Judge Silberman's Straight Talk on New York Times v. Sullivan and One-Sided Media

On April 8, Free State Foundation President Randolph May posted a blog bout Justice Clarence Thomas's concurring statement in Biden v. Knight First Amendment Institute at Columbia University. Justice Thomas's concurring statement is both intriguing and provocative. For another intriguing and provocative judicial opinion, look no further than Senior Judge Laurance Silberman's dissent in Tah v. Global Witness Publishing, Inc. 

 

The D.C. Circuit's decision in Tah was released on March 19. The court affirmed a dismissal of a defamation case for failing to plausibly allege actual malice. Senior Judge Silberman's partial dissent gets really interesting in Part III, in which he calls into question the legal standard for proving defamation of public figures that was created by the Supreme Court in New York Times v. Sullivan (1969): 

I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.  

The foregoing paragraph is only the warm-up, as Senior Judge Silberman has much more to say about the Supreme Court making up new legal standards and leveraging its institutional legitimacy to resist any subsequent careful re-evaluation of its precedents. 

 

Senior Judge Silberman's dissent gets more interesting still when he identifies the effects of New York Times v. Sullivan in increasing the power of one-sided professional mass media organizations. Here is his first paragraph dealing with those effects: 

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But seeSuzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a "bland and homogenous" marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat. 

No blog summary can do justice to Senior Judge Silberman's dissent in Tah. Part III of his dissent deserves a full reading – and some pondering.