Judge Laurence Silberman published a dissent on Friday accusing the media of liberal bias, praising Fox News and attacking “Big Tech” for allegedly censoring conservatives, and warned that “one-party control of the press” may soon lead to an “authoritarian or dictatorial regime” process in the United States.
Silberman’s dissent was a response to a somewhat lesser opinion issued by his court, the United States Court of Appeals for the District of Columbia Circuit, involving a defamation suit. The case involved a report published by Global Witness, an international human rights organization, accusing two former Liberian officials, Christiana Tah and Randolph McClain, of accepting bribes from the oil giant Exxon. Tah and McClain sued Global Witness for defamation. As civil servants, they are required to demonstrate that the organization lied about them with “real malice”, according to the historic Supreme Court decision of 1964 New York Times v. Sullivan. This standard required plaintiffs to prove that Global Witness knew it was lying or acted with “reckless disrespect” for the truth. By a 2-1 majority, the DC Circuit considered that Tah and McClain “failed to plausibly plead” the real malice and gave up the process.
Silberman, a senior judge appointed by Ronald Reagan in 1985, disagreed. His opinion began by contesting the majority’s conclusions – then he sidestepped an extraordinary attack on precedents, the press and specific social media companies, especially Twitter. Silberman asked the Supreme Court to revoke New York Times v. Sullivan, condemning the decision as “a policy-based decision masked by constitutional law”. Supporting decisions that “cover policy formulation with constitutional dress,” he wrote, is “the real attack on the Constitution” and fundamentally “illegitimate”. Silberman also dismissed adherence to the precedent as “a constitutional doctrine of Brezhnev”, in reference to the claim of former Soviet Union leader Leonid Brezhnev that, in Silberman’s words, “once a country has become communist, it can never go back”.
Lower court judges occasionally criticize the Supreme Court precedent, and this section of Silberman’s opinion, while acidic, is not off-limits. What is shocking is what comes next. Silberman accused the American media of “prejudice against the Republican Party”, calling the putative phenomenon “a long-term secular trend that dates back to at least the 1970s”. He continued:
Two of the three most influential articles (at least historically), The New York Times and The Washington Post, are practically informative leaflets from the Democratic Party. And the news section of Wall Street Newspaper leans in the same direction. The guidance of these three articles is followed by The Associated Press and most major newspapers across the country (like the Los Angeles Times, Miami Herald, and Boston Globe) 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 also explicitly condemned the “moderation of the Candy Crowley debate” of the second debate between Barack Obama and Mitt Romney on CNN, which took place nine years ago.
The judge then launched an attack on “Silicon Valley”, which, he wrote, “filters the delivery of news in ways favorable to the Democratic Party.” He criticized Twitter for restricting the story of the New York Post’s Hunter Biden laptop just before the 2020 election. And he implied that social media “censorship” could somehow violate the First Amendment, although the constitutional guarantee of freedom expression applies only to the government and, in fact, to the safeguards the right of private companies to dissociate themselves from the language they don’t like. Still, Silberman said that the First Amendment “is more than just a legal provision: it embodies the most important value of American democracy.” He added: “The repression of political discourse by large institutions with market power is – I say this deliberately – fundamentally anti-American. As someone who lived during the McCarthy era, it is difficult to imagine how honorable men and women can support such actions. “
Silberman praised the “few notable exceptions to the Democratic Party’s ideological control”, including “Fox News, The New York Post, and The Wall Street Journal’s editorial page. “But he was concerned that” these institutions are controlled by a single man and his son “- Rupert and Lachlan Murdoch.” Will a single resistance remain in what would otherwise be a media culture? frighteningly orthodox? ” he asked. “After all, there are serious efforts to gag Fox News. And while conservative start-up networks (mostly online) have emerged in recent years, their visibility has been decidedly reduced by social media, whether through direct bans or content-based censorship. ”
In reality, social media companies do not censor conservatives, according to an exhaustive study released recently by the NYU Stern Center for Business and Human Rights. Instead, conservatives dominate social media today. But, given Silberman’s accusation of “prejudice in academic institutions,” he would probably reject the findings of the NYU study.
In closing, Silberman warned that the ostensible prejudice of the media in favor of the Democrats could destroy the American republic. “It must be kept in mind that the first step in any potential authoritarian or dictatorial regime is to gain control of communications, especially news,” he concluded. “It is fair to conclude, therefore, that one-party control of the press and the media is a threat to a viable democracy.”
Last June, Silberman drew national attention by sending an email to the entire court accusing Senator Elizabeth Warren of seeking “the desecration of Confederate tombs” by proposing a bill to rename military bases named after Confederate officers . (Ironically, he seemed to be responding to Fox News’ misinformation, since Warren’s measure didn’t really apply to graves.) Although the 85-year-old man assumed senior status in 2000, which allowed him to reduce the number of cases, Silberman remains quite active on the DC circuit. He was an extremely influential figure for today’s conservative legal movement; Judge Amy Coney Barrett was a clerk for him and said he “really taught me a lot”.
Now Silberman has apparently taken the judgmental approach taken by many Donald Trump appointees, who treat opinions as opportunities to voice their complaints about liberals. His dissent on Friday is in line with the new conservative approach to judicial wording, which favors blatant partisanship and exaggerated rhetoric. Silberman’s career may be in its final chapter, but a new generation of Trump judges who idolize him is just beginning to turn his dreams into a legal reality.
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