Laurence Silberman's Blast At The Judicial Establishment

It would be difficult to briefly characterize Laurence Silberman's position in American politics and the judiciary. His career has been extraordinarily wide ranging and his public perception has varied just as widely over the decades. He is best known for his time on the federal bench in DC--since his appointment by Ronald Reagan--but by then he was already a veteran DC politician in the Executive Branch. Perhaps it would be safest to say that he is a long time GOP establishment figure, known for an explosive temper and a penchant for speaking his mind--characteristics that have sometimes led to the need for further explanations of his views and actions. 

Silberman has participated in a number of notable decisions, including during his time on the FISA Court of Review--reviewing FISC decisions. He has rarely shied away from controversy, which may be why he was never actually nominated for the SCOTUS, although his name was frequently brought up in that regard during Republican administrations. With all that said, he has long been regarded as a leading Republican judicial figure, although he has been in senior status since 2008--twelve years ago, already!

Silberman is back in the news. Fox carried the story yesterday, regarding Silberman's dissent in the decision of a three judge Appellate panel in DC in the defamation case of Tah v. Global Witness Publishing, Inc. Silberman.

Federal judge warns 'dangerous' media has 'very close to one-party control' in blistering libel case dissent

Judge Laurence Silberman calls New York Times, Washington Post 'virtually Democratic Party broadsheets'

Fox provides the essential background for the case:

The case centers on a 2018 report from Global Witness Publishing that accused Liberian government officials Christiana Tah and Randolph McClain of accepting bribes from Exxon. Tah and McClain sued Global Witness alleging defamation and their claims were dismissed in Friday's ruling. 

However, in the course of his partial dissent, D.C. Circuit Court Judge Laurence Silberman went on an unprecedented written tirade against the press, in which he argued that the Supreme Court should revisit the landmark 1964 New York Times v. Sullivan ruling that granted the media broad First Amendment protections from being sued by public officials.

"[N]ew considerations have arisen over the last 50 years that make the New York Times decision (which I believe I have faithfully applied in my dissent) a threat to American Democracy," he writes. "It must go."

"The increased power of the press is so dangerous today because we are very close to one-party control of these institutions," said Silberman

As indicated, Silberman's dissent focuses on the SCOTUS' game changing 1964 decision in New York Times Co. v. Sullivan, and the line of decisions that follow from it. For purposes of Silberman's dissent, this is the significance of that decision:

Specifically, it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false defamatory statement to a third party—he or she must also prove that the statement was made with "actual malice", meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.

...

The Supreme Court has since extended the decision's higher legal standard for defamation to all "public figures", beginning with the 1967 case Curtis Publishing Co. v. Butts. Because of the high burden of proof required and the difficulty of proving a defendant's real knowledge, these decisions have made it extremely difficult for a public figure to win a defamation lawsuit in the United States.

In other words, the SCOTUS has enabled the wholesale and virtually riskless defamation of any person or group that happens to be out of favor with those who control the institutions that control the public square. This is what concerns Silberman, and in this he sees the developments in media control and news delivery since 1964 a serious threat to our democracy.

Justice Clarence Thomas, a friend of Silberman, has of late been an outspoken critic of the Sullivan case. Silberman has now weighed in, in no uncertain fashion. I take it that Silberman is encouraging the plaintiff's to file a writ for certiorari with the SCOTUS--to provide the SCOTUS with the opportunity to address this threat to our constitutional order. He is also, in essence, drawing a line and challenging the SCOTUS to undo the harm it, as an institution, has done. In the broadest sense, Silberman criticizes what he terms "constitutionalization"--the use of controversial cases to enunciate supposedly "constitutional" principles which, in fact, have no basis at all in the Constitution. As such, his dissent is also a trenchant criticism of the entire Judicial Establishment, particularly under John Roberts. I single out Roberts not because Roberts is responsible personally for all the developments that Silberman criticizes, but because of his repeated supine acceptance of taking the path that will draw least fire from the establishment media proxies for the Dem party. It seems apparent that Silberman has little but disdain for Roberts' 'go along to get along' 'jurisprudence.'

What I've done is to provide an edited version of the last section of Silberman's opinion, but stripped of most references and all footnotes, to make for easy reading. It's not news, but it is refreshing coming from a person of Silberman's standing. Spoiler: Silberman holds out little hope that the Roberts Court will develop a constitutional backbone and do its duty by the country. One supposes that the events of Election 2020--including the SCOTUS' abdication--played a part in Silberman's decision to let 'er rip:

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. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. 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. 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.

Nevertheless, I recognize how difficult it will be to persuade the Supreme Court to overrule such a “landmark” decision. After all, doing so would incur the wrath of press and media. But new considerations have arisen over the last 50 years that make the New York Times decision (which I believe I have faithfully applied in my dissent) a threat to American Democracy. It must go.

Twenty-five years ago, I urged the overruling of a similarly illegitimate constitutional decision, ...

I recognized, however, that convincing the Court to overrule these precedents would be an uphill battle. As I wrote, the Court has committed itself to a constitutional Brezhnev doctrine. That is, once the Court has “constitutionalized” a new area of the law, it will never willingly retreat. The long-term consequence of this policy is obvious: An ever-expanding sphere of influence for the Judiciary at the expense of the policymaking branches.

In a short concurring opinion, Justice Kennedy lamented my criticism. He warned that “[w]e must guard against disdain for the judicial system,” i.e., the Supreme Court. In his view, criticism of the Court is tantamount to an attack on the Constitution. He cautioned, “if the Constitution is to endure, it must from age to age retain ‘th[e] veneration which time bestows.’” Id. (quoting The Federalist No. 49, at 314 (Madison) Apparently, maintaining a veneer of infallibility is more important than correcting fundamental missteps.

To the charge of disdain, I plead guilty. I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb. That is the real attack on the Constitution, in which—it should go without saying—the Framers chose to allocate political power to the political branches. The notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate. See 1 The Records of the Federal Convention of 1787, at 138, 140. It will be recalled that maintaining the Brezhnev doctrine strained the resources and legitimacy of the Soviet Union until it could no longer be sustained.

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As the [Sullivan] 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. But see Suzanne 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. It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.

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.

As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. 

It is well-accepted that viewpoint discrimination “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” But ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.

To be sure, there are a few notable exceptions to Democratic Party ideological control: Fox News, The New York Post, and The Wall Street Journal’s editorial page. It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? After all, there are serious efforts to muzzle Fox News. And although upstart (mainly online) conservative networks have emerged in recent years, their visibility has been decidedly curtailed by Social Media, either by direct bans or content-based censorship.

There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. That was empirically and persuasively demonstrated in Tim Groseclose’s insightful book, Left Turn: How Liberal Media Bias Distorts the American Mind (2011). Professor Groseclose showed that media bias is significantly to the left. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8–10% in the typical election. And now, a decade after this book’s publication, the press and media do not even pretend to be neutral news services.

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.