In dissent, federal judge calls for overturning Supreme Court decision that allows the media to falsely report and defame with near impunity

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A federal judge recently decried the state of media in the U.S., claiming that there is now almost one-party control of news outlets and calling it “a threat to a viable democracy.”

 

Quick Facts

 

 

U.S. Circuit Judge Laurence H. Silberman, a Reagan appointee, made the most of his dissent in the defamation case Tah v. Global Witness, advocating for the Supreme Court to rethink New York Times v. Sullivan in light of the ideological consolidation and overwhelming power of today’s media. The 1964 case gave media outlets protection from defamation lawsuits, requiring that an outlet must be proven to have acted with malicious intent to be held accountable.

 

In his 23-page dissent, Silberman said, “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.”

 

Silberman wrote that the ruling is a “policy-driven decision masquerading as constitutional law,” that “badly constitutionalized an area of law refined over centuries of common law adjudication.”

 

The judge claimed that the decision is a “threat to American democracy” and “it must go.”

 

New York Times v. Sullivan gave Northern newspapers greater leeway in covering the Civil Rights movement in the South. Silberman wrote that, at the time, the protections were understandable, possibly even needed, but the power is now “abused.”

 

“As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity,” Silberman wrote. “It would be one thing if this were a two-sided phenomenon…. The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.”

 

Silberman issued a scathing rebuke of the press, saying,

 

“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.”

 

He went on to criticize Silicon Valley for its censorship, such as blocking the New York Post’s story on Hunter Biden’s laptop, which contained email evidence of potentially corrupt business dealings with foreign governments.

 

The New York Times won protections for media outlets in 1964; however, the newspaper has faced setbacks lately when it comes to being guilty of defamation itself.

 

Last week, New York Supreme Court Justice Charles Wood ruled against the paper’s motion to dismiss a defamation suit brought by Project Veritas. Maggie Astor and Tiffany Hsu wrote articles for the paper claiming that Project Veritas’ claims about potential voter fraud were “deceptive” and “disinformation” and part of a “propaganda feedback loop.” After Project Veritas filed suit, the New York Times tried different defense strategies, primarily relying on the claim that these statements were opinions.

 

And in 2020, the Times suffered a defeat after Sarah Palin brought a defamation suit against the paper, with the judge ruling that the case can go to trial. The New York Times had attempted to cast blame for the shooting of then-U.S. Rep. Gabrielle Giffords, D-Ariz., on Palin and Republicans. The claim was made in an editorial discussing the shooting of Republican Rep. Steve Scalise by a Bernie Sanders supporter.

 

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Silberman’s opinion is correct: The media is free to make baseless claims about Republicans or anyone they don’t like, use “anonymous sources,” and corroborate other outlets’ fake quotes with virtually no consequences. The way that the media covered Donald Trump was, at the least, antagonistic, and claims were frequently unfounded or deliberately untrue. Yet the media has shown no desire to aggressively question the Biden administration, preferring to instead grant glowing coverage of the new president.

 

The federal judge claimed that having an almost one-party media is a threat to democracy, noting that tyrannical regimes seek to consolidate control of the media. In our nation, the media already toes the Democrat Party line.

 

The vast majority of the American people say they do not trust the media because it frequently offers opinions or even untruths as fact and very often labels people as “racists,” “rapists,” or other inflammatory terms without evidence. Moreover, today’s media achieves its objectives as much by what it doesn’t report as by what it does. For example, just this week, the day after Rep. Henry Cueller, D-Texas, released the first-ever photographs of migrant children being held in overcrowded facilities under the Biden administration, the Washington Post and the New York Times both failed to report it.

 

While it is important to protect members of the media from lawsuits every time they share an opinion or get something wrong, they must also be held accountable when they present their opinions as unbiased, fact-based reporting. It is important that the media not skew the information they present to the public in order to push their own preferred narratives rather than delivering truth.