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.