Actual malice aids Fox News
District of Columbia Circuit Senior Judge Laurence Silberman is worried about media homogeneity in the United States. Mainstream press organizations, he wrote in a much-discussed tract published on Friday, err in the leftward direction. “Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets,” wrote Silberman as part of a dissent published Friday in a defamation case. And TV news presents pretty much the same tilt, he argues. Exceptions to “Democratic Party ideological control,” writes Silberman, include the New York Post, Fox News and The Wall Street Journal’s editorial page.
Too bad the judge’s proposed solution to this alleged national media imbalance could well exacerbate it.
Like Supreme Court Justice Clarence Thomas, Silberman wants to ditch the landmark Supreme Court ruling that underlays the media’s aggressive coverage of politicians, celebrities and business moguls. In its 1964 decision in New York Times v. Sullivan, the court declared a high standard for public figures seeking to sue media organizations for defamation. Such plaintiffs have to prove “actual malice,” meaning that the outlet either knew that the reporting was false or acted with reckless disregard to its truth. The case stemmed from a city commissioner in Montgomery, Ala. — L.B. Sullivan — who objected to statements in a Times advertisement seeking assistance for the defense of Martin Luther King Jr.
In his dissent, Silberman nodded to the ruling’s “understandable” origins, noting that Southern authorities in the civil rights era were seeking to snuff out critical reporting from the “northern press.” Then the venerated judge made a much-talked-about pivot: “Although the institutional press, it could be argued, needed that protection to cover the civil rights movement,” the judge wrote, “that power is now abused.” The New York Times, he argued, has given the press the ability “to cast false aspersions on public figures with near impunity.”
That’s not hyperbole. In June 2017, a New York Times editorial connected Sarah Palin’s PAC with the murderous Arizona rampage of Jared Lee Loughner in 2011, alleging that it was a case of “political incitement.” There was no evidence for such a link; the Times corrected the editorial. Palin sued, then appealed after the complaint was dismissed. She’s now awaiting a trial at which her lawyers will endeavor to prove “actual malice.”
The generous protections would be fine if the national media were ideologically balanced, Silberman argued. “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.” Again, there’s some backing for the judge’s appraisal: As I noted in 2017, studies have shown that mainstream media newsrooms are staffed by folks who skew liberal. Yet all those liberals at The New York Times and The Washington Post have spent recent weeks documenting the sexual harassment history of Democratic New York Gov. Andrew Cuomo. And if you want to enrage supporters of Hillary Clinton’s 2016 presidential run, mention the Times.
Biased outlets, argued the judge, 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.” In conclusion, The New York Times decision “must go.”
If it does go, though, so might the good fortunes of Silberman’s treasured conservative media counterweights.
Take Fox News, for example: In February, election-technology firm Smartmatic sued Fox News for at least $2.7 billion in damages over allegations that network anchors teamed up with Trump lawyers to smear the company as a co-conspirator in a stolen election. When Fox News filed its motion to dismiss the case, guess what argument it advanced? That Smartmatic was a public figure with a high burden of proof in the litigation. “To state a defamation (or disparagement) claim … Smartmatic must allege facts that, if true, would show that Fox published the allegedly defamatory statements with actual malice — that is, with subjective knowledge that they were false or with reckless disregard for their truth,” notes the network’s filing.
And in another high-profile suit dismissed in federal court last year, former Playboy model Karen McDougal alleged that Fox News host Tucker Carlson defamed her with the false allegation that she’d threatened Donald Trump with the disclosure of their relationship in the 2000s. “Plaintiff is an all-purpose public figure,” claimed Fox News in its motion to dismiss. When civil rights activist DeRay Mckesson sued the network over Jeanine Pirro’s contention that he’d “directed the violence” against police at a protest, Fox News responded that he was “indisputably a public figure.”
On top of the cases in which Fox News cited The New York Times to defend itself in court, there are far more numerous occasions when this ironclad judicial precedent scared off the targets of Fox News propaganda from filing complaints in the first place. So let’s see: Just how would the overruling of The New York Times benefit a news outlet that depends so much upon it in court? And how, more broadly, would it affect ideological diversity in media? Jonathan Peters, a media law professor at the University of Georgia, told me that he’s seen “no serious discussion” about the impact of The New York Times on ideological diversity in media, though there have been other critiques.
When I asked Fox News how it views the judge’s call to end The New York Times, it declined to comment. That makes sense: No other large media organization in the United States leans on its protections like Fox News, primarily because it specializes in “cast[ing] false aspersions on public figures with near impunity,” to borrow Silberman’s handy phrasing.