Federal judge says libel law should go
One prominent Washington figure believes the news media have become saturated with liberal bias. The New York Times and Washington Post are “virtually Democratic Party broadsheets,” and the Associated Press and most major newspapers follow their lead. Nearly all television, except for Fox News, is “a Democratic Party trumpet.” And it should be much easier for public officials to sue the press for libel.
Donald Trump? His sentiments, maybe, but the person in question is Laurence Silberman, a judge on the U.S. Court of Appeals in D.C. since 1985. And he put forth his views in a dissenting opinion in a libel case last month that involved no newspapers, TV stations or evidence of media bias.
“The first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news,” Silberman wrote. “It is fair to conclude, therefore, that oneparty control of the press and media is a threat to a viable democracy.”
The only available remedy, he said, is for the Supreme Court to overrule New York Times vs. Sullivan, its unanimous 1964 decision that required government officials suing for libel to prove that the writer knowingly lied about them or recklessly disregarded the truth.
The ruling, later extended to nongovernment public figures, followed a flood of suits by police and officials in Southern states that sought to deter press coverage of civil rights issues by seizing on minor or nonexistent factual errors in news articles and ads to claim huge damage awards. The court has not shown any intent to reconsider the decision, although, as Silberman noted, Justice Clarence Thomas, his friend and fellow conservative, urged his fellow justices to do so in a 2019 opinion.
The 1964 ruling “was a policydriven decision masquerading as constitutional law,” Silberman wrote. “It allows the press to cast false aspersions on public figures with near impunity. The increased power of the press is so dangerous today because we are very close to oneparty control of these institutions.”
He offered no evidence for his assertion of antiRepublican bias, but called it a “longterm, secular trend, going back at least to the ’70s.”
Silberman, now 85, was appointed to the bench by President Ronald Reagan, for whom he had worked as a campaign adviser in 1980. Both Reagan and President George H.W. Bush considered him among their leading candidates for the Supreme Court.
He had previously been an official in the Labor and Justice departments under Presidents Richard Nixon and Gerald Ford and served briefly as acting attorney general during the Watergate scandal that led to Nixon’s resignation. He was later an executive vice president of Crocker National Bank in San Francisco.
Silberman transferred to senior judicial status, with a reduced caseload, in 2000. But he remains a highly visible figure in the judicial world.
Supreme Court Justice Amy Coney Barrett was a law clerk for Silberman after graduating from law school in 1997, and he administered her oath of office as a federal appeals court judge in 2017. She described him to an interviewer last year as “a very important mentor in my life.”
Then there was the unsolicited email Silberman sent to court colleagues in June accusing Sen. Elizabeth Warren, DMass., of “the desecration of Confederate graves” by amending a military spending bill to require removal of Confederate markers from U.S. military cemeteries and the names of Confederate generals from military bases. The
gravesite provision was later dropped from the $740 billion bill, but Congress approved removing the generals’ names from the bases and, after Trump objected, overrode his veto of the funding legislation.
While Trump’s tirades against “fake news” and the rest of his record were ultimately subject to voter approval, federal judges are appointed for life. Unless Congress impeaches him, which is unlikely, Silberman can keep his job as long as he wants.
Gabe Roth, executive director of the judicialaccountability group Fix the Court, said members of the public could file a complaint with Silberman’s court that might prompt fellow judges to advise him to show more restraint, or perhaps to remove him from some future cases. But he said such efforts have rarely succeeded in the past.
“There’s not a lot to be done other than to express disapproval,” Jeremy Fogel, a former federal judge in San Francisco who now directs the Judicial Institute at UC Berkeley Law School, said about Silberman’s recent opinion. “My guess is that having been a judge for so long and perhaps feeling that society has changed around him in
ways he doesn’t like, he’s simply reached the point that he doesn’t care if he’s crossing any lines or offending any core values.”
Another former San Francisco federal judge, Vaughn Walker, author of the 2010 ruling that gave samesex couples the right to marry in California, said it may be time for the Supreme Court to revisit its 1964 libel decision in an age when anyone with computer access can publish their views. But he said Silberman’s outoftheblue opinion was unlikely to change anyone’s mind, and was “rather sad to read.”
While judges are free to question past rulings, “his rant is simply beyond the pale and cer
tainly calls into question his judgment as well as fitness to serve — if not generally, at least in any cases involving the news media or claims of this sort,” said Samuel Terilli, a University of Miami communications professor and former general counsel at the Miami Herald.
The case involved a libel suit by two former Liberian officials against a human rights organization, Global Witness, that issued a report saying they had taken bribes from Exxon. Two judges on Silberman’s court voted to dismiss the suit, saying the former officials had received payments and had not shown that Global Witness knowingly lied about them,
the standard set by the 1964 Supreme Court ruling. Silberman’s dissent said the article contained lies but should be judged under the more permissive pre1964 standard.
“When the media has proven its willingness — if not eagerness — to so distort (the facts), it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power,” he wrote.
Rodney Smolla, a lawyer for the former Liberian officials, said they plan to appeal to the Supreme Court.