IT’S NOT EVERYDAY that The New York Times and The Washington Post get called out by a federal appeals court judge, but that’s what happened when Judge Laurence Silberman of the District of Columbia Court of Appeals partially dissented in a case called Tah v. Global Witness last week. He didn’t give the two publications an exclusive. Indeed, he called them “Democratic Party Broadsheets,” but also noted the news section of The Wall Street Journal leaned that way, too, as did many major broadcast and cable stations and Big Tech. “One-party control of the press and media is a threat to a viable democracy,” he said.
Tah is a defamation case, and the common law precedent is a 1963 case, New York Times Co. v. Sullivan, which has been cited as authority for decades. It held a plaintiff must prove a defendant acted with “actual malice,” meaning with knowledge that his statement was false or with “reckless disregard for the truth.” Silberman believes the Supreme Court should overturn the “actual malice” rule altogether because it protects major media, i.e., the Democratic Broadsheets “to cast false aspersions on public figures with near impunity.”
While Silberman acknowledges a very ugly truth about the state of media in the U.S. today, and perhaps the effects of that truth, he is failing to recognize how sacrosanct our First Amendment is. Or how the scienter requirement from Sullivan helped to balance First Amendment rights with the notion that an overly broad reading of free speech cannot mean those in public life cannot have a corresponding interest in not being defamed.
Silberman had to have been interested in a New York Supreme Court case published the same week where a Justice Charles Wood excoriated The New York Times for its “reckless disregard” and “actual malice” when two of their reporters, Maggie Astor and Tiffany Hsu, used deception, presenting opinion as fact, in articles which denigrated and defamed Project Veritas, a whistleblower organization that has made some Democrats the subject of their investigations. That lawsuit will now proceed against the paper. The complaint can be read here. The decision can be read here. The First Amendment is protected in this case, as is the Sullivan test. Both can and should be.
sua sponte 