“Exploration has no relationship to the text, history or structure of the Constitution, and it has openly constitutionalized an area of law refined over centuries of adjudication of customary law, ”wrote the nominee of Ronald Reagan.
Silberman echoed and approved, citing an opinion that Judge Clarence Thomas issued two years ago, questioning the justification of the New York Times v. Sullivan and asking the high court to review the decision. “Judge Thomas has already persuasively demonstrated that New York Times it was a political decision masked by constitutional law, ”wrote the judge.
But the exceptional aspect of Silberman’s opinion was not his legal arguments, but the prolonged exposure of the judge’s evidently ingrained and repressed complaints that conservatives are being oppressed by the overwhelming liberal news media, academia and technology companies. This created “a frighteningly orthodox media culture,” he wrote.
“The increase in the power of the press is so dangerous today because we are very close to the one-party control of these institutions,” said the judge. “While prejudice against the Republican Party – not just controversial individuals – is quite shocking today, this is not new; it is a long-term secular trend that dates back to at least the 1970s … The control of a press and media party is a threat to a viable democracy. ”
Silberman called the New York Times and the Washington Post “newspapers of the virtually democratic party”. He added: “Almost all television – network and cable – is a trumpet for the Democratic Party. Even the National Public Radio, supported by the government, goes ahead. “
Silberman acknowledged the existence of conservative channels like Fox News, but warned of “serious efforts to muzzle” the network. He didn’t explain further.
Silberman also specifically criticized Twitter’s decision before last fall’s election to ban links to a New York Post story reporting allegations about the content of a computer that belonged to Hunter Biden, the son of President Joe Biden. The judge cited this as an example of how Silicon Valley “filters news delivery in ways favorable to the Democratic Party.”
The judge also took sides in the ongoing public debate over the duties of social media companies, arguing that they are morally obliged to allow freedom of expression and a diversity of views. Arguments that the platforms are private companies and are not legally required to follow First Amendment standards may be right, the judge said, but they do not absolve the media from getting involved in what he called “censorship”.
“The repression of political discourse by large institutions with market power … is – I say this deliberately – fundamentally anti-American,” wrote Silberman. “As someone who has lived through the McCarthy era, it is difficult to imagine how honorable men and women can support such actions.”
Silberman did not investigate the reasons for liberal prejudice in the media, but stated in a footnote that “they certainly relate to prejudice in academic institutions”.
Whether Silberman’s views on the media are widely held by conservative judges is unclear, but there was little support in the courts for the idea of overturning the press protections that the Supreme Court established half a century ago. Although judges of various ideological trends appear less respectful of the media now than judges of a few decades ago, the basic foundations of “real evil” do not seem likely to be replaced anytime soon.
The vehicle for Silberman’s violent speech was a defamation suit that two former Liberian government officials filed against a human rights group, Global Witness, because of a report that officials said implied receiving a bribe in connection with a oil contract.
The majority on the DC Circuit panel found the case quite simple under existing precedents, concluding that Global Witness was protected by the “real malice” standard because it had no persuasive indication that its report was false at the time it was published. The authorities’ denials of irregularities were insufficient to suggest that the report was probably false, Judge David Tatel wrote in an opinion accompanied by Judge Sri Srinivasan.
Tatel retreated in part from Silberman’s rhetoric, including his description of the majority’s legal conclusions as “obviously fallacious”.
Tatel also warned that the arguments put forward by the Liberian authorities in the case had “breathtaking” implications and “would find support for an inference of real malice in a wide range of investigative journalism that ends up criticizing the matter.”
Both judges, for the most part, are appointed Democrats. Tatel is nominated by President Bill Clinton, while Srinivasan was nominated by President Barack Obama.
Silberman’s views on party bias in the media are clearly ingrained and ingrained for a long time. His opinion cites a speech he gave almost 20 years ago condemning what he saw as a tendency for judges to refrain from making difficult decisions that could be poorly received by the liberal press. Speaking to the conservative Federalist Society in 1992, the judge classified these fears as a “greenhouse effect”, taking the name of the New York Times court reporter at the time, Linda Greenhouse. The judge also specifically blamed lawyers who became reporters covering the courts.
“The truth is that lawyer-reporters are among the most unbalanced, the least ashamed, in asserting the value of judicial activism,” said Silberman, according to a Times report. (None of the Times’ Supreme Court reporters at the time was a lawyer.)
The judge’s opinion also contains some passages that can be seen as insubordinate, or at least disrespectful, to the Federal Supreme Court. Silberman, 85, made it clear that he loved the opportunity and did not shy away from it.
“On charges of contempt, I plead guilty. I readily admit that I have little regard for the decisions of the Court covering the formulation of policies in constitutional dress, ”wrote the judge. “This is the real attack on the Constitution, in which – needless to say – the authors chose to allocate political power to political branches. The notion that the Court must somehow act in a political role as a Review Board is illegitimate. “