By DEACON MIKE MANNO
Anyone who has been even a casual reader of this column knows of my affinity for the profession of journalism and my deep disdain for the manner in which it is practiced today. Naturally, then, I was pleased and surprised that a federal appeals court judge also took aim at the press, and social media, while ruling on a case before him.
The judge is Laurence H. Silberman, a Reagan appointee to the D.C. Circuit Court of Appeals who took senior status in 2000 but is still eligible to hear and rule on appellate cases. The case was an unremarkable one involving Liberian officials who were suing an international human rights organization for defaming them in a report by implying that they had accepted bribes. The lower court had dismissed the case
This issue on appeal was whether or not the plaintiffs had sufficiently alleged actual malice by the defendant company. The issue of malice, as articulated by the Supreme Court in its legendary ruling in the 1964 case of New York Times v. Sullivan, was a key issue. In Sullivan, the court ruled that for a public official to prevail in a defamation case, the official must not only prove the legal elements for defamation, but must also prove that the defamatory statements were made with “actual malice” — meaning that the defendant knew the statements were not true or published them with reckless disregard for their truth.
Sullivan came out of the civil rights era of the 1960s when a local official in Montgomery, Ala., sued the Times over a full-page advertisement which criticized the local police for mistreatment of civil rights protesters which contained several inconsequential factual errors. Nonetheless a local jury found against the paper and awarded the plaintiff $500,000 in damages. The Supreme Court overturned the trial court award 9-0, holding that it violated the First Amendment and establishing the “actual malice” standard for such suits.
Subsequent cases expanded the protection beyond public officials to public entities, such as the defendant in the case being heard by Judge Silberman.
In his partial dissent to the panel’s affirmation of the lower court, Silberman objected to what was considered “actual malice.” From there he went on to criticize the Sullivan decision as “policy driven” and having “no relation to the text, history, or structure of the Constitution…the actual malice requirement was simply cut from whole cloth,” he wrote.
But then he went further, criticizing the press, social media, and, by implication, the Democratic Party.
“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 a threat to American Democracy. It must go,” he wrote.
“I readily admit that I have little regard for the 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,” he said before going off on the press and one-party rule by the Democrats.
Pointing out that the original suit against the Times was to curb its criticism of local officials by the northern press, he noted that the day after the jury verdict was announced, “The Alabama Journal (a Montgomery paper) celebrated the result. An editorial trumpeted that the case would cause the ‘reckless publishers of the North…to make a re-survey of their habit of permitting anything detrimental to the South and its people to appear in their columns’.”
Continuing he opined that the Sullivan case increased the power of the media, which initially needed that protection to cover the civil rights movement. But, he warned, “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.” Citing statistics and reports of press accusations predominately target conservative and Republican politicians, he noted that over the years since, cities, especially those controlled by Democrats, have been served only by a liberal press.
“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 1970s. Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets….The orientation of these…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.”
Then he turned his attention to Silicon Valley which “also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party.” He noted how Facebook and Twitter have also curbed Internet free speech on their platforms.
“It is well-accepted that viewpoint discrimination raises the specter that the government effectively drive certain ideas or viewpoints from the marketplace.”
He noted there are a few exceptions to “Democratic Party ideological control” of the media such as Fox News, The New York Post, and the Wall Street Journal’s editorial page. Yet, he observed, there are attempts to muzzle Fox News and some of the other conservative networks that have emerged in recent years. The Democratic Party’s dominance in the press and social media has been estimated at adding between eight and ten percent to its vote in a typical election, he said.
“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,” he penned.
“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.”
Two footnotes Judge Silberman placed in his opinion are worth noting: “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 therefor 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.”
And finally, another dig at the current state of society: “The reasons for press bias are too complicated to address here. But they surely relate to bias in academic institutions.”
Thank God for Judge Silberman. Unfortunately, however, you won’t find much about this argument in either the media or academia. Such is the world we live in today.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. Central Time on Faith On Trial on IowaCatholicRadio.com.)
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