Only a few days after Judge Laurence Silberman of the D.C. Circuit Court of Appeals warned in a widely discussed dissent that the U.S. media’s bias in favor of the Democratic Party was dangerous to democracy, the New York Times showed how correct he was.
In an article on March 25, the New York Times attacked GOP Sen. Ron Johnson of Wisconsin in much the way that Johnson’s Wisconsin predecessor, Joseph McCarthy, used to attack adversaries, with innuendo and outright falsehoods.
However, as Silberman pointed out, under the 1964 Supreme Court ruling in New York Times v. Sullivan, a public figure such as Johnson cannot sue the New York Times for defamation unless he can prove actual malice. There are legitimate questions about whether this is correct as a matter of constitutional law, said Silberman, but when the media in the United States is so biased in favor of the Democratic Party, it creates a real threat to our democracy.
For example, under the headline “Assaulting the Truth, Ron Johnson Helps Erode Confidence in Government,” the New York Times accused Johnson of spreading falsehoods by saying that “the Jan. 6 attack on the Capitol was not an armed insurrection” and tried to portray him as a climate denier because he said that Greenland, icy today, got its name because it was warmer and green a thousand years ago. In addition, it said that the senator “maintains a continuing assault on the truth, often under the guise of simply ‘asking questions’ about established facts.”
Ironically, the New York Times’s “established facts” above were wrong. Based on what we know today, the attack on the Capitol was not an “armed insurrection.” Any sensible interpretation of “armed” must refer to firearms, not bear spray. No firearms have been found in the Capitol, nor on anyone arrested in the Capitol. Nor have firearms in the hands of the invaders been seen in any of the videotapes that the government and the New York Times have reviewed.
Was Greenland, ice-covered today, ever green? Yes, it was farmed by the Vikings 1,000 years ago when the Earth was warmer. Although this does not fit with the climate views of the New York Times, it is consistent with the facts.
In his dissent, Silberman argued that the Sullivan case allows the media to cast “false aspersions” on public figures that cannot be countered without an objective media on the other side. In addition, because the media is almost unanimously biased in favor of the Democratic Party, a one-sidedness in news reporting is built in to the news reporting system. Accordingly, Sullivan could only be considered even-handed if officeholders of both parties benefited, but as things stand today, the case mostly allows the media to attack Republicans without fear of legal retaliation.
There is little doubt about this bias. The most egregious example is the complete shutout of news by media outlets about what might have been a serious scandal involving Joe Biden and his son Hunter less than two weeks before the 2020 election. Material was found on Hunter Biden’s computer that his father, who had denied knowing about his son’s business activities, was, in fact, deeply involved in those activities. Tony Bobulinski, one of Hunter Biden’s partners in a Chinese business deal, said that he had met with Joe Biden about the venture, which included substantial payments by a Chinese firm to both Hunter Biden and to someone called “The Big Guy,” who might well have been the then-vice president.
This potential scandal was possibly one of the most serious ever to involve a presidential candidate, but, in a move seldom seen outside a totalitarian country, was completely suppressed by virtually every major U.S. news outlet except Fox News, the Wall Street Journal, and the New York Post, which broke the story. Twitter, for its part, even prohibited its users from commenting on the story. The resulting news blackout may have deprived the public of key information about the 2020 Democratic candidate and could well have been responsible for his election as president.
Unfortunately, as Silberman points out, Sullivan has “constitutionalized” this media bias. Since it is based on a Supreme Court interpretation of the First Amendment, it cannot simply be overturned by Congress. As reluctant as the court may be to modify a long-standing position, Silberman believes it should recognize that “ideological homogeneity in the media … risks repressing certain ideas from public consciousness just as surely as if access were restricted by government.”
In other words, current media bias, together with the Sullivan case, rises to a constitutional level because it denies the public balanced information that a vibrant democracy requires.
Peter J. Wallison is a senior fellow emeritus at the American Enterprise Institute. His most recent book is Judicial Fortitude: The Last Chance to Rein in the Administrative State.
