The case centers on a 2018 report from Global Witness Publishing that accused Liberian government officials Christiana Tah and Randolph McClain of accepting bribes from Exxon. Tah and McClain sued Global Witness alleging defamation and their claims were dismissed in Friday’s ruling.
However, in the course of his partial dissent, D.C. Circuit Court Judge Laurence Silberman went on an unprecedented written tirade against the press, in which he argued that the Supreme Court should revisit the landmark 1964 New York Times v. Sullivan ruling that granted the media broad First Amendment protections from being sued by public officials.
“[N]ew considerations have arisen over the last 50 years that make the New York Times decision (which I believe I have faithfully applied in my dissent) a threat to American Democracy,” he write. “It must go.”
“The increased power of the press is so dangerous today because we are very close to one-party control of these institutions,” said Silberman, who was nominated to the federal bench by Ronald Reagan and has been a senior judge on the D.C. Circuit Court since 2000.
“Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s,” Silberman wrote. “Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.”
He accused Silicon Valley of filtering news “in ways favorable to the Democratic Party” and fueling censorship, citing the suppression of the New York Post’s bombshell reporting on Hunter Biden in the final weeks of the 2020 presidential election.
“It is well-accepted that viewpoint discrimination ‘raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace,'” Silberman said. “But ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.”
Silberman also sounded the alarm about the “serious efforts to muzzle” outlets like Fox News that aren’t under “Democratic Party ideological control.”
“It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy,” the judge continued. “It may even give rise to countervailing extremism.
“The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”