“The holding company has no relationship on the text, history, or structure of the constitution, and it has bare constitutionalized an area of law that has been refined over centuries of common law jurisdiction, ”wrote the Ronald Reagan-appointed representative.
Silberman reiterated and cited approvingly a statement issued two years ago by Justice Clarence Thomas questioning the New York Times’ reasoning against Sullivan and calling on the Supreme Court to reconsider the decision. “Justice Thomas has already proven this convincingly New York Times was a policy-driven decision disguised as constitutional law, ”wrote the judge.
The extraordinary aspect of Silberman’s opinion, however, was not his legal arguments, but rather the lengthy broadcast of the judge’s apparently deep-seated, pent-up complaints that conservatives are being oppressed by mostly liberal news media, academia, and tech companies. That created “a terrifyingly orthodox media culture,” he wrote.
“The increasing power of the press is so dangerous today because we are very close to one-party control of these institutions,” said the judge. “While the bias toward the Republican Party – not just controversial figures – is quite shocking today, it is not new. It’s a long-term, secular trend that dates back to at least the 1970s. Control of the press and media by a party is a threat to a viable democracy. ”
Silberman slammed the New York Times and Washington Post as “broadsheets of the practically Democratic party”. He added, “Almost all of the television – network and cable – is a Democratic Party trumpet. Even the government-backed National Public Radio follows suit. “
Silberman acknowledged the existence of conservative outlets like Fox News, but cautioned against “serious efforts to silence the network”. He did not explain further.
Silberman also specifically opposed Twitter’s pre-election decision last fall to ban links to a New York Post story alleging the contents of a computer that was once owned by Hunter Biden, the son of President Joe Biden. belonged to. The judge cited this as an example of how Silicon Valley “filters messaging in a way that is favorable to the Democratic Party”.
The judge also participated in the ongoing public debate about the duties of social media companies, arguing that they have a moral obligation to allow free expression and different views. Arguments that the platforms are private companies and that are not legally required to comply with First Amendment standards may be correct, the judge said, but they do not exempt social media from so-called censorship.
“The suppression of political speech by large institutions with market power … is – I say this with caution – fundamentally un-American,” wrote Silberman. “As someone who lived through the McCarthy era, it is difficult to fathom how honorable men and women can support such actions.”
Silberman did not address the reasons for liberal bias in the media, but instead stated in a footnote that “they certainly relate to bias in academic institutions”.
Whether Silberman’s views of the media are broadly represented by Conservative judges is unclear, but there was no reason for the courts to support the idea of overriding the press protections put in place by the Supreme Court half a century ago . While judges of various ideological directions are less respectful of the media today than judges a few decades ago, the basic principles of “actual malice” do not seem to be displaced as quickly.
The vehicle for Silberman’s violent court order was a defamation lawsuit by two former Liberian government officials against a human rights group, Global Witness, over a report that officials implied they had taken bribes in connection with an oil deal.
The majority on the DC Circuit panel found the case to be fairly straightforward under the existing precedents and concluded that Global Witness was protected by the “actual malice” standard as there was no convincing evidence at the time of publication that its Report was wrong. The officials’ disapproval of wrongdoing was insufficient to indicate that the report was likely to be false, Judge David Tatel wrote in a statement from Judge Sri Srinivasan.
Tatel backed away on some of Silberman’s rhetoric, including describing the majority’s legal conclusions as “obviously deceptive”.
Tatel also warned that the arguments put forward by Liberian officials in the case would have “breathtaking” implications and would “find support for a conclusion of actual malice in a wide range of investigative journalism that is found critical of its subject . ”
Both judges in the majority are democratic candidates. Tatel is an appointed President of Bill Clinton while Srinivasan was appointed by President Barack Obama.
Silberman’s views on party political prejudice in the media are clearly deep-rooted and long-standing. His opinion cites a speech he gave almost 20 years ago in which he deciphered the judges’ tendency not to make tough decisions that may be poorly received by the liberal press. Speaking to the Conservative Federal Society in 1992, the judge described such fears as the “greenhouse effect,” which took the name of then New York Times court reporter Linda Greenhouse. The judge also explicitly criticized lawyers who became reporters and covered the courts.
“The truth is that attorney-reporters are among the most unbalanced and least ashamed when it comes to asserting the value of legal activism,” Silberman said an account in the Times. (None of the Times Supreme Court reporters were attorneys at the time.)
The judge’s opinion also contains some passages that could be considered inappropriate or at least disrespectful to the Supreme Court. The 85-year-old Silberman made it clear that he enjoyed the opportunity and did not shy away from it.
“I plead guilty on charges of contempt. I readily admit that I neglect the holdings of the Court of Justice dressing policy-making in constitutional garb, ”the judge wrote. “This is the real attack on the constitution in which the authors – of course – wanted to assign political power to the political branches. The idea that the Court should somehow play a political role as a revision council is inadmissible. “