by Mitch Kokai
Senior Political Analyst, John Locke Foundation
A federal appeals court judge issued an extraordinary opinion Friday attacking partisan bias in the news media, lamenting the treatment of conservatives in American society and calling for the Supreme Court to overturn a landmark legal precedent that protects news outlets from lawsuits over reports about public figures.
D.C. Circuit Senior Judge Laurence Silberman’s diatribe, contained in his dissent in a libel case, amounted to a withering, frontal assault on the 1964 Supreme Court decision that set the framework for modern defamation law — New York Times v. Sullivan.
Silberman said the decision, requiring public figures to show “actual malice” to recover against a news organization for libel, was a “policy-driven” result that the justices simply invented out of whole cloth.
“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,” the Ronald Reagan appointee wrote.
Silberman echoed and approvingly cited an opinion Justice Clarence Thomas issued two years ago, questioning the rationale of New York Times v. Sullivan and calling for the high court to revisit the decision. “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law,” the judge wrote.
But the exceptional aspect of Silberman’s opinion was not its legal arguments, but the protracted airing of the judge’s evidently deep-seated, pent-up grievances that conservatives are being oppressed by overwhelmingly liberal news media, academia and technology companies. That has created “a frighteningly orthodox media culture,” he wrote. …
… Silberman slammed the New York Times and the Washington Post as “virtually Democratic Party broadsheets.” He added: “Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.”