A federal judge issued an opinion Friday slamming a Supreme Court decision that provides news outlets protections against lawsuits.
In his partial dissent in a libel case, D.C. Circuit Senior Judge Laurence Silberman said 1964’s New York Times v. Sullivan decision “must go.” The case established the precedent that for a public official to sue a member of the media for libel, the plaintiff must be able to show “actual malice,” which the court defined as acting with knowledge that a certain fact “was false or with reckless disregard of whether it was false or not.”
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“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,” Silberman, a Reagan appointee, wrote.
“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,” he added. “It must go.”
In an era of the press that is largely controlled by the Left, the 1964 verdict is particularly dangerous, Silberman said.
“It would be one thing if this were a two-sided phenomenon,” he wrote. “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.”
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“Two of the three most influential papers (at least historically), the New York Times and the Washington Post, are virtually Democratic Party broadsheets,” Silberman added.
“The First Amendment guarantees a free press to foster a vibrant trade in ideas,” the judge wrote, concluding his partial dissent. “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.”
