Skip to main content

Judge Silberman: Throw Out Times v. Sullivan

A gavel in a stock photo
(Image credit: Witthaya Prasongsin via Getty Images)

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.

Also Read: Survey Majority Finds Bias in News Outlets' Election Coverage

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."