by Michael C. Dorf
Dissenting in Tah v. Global Witness Publishing last week, Senior DC Circuit Judge Laurence Silberman mostly disagreed with the way in which his colleagues applied New York Times v. Sullivan in favor of the defendant Global Witness--a human rights organization that was sued for defamation by two Liberian officials based on the defendant's publication of a report falsely implying that they had accepted bribes. The majority concluded that the plaintiffs' complaint did not allege facts sufficient to meet the "actual malice" standard that NYT v. Sullivan requires public officials to satisfy. Judge Silberman disagreed. Not content to explain why he thought the complaint ought not to have been dismissed, Judge Silberman also took the opportunity to say that he thought NYT v. Sullivan was wrongly decided and ought to be overruled. That portion of his dissent is, to put it politely, odd.
In a forthcoming Point/Counterpoint exchange with Berkeley Law Professor Orin Kerr in the journal Judicature, I'll argue that there's nothing inherently inappropriate about a lower court judge writing an opinion, concurrence, or dissent that criticizes Supreme Court precedent. Whereas Professor Kerr thinks lower court judges ought to restrict such criticisms to other fora (such as law review articles), I'll contend that occasionally it makes sense to call for the overruling of a precedent in the very case in which the judge must apply that precedent. I think that lower court judges calling for SCOTUS overruling of binding precedent is especially apt where the application of such precedent leads to unjust or otherwise unwise results.
But that's not what Judge Silberman did in Tah. He did not think that, as a matter of first principle or the best reading of the Constitution, the plaintiffs should win but reluctantly conclude that NYT v. Sullivan required him to rule for the defendant. On the contrary, he thought his colleagues had misapplied NYT v. Sullivan. Thus, his call for its overruling was gratuitous.
The call was also redundant. As Judge Silberman himself noted, Justice Thomas already has called for the overruling of NYT v. Sullivan, and for mostly the same reasons that Judge Silberman offers. That said, Judge Silberman's characterization of Justice Thomas's argument as "persuasive" is tendentious; "hypocritical" or "disingenuous" seems like a better characterization, given that Justice Thomas and Judge Silberman both criticize NYT v. Sullivan as a judge-made departure from the original understanding of the First Amendment but are perfectly fine with right-wing departures from the original understanding of the First Amendment, like those busting unions and invalidating campaign finance regulation (as I noted here).
In one respect, Judge Silberman goes (way) beyond what Justice Thomas wrote in his call for the overruling of NYT v. Sullivan. Judge Silberman argues that the press is pervasively biased in favor of Democrats and against Republicans and that for that reason it oughtn't to receive First Amendment protection against defamation liability.
Were I merely to describe the peroration of Judge Silberman's dissent, I would likely be accused of exaggeration. Accordingly, I'll quote it. He writes:
Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s. (I do not mean to defend or criticize the behavior of any particular politician). 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.
***
It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, 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. 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.
There is so much outrageous nonsense in those two paragraphs that it is hard to know where to start. Writing in Sunday's Washington Post, Ruth Marcus nicely summed up an appropriate bottom line: "There are many threats to American democracy these days. Times v. Sullivan isn’t one of them — it is an essential bulwark in democracy’s defense." I'll add a point about how Judge Silberman measures, or rather assumes, bias.
Consider the following propositions:
(1) Average global temperatures have been increasing as a result of human activity.
(2) In-person voter fraud is rare and almost always inconsequential.
(3) The Democratic Party is not home to a vast ring of child molesters.
(4) Tax cuts sometimes spur economic growth but they virtually never spur sufficient extra growth to compensate for the lost tax revenue.
(5) Wearing masks reduces the spread of COVID-19.
Let's stipulate that most mainstream news outlets affirm all of the foregoing propositions when they are relevant to some news story, while a handful of identifiably conservative media outlets question or deny some or all of them. Given that Democrats are, on average, substantially more likely to believe each of the five propositions than Republicans are, does the skew in perspective of the news media show that the press are, in Judge Silberman's words, "bias[ed] against the Republican Party?" Or is it at least equally compatible with the idea that (a) all five propositions are true; and (b) responsible journalists understand their job as reporting the truth?
To be sure, one can imagine that there might be other ways of showing that American media are biased specifically against Republicans rather than for the truth. But Judge Silberman doesn't offer any. He relies on a 2011 book by Tim Groseclose that asserts that American media are biased; however, as an insightful review of that book notes, Groseclose's methodology is entirely consistent with a truth-bias rather than a Democratic-bias: he measures the distance between the perspective of news and the (supposed) perspective of the average American. As the authors of the review note, Groseclose thus conflates bias in the sense of inaccurately representing the world and bias in the sense of failing to reflect the audience's opinion. So does Judge Silberman.
Back when he was portraying a caricature of a right-wing opinion journalist, Stephen Colbert jokingly complained that reality has a liberal bias. Judge Silberman apparently did not get the joke.
16 comments:
Mike,
If the NYT and WaPo were dominated overwhelmingly by white men, and then, on issues where there is racial or gender polarization, consistently wrote news articles that skewed in favor of positions supported by white men rather than minorities or women, would you glibly assume that this reflected a "truth" bias rather than racial or gender bias? I think not. So why would it be any different here if, as I suspect may well be true, the newsrooms of the NYT and WaPo are overwhelmingly dominated by individuals who vote Democratic rather than Republican? (And FWIW, the bias of those papers is not primarily attributable to their reporting on the sorts of facts in your post, but rather their choices of what to write about and what to ignore.)
That is some excellent inadvertent satire.
1) "If If the NYT and WaPo were dominated overwhelmingly by white men . . . ." https://www.nytimes.com/2021/02/24/business/media/new-york-times-workplace-diversity.html
2)"what to write about." Like Hillary Clinton's emails: https://www.nytimes.com/2019/10/24/opinion/letters/clinton-emails-giuliani-trump-war.html
Yep, Hillary Clinton and Andrew Cuomo are definitely wondering where that Democratic Bias went when they needed it.
I will have to send Judge Silberman a copy of Eric Alterman's "What Liberal Media?" to broaden his reading list.
Mike, that attempt to duck the substance of my response is entirely unpersuasive.
As to the first, I obviously wasn't making any sort of empirical claim about whether the NYT and WaPo in fact already have a dearth of racial or gender diversity. I was simply saying that *if* they did, *and then* there was *also* racially or gender skewed coverage on polarized issues, you would never suggest that the skew reflected a "truth" bias rather than a racial/gender bias. I don't know whether minorities or women would say the papers' coverage is already skewed. If not, then that is fortuitous that the white men are "allies"; but if so -- if the objecting women and minorities in the article you linked to had further objected to skewed coverage, would you dismiss their objections as based on "truth" bias? I continue to suspect not, yet you treat partisan imbalance differently without explanation. (Btw, what would have been a devastating response is a link to an article about how the NYT and WaPo newsrooms actually include lots of Republican voters. Color me unsurprised that you failed to provide that link.)
As to the second, that response, if anything, proves my point. I understand that you and many likeminded folks think that HRC's emails were given too much emphasis in the 2016 election. But as the "lock her up" chants at Trump's rallies demonstrate, a rather sizable portion of the public appears to disagree with you. And this isn't the sort of objective fact that you highlighted in your post -- it's precisely the sort of subjective view where, as your response vividly demonstrates, there's reason to fear that an overwhelmingly liberal (or conservative) organization may make decisions that are ideologically skewed. (If your point instead is that the NYT and WaPo didn't play to type in this rare instance, that doesn't demonstrate very much -- the degree of partisan bias doesn't need to be 100% to be significant enough to be obvious.)
Hash:
(1) I am permitted, on what is after all, MY BLOG, to observe that your supposedly hypothetical example, is not all that hypothetical, even if that is not directly responsive to the point you chose to make in your comment. You, of all people, ought to recognize as much, as your frequent M.O. is to pick at some tangential point in one of my posts as if it were central.
(2) We will have to agree to disagree about "lock her up." To my mind, that is much more like my examples. How many of those people--a clear majority of whom also believed falsehoods like that Obama is a Kenyan-born Muslim--had a clear sense of what crime, if any, Clinton had committed? (That's a rhetorical question, but if you have reliable survey data that answer it, feel free to post it in a further comment to which I shall not respond.)
Mike, I of course recognize and agree that you are free to respond to my comments to whatever limited extent (if any) you find worthwhile. I never suggested otherwise. Rather than saying I was entitled to a responsive reply, I merely pointed out that your reply was in fact non-responsive, which seems like an entirely legitimate thing to observe, especially given that you often do responsively follow up. Your general and thoughtful responsiveness is, in fact, why I enjoy commenting here on the aspects of your posts that interest me (which sometimes concern tangential legal points, rather than the central ones, where we're likely to more fundamentally disagree). Hence my disappointment with your exercise of your conceded discretion not to substantively respond here.
"....outrageous nonsense...."
Emphasis on the "outrageous" in my opinion, as an electrical engineer with no formal legal training. That's what passes for 'judgment' these days in US courts?
The dissent is really a must read on its own, particularly for those who have followed Judge Silberman's long career. While the dissent could just be cast off as "Grandpa misses the Washington Star," see Dissent at 20, n. 9, what strikes me most about the piece is the internally inconsistent argument and what that augurs for press freedom in the digital age.
Judge Silberman gives two paeans to the purpose of the First Amendment. "The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is—I say this advisedly—fundamentally un-American. As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions. One would hope that someone, in any institution, would emulate Margaret Chase Smith." This appears in footnote 11 of the opinion. It states that the First Amendment at its core supports a robust marketplace of ideas and not suppression of speech. McCarthy, of course, sought to suppress anti-communist views in the 1950's and did so through increasingly authoritarian means until people in the Republican Party (like Margaret Chase Smith) stood up to him and said enough.
The second paean is quoted by Professor Dorf. What is interesting is the abrupt turn from a literal constitutional guarantee to distortion of the marketplace in one sentence. He sees bias as a negative externality of a free press, not as intrinsic to the marketplace of ideas. And after having previously bemoaned the McCarthy era, which he notes he lived through, he suggests the press must be curtailed because Fox News seems a minority in the media market (which will come as a shock to Nielsen).
Judge Silberman seems to have reached cognitive dissonance with free press and marketplace of ideas when he does not like some of the ideas. (I am skipping any comment on his love letter to Fox News as low hanging fruit.) It is fine for right wing media to bias and distort reality, but a crisis if the left wing does so. (I am not agreeing with his labels, only quoting them.) From a basic First Amendment perspective, he is favoring, indeed lobbying for, viewpoint discrimination (which he ironically dismisses in this context to assure a diversity of views).
To me, the really newsworthy and cringeworthy part of the opinion is the willingness to sacrifice the media to a low bar of defamation suits in order to enhance press freedom, which he defines as a playing field of enough right wing papers to balance the left (again an ironic position to take from someone who has opposed quotas and affirmative action). A significant figure on the second-highest court in the country wants to use the First Amendment to suppress and chill speech he deems unworthy -- the exact argument he claims is the problem with the media today (chilling right wing speech -- please contain your laughter).
When Holmes wrote in his Abrams dissent of the marketplace of ideas, he had in mind a very pugilistic concept of free speech -- put your ideas out there and the one that commands the majority wins the day, but by no means suppress any ideas. Silberman now characterizes this as a market flaw needing correction. Again, the irony astounds. But the clear and present danger of advocating for a new McCarthyism (in an opinion chastising McCarthyism) should worry all of us who champion a free society. His opinion is not just a rant; it is of a piece of legal maneuvers to suppress political rights -- like voting, rights of personal autonomy, and the Establishment Clause. He is not against bias; he is for a particular bias. In that regard, his opinion is remarkable as aconstitutional.
I'm not an especially conservative or political person, but I think the Times and Post are transparently liberal papers that have become more so in recent years as the center of elite liberal opinion has shifted left, and that claiming otherwise on the basis of some unfavorable reporting on Democratic candidates is frivolous. That isn't to say such claims are made in bad faith; I understand how people with strong political commitments get frustrated by bad reporting about their preferred candidates, while seeing their bad or transparently ideological reporting on practically everything else outside of gardening and European soccer as a faithful depiction of reality, and come to imagine the Times and Post are actually the neutral papers they sometimes purport to be, or even vaguely conservative institutions. (Of course, it is possible to accurately perceive the sorts of papers the Times and Post are and think they're too far to the right; you just have to be very liberal.) Likewise, I get how Silberman, also being a very political person, could come to imagine that Candy Crowley's questioning of Romney in a debate nine years ago is some sort of enduring national scandal, as he suggests in a footnote of his opinion. But if you are a political person and you want to form a remotely accurate judgment of media organs' political biases, you have to work pretty hard to fight your own.
One place I might start in helping someone to see how liberal the Times or Post is is to read their reporting on anything having to do with race and note how many hotly disputed normative and factual premises their race reporting takes as givens. The same is true of their reporting on just about any question of domestic policy. Of course the facts on, e.g., how real a problem voting fraud may cut one way or another, but the question of how far in advance before an election we want people to be able to vote isn't a factual one or even an easy normative one, and Times or Post reporting on electoral reform is invariably written as though there are no justifications for not opting to maximize electoral access or wanting to reduce it, no matter how long the voting period may become.
There's a lot I want to say, but I don't want to end up writing a novel or duplicating some of the great points made by Jason Marks and others, so I'll just throw out a few numbered random observations.
(1) To me, one of the bizarre things about the dissent, and maybe an aspect that flew under the radar a little, wasn't even the jeremiad about the "biased" press. It was the part before that, where he actually disagrees with the majority on applying actual malice. He seems to be intent on carrying lots of water for Exxon (I'm not sure if that's an oil pun) in denying the bribery allegations against it. Putting aside whether the allegations ran afoul of the standard (I tend to think they didn't), he spilled oodles of ink (there I go punning again) defending an entity that *wasn't even a party to the case*. It was the Liberian officials suing, not Exxon. So he's indulging a serious love affair with Exxon and/or he thinks it lacks the means to defend itself. I doubt the latter is true though.
(2) He's right that NYT/Sullivan is mistaken, but only because it didn't go as far as it should have—i.e., the position(s) advocated by Goldberg/Douglas/Black.
(3) On page 15 he says NYT/Sullivan "has no relation to the text, history, or structure of the Constitution." That has to be some kind of joke. If a case involving what the media can say about public figures doesn't have a connection to the literal text of the 1A—e.g., the "freedom" of "speech" and especially the "press", to say nothing of the "right" to "petition the Government"—then I wonder what does. And if that's really his position, then as the OP noted, what's his take on Citizens United et al., which presumably he's a big fan of?
(4) The OP mentioned—or at least strongly hinted—that he made an originalism critique of NYT/Sullivan, although I don't think he quite came out and said that expressly. He did of course approvingly cite Thomas J., who did in fact make such a critique. But either way, one reason (among so so many) it's hard to take these critiques seriously is that even the most strident originalists like Thomas J. accept that 14A incorporation is a thing. And of course they do, because it underpins cases they adore like McDonald, and more recently, Trinity Lutheran/Espinoza. That seems like a huge problem to me, because incorporation completely flies in the face of originalism, so once you do that, what's really left to argue? Even more absurdly, Thomas J. thinks only the free exercise clause is incorporated, but not establishment. How convenient! But maybe Silberman J. also puts Thomas to shame by suggesting that 1A constraints should apply to *private* tech companies. I can't think of anything *less* "originalist" than that. (As an aside, I think it's highly debatable whether outfits like Twitter and Uber are in fact rightly called "tech" companies and not just "media" and "transportation" companies.)
(5) As the OP notes, he only relies on a book by Prof. Groseclose and one other book as his sources. It should be pointed out that Prof. G. is a shill who belongs to the reactionary "think" (using that word quite loosely) tank (more oil puns?) at GMU, the Mercatus Center. The other book was by Suzanne Garment, who has an axe to grind against investigative journalism.
(6) He conveniently omitted to mention a few elephants in the room that are other examples of gargantuan reactionary media outfits. In particular I'm thinking of Sinclair and Clear Channel/iHeartMedia. Of course, one reason those outfits got to be so massive was because of the reactionary project to abolish all limits on media ownership. I wonder if he is now suddenly ok with reinstating those limits.
Sigh, I did actually end up writing a novel, so my editors over at Blogger asked me to split it up into 2 volumes. Here's the second:
(7) We lament how deranged and unhinged Silberman J. is acting, but he's 85 and—while I wish him no ill of course—just actuarily speaking, he may not be much longer for this world. In contrast, he's been minting clerks over the years who presumably buy into opinions like this, and those folks will be with us for some time yet. So I'm a bit more worried about them.
(8) Speaking of Thomas J. and political bias, I wonder how Silberman J. feels about the insanely partisan political activities of Thomas's wife.
(9) To come to a very partial defense of Silberman J., I did think he wrote a concurrence in a criminal trade secrets case the other day that was quite nuanced and thoughtful. In other words, totally unlike this dissent. He's got a serious Jekyll and Hyde situation going on.
Good news (or maybe not, depending on your perspective), my superiors at Blogger specially authorized yet a 3rd volume to make one additional point (which also brings us to a nice, even 10):
(10) Maybe we should almost be thanking Silberman J. for jumpstarting this discussion about problems with the media. It's just that what he identifies as problems are illusory. The actual problems, as Prof. Buchanan has cogently pointed out countless times on this blog, are that the media tends to be lazy, inept, and sloppy—rather than deliberately malicious or biased. Again, as Prof. B. has noted, that's especially true with topics involving complex policy and/or anything more than survey course-level economics concepts. Unfortunately, I don't see anything on the horizon to remedy the factors contributing to that trend—such as strapped newsroom budgets, shrinking journalist personnel, diminished cachet of journalism as a profession, the 24-hour news cycle, and increased competition from other forms of media, especially online and nontraditional media (the latter ironically including Twitter).
Few thoughts.
I think it is okay for a lower court judge to from time to time offer a dissent from current Supreme Court doctrine. It amounts to an advisory opinion of sorts but I'm not going to be overly pure on the point. Details aside, NYT v. Sullivan and its progeny is open to some debate. Justice White for one thought they went too far. The dissent in fact cites White though he didn't go as far as saying there was "no relation" to the text etc. He joined Sullivan after all. Brennan's majority opinion as is usual for Brennan can very well be challenged but "no relation" is usual hyperbole.
I note btw that CJ Roberts had a sort of advisory statement on Monday, musing about the troubles with the Antiquities Act being applied but in the end agreeing with the others not to take the case.
The opinion here seems to be one of those talking past each other moments. The majority noted: "Critically, however, neither Tah nor McClain advances this theory—in their briefing to us, they never even mention the sentence on which the dissent relies." Then, the dissent accuses the majority of confusing NYT v. Sullivan.
The responses are of course largely focused on the third section of the dissent, especially some choice comments ("constitutional Brezhnev doctrine") and references (ah the infamous Greenhouse Effect). Then, you have the concern about too powerful courts. Prof. Segall is nodding but adds "if only you were consistent." If only you, in your own way, did not fictionally dress up "policymaking in constitutional garb."
But, this is standard stuff, almost boring. Yet again it is not that the justices really believed the Constitution compelled NYT v. Sullivan (as one comment noted, three justices would have went further) ... it was policy-making to address racism. As if the result didn't fit into the wider constitutional vision of the justices. See, e.g., Brandenburg v. Ohio in a general sense.
The last few pages really is shall we say triggering. So, aside from FOX News, OANN and so forth, "Nearly all television—network and cable—is a Democratic Party trumpet." Oh sorry. Later we find out that FOX News is a sort of "lone" holdout. As John Oliver's show once showed, the broad effects of conservative broadcasts on local news is not THAT trivial. And, to the extent "bias" has effects, perhaps he should have took to heart his comment about how "too complicated" it is to so simply make it one-sided. Monopolization, "what sells" etc. very well affects the results here. But, it isn't a simple pro-one party bias.
As noted by Prof. Dorf in a past post linked, it is quite possible to criticize the breadth of NYT v. Sullivan. It's okay he did it. It would have went down better if he left out the last few pages of his dissent at the very least.
Doesn’t NYT v. Sullivan make an exception for cases of actual malice, even with regard to public figures? And is it that inconceivable that (say) referring to Republicans as “fascists” could be taken as evidence of actual malice? A real question, not a rhetorical one.
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