- The Washington Times - Friday, March 19, 2021

A federal judge called on the Supreme Court on Friday to overturn a landmark case protecting the news media from defamation lawsuits.

Judge Laurence Silberman said the standard of acting with “actual malice” gave journalists and news organizations free rein to trample on people’s character.

“It allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon,” Judge Silberman, who sits on the D.C. Circuit Court of Appeals, wrote in a lengthy dissent Friday. 

He railed against Silicon Valley’s controls of much of the news media and called the New York Times, Washington Post and Wall Street Journal “Democratic Party broadsheets.”

Judge Silberman, a Reagan appointee, took issue with the Supreme Court’s decision in the historic 1964 case New York Times v. Sullivan that protected the media from libel suits by requiring the defendant to show that the publisher acted with “actual malice” or total and reckless disregard of the truth.

The ruling established that public figures have to prove that a news organization published a false statement about them with knowledge or reckless disregard of its falsity. That’s a higher standard than an everyday citizen would have to show.

Judge Silberman’s views buck conventional legal wisdom.

Ira Lupu, a law professor at George Washington University, said the New York Times v Sullivan decision is vital for the media to be able to hold public figures accountable and said the judge’s dissent sounded like “right-wing criticism.”

“If you are easily held liable for defamation, there are going to be stories you don’t print,” Mr. Lupu said. “We want the press to err on the side of publishing rather than self-censorship.”

Judge Silberman said the 1964 decision was a policy-driven ruling that was intended to protect reporters covering the civil rights movement, but the broad protection now allows the press to run amok.

“The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a “bland and homogenous” marketplace of ideas. It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat,” Judge Silberman wrote.

The case that sparked the fiery dissent was brought by two Liberian men who sued Global Witness, a human rights group, after it suggested in a report they had accepted bribes for an oil license. The men said the report defamed them. 

The D.C. Circuit Court ruled for Global Watch, citing the standard from New York Times v. Sullivan on the requirement to show actual malice.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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