Big Tech's defense of its liability shield for content could become a two-front war.

Edge providers already face bipartisan pushback on their Sec. 230 shield from moderation of most third-party content, now a couple more top judges, both Supreme Court Justices, have raised the issue of rethinking the Times vs. Sullivan decision requirement that speech relating to public officials has to show actual malice to be actionably defamatory.

Dissenting from the court's decision not to hear a relevant challenge to Times v. Sullivan, Justice Clarence Thomas said it was definitely time to take a second look at the actual malice standard. "Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires," Clarence wrote.

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In his dissent, Justice Neil Gorsuch clearly suggested that means rethinking the blanket liability shield for edge providers as well as traditional publishers.

"What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable....If ensuring an informed democratic debate is the goal, how well do we serve that interest with rules that no longer merely tolerate but encourage falsehoods in quantities no one could have envisioned almost 60 years ago?," he asked.

"Not only has the [actual malice] doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted."

Conservatives argue that edge providers have spread falsehoods about them, while liberals argue that the internet has been allowed to abet "big lies" about election security, immigration, and more.

Back in March, Senior Judge Laurence Silberman said that in the 50 years since the decision, the media landscape has changed sufficiently to make the decision "a threat to American Democracy."

He said that Silicon Valley filtered news "in ways favorable to the Democratic party," echoing criticisms from Republican legislators.

A senior judge on the U.S. Court of Appeals for the D.C. Circuit said that liberal media bias--"nearly all television—network and cable—is a Democratic Party trumpet," for example--has resulted in such abuse of the landmark Times v. Sullivan requirement that speech relating to public officials has to show actual malice to be actionably defamatory that the longstanding precedent should be overturned.

That would almost certainly have to come from the Supreme Court.

That came in a dissent from a three-judge panel decision upholding the dismissal of a suit against Global Witness Publishing (GWP) because the other two judges found, as a lower court had, that the contents of a report published by GWP about possible bribes related to the sale of an oil license was protected speech and protected from a defamation claim because the subjects of that report, who sued, could not "plausibly allege" actual malice, and thus was shielded by Times v. Sullivan.

Senior Judge Laurence Silberman dissented, saying the report had falsely insinuated that the subjects of the report took bribes and that the publishers of the report had reason to doubt bribes had been made at all, which would make the insinuations published with actual malice.

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But Silberman said his disagreement with the disposition of the case went beyond that and his dissent boiled down to an indictment of a new media landscape he suggested should no longer be protected by the "actual malice" shield.

"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," he wrote, then lit into liberal media with a vigor usually reserved these days for conservative members of Congress and right-wing pundits.

He said he recognized that it would be tough for the Supreme Court to overrule the landmark Times v. Sullivan, which is required reading for any law student and invoked reverently by journalists.

But he said in the 50 years since the decision, the media landscape has changed sufficiently to make the decision "a threat to American Democracy."

The increasingly powerful media is now abusing the protections of Times v. Sullivan by getting a pass for "casting false aspersions on public figures with near impunity," Silberman argued.

Rather than consolidation of media outlets, the real threat is "ideological consolidation" which he lays squarely at the feet of the Democrats and liberal media outlets. "The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.

 In addition to those broadcast network and cable Democratic Trumpets, he said, The Washington Post and New York Times are "Democratic broad sheets" and even the news pages of the Wall Street Journal "lean in the same direction."

Then there is Silicon Valley, which he said filters news "in ways favorable to the Democratic party."

He does concede that Fox News, the New York Post and Wall Street Journal editorial page run counter to that tide, but said it should be "sobering" that all those are controlled by a single man--Rupert Murdoch--and his son--Lachlan Murdoch though his concern is not their control but that they are lone holdouts in an "otherwise frighteningly orthodox media culture."

"It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications," he wrote, "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."

For those reasons and more, he said, the Times v. Sullivan shield must go. "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."

Judge Brett Kavanaugh signaled he will follow the Times v. Sullivan precedent that journalists can say anything about public figures so long as it is not untrue, and further, that the untruth was reported with "actual malice."

That came in day three of his Supreme Court nomination hearing in the Senate Judiciary Committee.

The issue was raised by Sen. Amy Klobuchar, who was looking for such assurances against the backdrop of President Donald Trump's threats against the New York Times and other media outlets, including invoking libel laws and threatening to sue over negative coverage he has branded a conspiracy against him.

Asked if he thought under Times v. Sullivan would allow a public figure to sue a news outlet under any lesser standard than "actual malice."

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Kavanaugh said the Supreme Court had repeatedly applied that standard, as had he in his current post as judge on the U.S. Court of Appeals for the D.C. Circuit. "The precedent has now been applied over and over and over again. I'm not aware of much effort to deviate from that standard," he said. 

When asked about how he would apply a reporters privilege to protect a confidential source, Kavanaugh said there was important precedent that makes clear the importance of the relationships of reporters and their sources is very important. I understand the role of journalists in bringing some light to American democracy."