of one political party, the Court’s standard creates
an incentive to portray the opposition party in the worst light, knowing that
any misimpressions thereby created and any reputational damage will not be
actionable.
More to the point, whatever one thinks of the policy choice
that it is better to encourage more reporting, rather than accurate
reporting — such choices are for legislatures to make, not the courts.
On that score, Judge Silberman was neither breaking new
ground nor going out on a wild limb.
As he points out, in 2019, Justice Clarence Thomas called
for a revisiting of the Court’s libel jurisprudence. The case was McKee v. Cosby, which arose out of comments made on
behalf of celebrity comic Bill Cosby, denying a woman’s decades-old rape allegations.
Ms. McKee challenged a federal district court’s finding that she qualified as a
public figure, based on which her lawsuit was thrown out. Because this finding
was a faithful application of Supreme Court teaching on that question, Justice
Thomas concurred in his fellow justices’ decision to decline to hear the case.
Yet, he urged that, in an appropriate future case, the Court should reconsider
its New York Times precedent.
As Thomas explained, that decision is a vestige of an era
whose passing we should not mourn: when the activist Supreme Court of the
Sixties and Seventies deemed itself empowered to enact progressive policy from
the bench, regardless of whether the policies so imposed were founded on
constitutional principles, including separation of powers — between the Court and
the political branches, and between the federal and state governments.
The ruling was a double whammy of judicial overreach: The
case could easily have been decided on the lack of evidence without policy
considerations, but the justices first improperly forged into the policy arena;
then, they made up a new standard, deracinated from the Constitution and nearly
two centuries of libel law.
At issue was a full-page ad the Times ran,
which falsely accused Alabama police of various abuses against Dr. Martin
Luther King Jr. and the Civil Rights Movement. The Times eventually
retracted the ad. State public-affairs commissioner L. B. Sullivan brought a
defamation suit against the paper in Alabama. He was awarded half a million
dollars. The Supreme Court reversed, however, reasoning that the ad, an attack
on “impersonal government operations,” had not mentioned Sullivan by name or
position, and thus could not have been libelous of him personally.
That should have been the end of the matter since nothing
more was necessary to decide the case. Yet the Court decided to go further: a
disquisition on the purported tension between the Constitution and a state’s
power to award libel damages. It considered various policy options, consulted
sources of varying degrees of authoritativeness, and presumed to decree a new
“federal rule” that
prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless
he proves that the statement was made with “actual malice” – that is, with
knowledge that it was false or with reckless disregard of whether it was false
or not.
As Justice Thomas detailed, the Court’s creative new
standard was not required by the Constitution. The First Amendment was never
conceived as having displaced the common law of libel. As the Court observed
in Chaplinsky v. New Hampshire (1942), defamation
was among a few narrowly limited categories of speech that had never been thought
to raise constitutional problems. States liberally applied civil and even
criminal libel law before and after ratification of both the First and (later)
14th Amendments, with no suggestion that those amendments altered defamation
standards. Nevertheless, the New York Times decision not only
imposed a new federal rule but one that marked a dramatic departure from
common-law libel principles.
Judge Silberman persuasively concludes that the Court
manufactured its “actual malice” standard in order to facilitate the media’s
coverage of the heinous discrimination and malicious treatment faced by black
people in the Jim Crow South. Indeed, the decision was hailed at the time — by
the media, naturally — as a triumph for racial equality. As is often the case,
Silberman notes, one can understand the motivation for “Court’s policy-driven
decision.” But that did not make it right for the Court to usurp such power. In
particular, it does not justify the turbo-charging of media power that has
resulted, influencing contexts far removed from the civil-rights struggle.
To be sure, there are some haymakers in Silberman’s
dissent. The judge has served on the federal appeals court for 36 years and, at
85, is past the point of mincing words (which was never his style, in any
event).
He opines that media bias against the Republican Party, a
“secular trend” he traces to the 1970s if not earlier, is today “shocking.” He
describes the Times and the Washington Post as
“virtually Democratic Party broadsheets,” which play pied piper for the vast
majority of major media outlets. Bolstering this phenomenon is “Silicon
Valley,” which “similarly filters news delivery in ways favorable to the
Democratic Party.” In a footnote Silberman asks, “Who can forget Candy
Crowley’s debate moderation?” — recalling the former CNN correspondent’s coming
to President Obama’s rescue in 2012 when GOP candidate Mitt Romney was scoring
national-security points.
Silberman cites Supreme Court authority for the
proposition that discrimination based on partisan and ideological
considerations “raises the specter that the Government may effectively drive
certain ideas or viewpoints from the marketplace.” To be sure, the press,
unlike the government, is not bound by a First Amendment proscription against
suppression of political speech based on the viewpoint it expresses.
Nevertheless, “ideological homogeneity,” enforced by those who control the “channels
of information distribution,” has the effect of “repress[ing] ideas from the
public consciousness just as surely as if access were restricted by the
government.” This development has had concrete political implications: Citing
Professor Tim Groseclose’s book, Left Turn: How Liberal Media Bias Distorts the American Mind,
Silberman posits that “in the typical election,” Democratic candidates get an eight-to-ten
point advantage — and that decade-old Groseclose finding came long before our
current era, when “the press and media do not even pretend to be neutral news
services.”
Silberman concedes that “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.”
(Full disclosure: I am a Fox News contributor.) But the judge is alarmed that
these outlets are jointly “controlled by a single man and his son” — a reference
to the Murdoch family. Noting what he sees as “serious efforts to muzzle Fox
News,” he wonders whether “a lone holdout [will] remain in what is
otherwise a frighteningly orthodox media culture?”
To be clear, Silberman does not accuse the media, Big
Tech, or, for that matter, government officials, of violating the law. He is
making a policy argument. If that upsets you, then welcome to the world of
originalist legal thinkers (including Silberman), who have been arguing for
half a century that judges should not base legal rulings on their subjective
policy predilections.
The common thread of Warren and Burger Court precedents
that progressives regard as totemic — New York Times, Roe
v. Wade, Miranda v. Arizona, and so on — is that jurists
arrogated power to impose their own liberal pieties. They made policy as if
they were a super-legislature: dictating new standards absent the need for
compromise and consensus — those nettlesome inconveniences that prevent
elected, politically accountable legislatures from executing radical policy
shifts. Moreover, because the Court, rather than Congress, decreed these new
standards, they bore the counterfeit imprimatur of constitutional standing,
making them nearly impossible to reverse unless the Court deigns to revisit them.
The difference between Silberman and the activist Left is
that the judge is not arguing for the imposition of his own policy preference.
He contends that the judiciary must be limited to decision-making that is
rooted in the Constitution as it was understood when the provisions germane to
a case were adopted. He is not claiming it would be impermissible for state
governments to adopt standards that insulate the press from some varieties of
defamation claims. He is not even saying that the federal government is barred
from developing such standards, assuming that Congress can locate a sound
constitutional premise for doing so. Silberman is saying that the Supreme Court
had no legitimate basis for imposing the will of an activist majority in New
York Times v. Sullivan, and that the resulting pendulum swing to media
immunity from suit has had a toxic effect on American politics: The press and
the powers behind social media have become unabashed tribunes of the Democratic
Party.
Silberman’s dissent closes with a clarion call: “[T]he
first step taken by any potential authoritarian or dictatorial regime is to
gain control of communications, particularly the delivery of news.” The First
Amendment aspires to counter this tyrannical specter. By “foster[ing] a vibrant
trade in ideas,” it ensures that diverse voices can compete. By thus
facilitating a “viable democracy,” it discourages the “countervailing
extremism” that inevitably erupts against “one-party control of the press and
media.”
Once the media become biased, the free exchange of ideas
on which a functioning democracy depends is distorted. And when the media fully
commit to this distortion by joining one partisan side, “unjustified legal
rules” that enhance media power are not tolerable.
Judge Silberman has that right.
No comments:
Post a Comment