from the ooooooh-boy dept
Two years ago, Supreme Court Justice Clarence Thomas shocked a lot of people by arguing — somewhat out of nowhere — that the Supreme Court should revisit the NY Times v. Sullivan ruling. If you’re unaware, that 1964 ruling is perhaps the most important and fundamental Supreme Court ruling regarding the 1st Amendment. It’s the case that established a few key principles and tests that are incredibly important in stopping vexatious, censorial SLAPP suits — often by those in power, against those who criticize.
Now, a DC Circuit appeals court judge — and close friend of Thomas’s — is suggesting that the court toss that standard. And his reasons are… um… something quite incredible. Apparently, he’s mad that the media and big tech are mean to Republicans, and he’s worried that Fox News and Rupert Murdoch aren’t doing enough to fight back against those evil libs, who are “abusing” the 1st Amendment to spew lies about Republicans. As you’ll see, the case in question isn’t even about the media, the internet, or Democrats/Republicans at all. It’s about a permit in Liberia to drill for oil. Really. But there’s some background to go through first.
The key part of the Sullivan case is that, if the plaintiff is considered a “public figure,” then they need to show “actual malice” to prove defamation. The actual malice standard is widely misunderstood. As I’ve heard it said, “actual malice” requires no actual malice. It doesn’t mean that the person making the statements really dislikes who they’re talking about. It means that the person making the statements knew that the statements were false, or made the statements “with reckless disregard for the truth.” Once again, “reckless disregard for the truth” has a specific meaning that is not what you might think. In various cases, the Supreme Court has made it clear that this means that the person either had a “high degree of awareness” that the statements are probably false or “entertained serious doubts as to the truth” of the statements. In other words, it’s not just that they didn’t do due diligence. It’s that they did, found evidence suggesting the content was false, and then still published anyway.
This is, obviously, a high bar to get over. But that’s on purpose. That’s how defamation law fits under the 1st Amendment (some might argue that defamation law itself should violate the 1st Amendment as it is, blatantly, law regarding speech — but by limiting it to the most egregious situations, the courts have carved out how the two can fit together). Five years ago, 1st Amendment lawyer Ken White noted that there was no real concerted effort to change this standard, and it seemed unlikely that many judges would consider it.
Unlike, say, Roe v. Wade, nobody’s been trying to chip away at Sullivan for 52 years. It’s not a matter of controversy or pushback or questioning in judicial decisions. Though it’s been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on… chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial ? at least not from conservatives. There’s been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there’s no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of “hate speech” and other “hurtful” words. It seems unlikely that Trump would appoint any of these.
In short, there’s no big eager group of “overturn Sullivan” judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.
And that’s why Clarence Thomas’s attack on the Sullivan standard was so shocking two years ago. It came basically out of nowhere. Thomas tried to make it all about “originalism”, suggesting that if the framers of the Constitution didn’t set up different standards for public figures, neither should the Supreme Court. Indeed, what was motivating Thomas’ anger at the Sullivan standard seemed to be… that it let too many people be mean to public figures. He even seemed to argue that defamation law should be flipped to be more protective of public figures, since apparently those public figures are delicate little flowers who can’t be forced to face pointed criticism. From his statement:
Far from increasing a public figure?s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (?Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man?); 4 id., at *150 (defining libels as ?malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule? (emphasis added)). Libel of a public official was deemed an offense ??most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.??
In the two years since he wrote that, thankfully, there’s been little other movement in the courts to attack the Sullivan standard. Indeed, as White had suggested, any move to do so seems to be viewed as blatantly conspiratorial. However, now an appeals court judge has done exactly what Thomas seemed to be signaling he wanted. And, perhaps not surprisingly, that judge happens to be not just a close friend of Clarence Thomas, but the judge who convinced Clarence Thomas to become a judge in the first place.
Judge Laurence Silberman has been on the DC Circuit since 1985, and has been on “senior status” since 2000. But apparently he’s got a real bone to pick with the Sullivan standard. In an absolutely incredible back-and-forth majority opinion and dissent in a defamation case, it is made quite clear that Silberman hates the Sullivan actual malice standard, believes the media is super biased and mean to conservatives, and is no fan of the two other judges on the panel, Judge Sri Srinivasan (currently the Chief Judge on the DC Circuit) and Judge David Tatel.
Both the majority opinion, by Tatel with Srinivasan joining, and the dissent, snipe at the other side in quite pointed ways. But we’ll get to that. First, the details of the case. Without going too deep into the weeds, it involves a deal in which Exxon sought to buy an oil drilling license from Liberia. There had been concerns about corruption regarding oil licensing deals in Liberia in the past — including the very specific plot that Exxon was seeking to drill in. Liberia had put together a committee to help oversee these kinds of negotiations. After the deal — the largest ever for Liberia — was completed, the National Oil Company of Liberia awarded bonuses to the negotiators on the committee. Two of those negotiators, Christiana Tah and Randolph McClain, were Liberia’s Minister of Justice and the CEO of the National Oil Company of Liberia. Each received a $35,000 bonus.
Global Witness, a non-profit that tries to highlight corruption and human rights violations related to “natural resource exploitation” put out a report alleging that these bonuses were bribes to get the deal to go through. Accusing someone of accepting a bribe is, at least on its face, a much more serious claim and could actually be defamatory (unlike many cases we see where people scream defamation over opinions). However, this case ran into a big problem: the lack of actual malice, which allowed the district court to dismiss the case relatively quickly (as an aside, Global Witness also sought to use DC’s anti-SLAPP law, but unfortunately since the DC Circuit has said for years that DC’s anti-SLAPP law cannot be used in federal court that failed at both the district and the appeals court level).
Here, the majority opinion explains (in quite readable fashion!) the actual malice standard, and why Tah and McClain failed to establish it. For those who want a nice summary of how actual malice works, the opinion is a good summation:
The actual malice standard is famously ?daunting.?
McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C.
Cir. 1996). A plaintiff must prove by ?clear and convincing
evidence? that the speaker made the statement ?with
knowledge that it was false or with reckless disregard of
whether it was false or not.? Jankovic III, 822 F.3d at 589?90
(second part quoting New York Times Co., 376 U.S. at 279?80).
?[A]lthough the concept of reckless disregard cannot be fully
encompassed in one infallible definition,? the Supreme Court
has ?made clear that the defendant must have made the false
publication with a high degree of awareness of probable
falsity,? or ?must have entertained serious doubts as to the truth
of his publication.? Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted)
(internal quotation marks omitted); see also id. at 688 (using
these formulations interchangeably). The speaker?s failure to
meet an objective standard of reasonableness is insufficient;
rather the speaker must have actually ?harbored subjective
doubt.? Jankovic III, 822 F.3d at 589.
But soon after this, the barbs at Silberman begin. The ruling notes that Silberman seems to have his own objective in dissenting — even highlighting that the plaintiffs in the case didn’t even make the argument Silberman so desperately seems to want them to make.
The dissent thinks this is an easy case. ?In Global
Witness?s story,? the dissent asserts, ?Exxon was the briber,?
Dissenting Op. at 1, yet the report admits that ?Global Witness
ha[d] no evidence that Exxon directed NOCAL to pay Liberian
officials, nor that Exxon knew such payments were occurring,?
Report at 31.
Critically, however, neither Tah nor McClain advances
this theory?in their briefing to us, they never even mention the
sentence on which the dissent relies. They make four specific
arguments in support of their claim that Global Witness
possessed actual malice, supra at 8, not one of which is that
Global Witness had no evidence that Exxon was the briber, and
for good reason. At most, the report implies that NOCAL, not
Exxon, was the briber, thus rendering any lack of evidence as
to Exxon?s direction or knowledge of the payments totally
The opinion then even calls out Silberman for trying to coax the lawyers to make the argument he wanted them to make instead of the argument they were actually making:
Indeed, when our
dissenting colleague surfaced his theory at oral argument, it
was so foreign to appellants? counsel that our colleague had to
spoon-feed him after he failed to get the initial hint. See Oral
Arg. Tr. at 10 (?Well, no, it?s worse. Isn?t it stronger than that,
counsel? We have no evidence.?). As our dissenting colleague
himself has made clear, ?we do not consider arguments not
presented to us.? Diamond Walnut Growers, Inc. v. NLRB, 113
F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put another
way, ?appellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.?
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).
Ooof. And, indeed, when you read the dissent, you can see why Tatel was so annoyed. Silberman pretty clearly has a point he wants to make and he’s going to make it whether or not Tah and McClain raised the issue in the case or not. And that point is (1) the actual malice standard is bad, (2) mainstream media companies are bad because they support Democrats, (3) big tech is bad because it support Democrats, and (4) to some extent, Silberman thinks his colleagues on the bench are bad. Oh, but Fox News, Rupert Murdoch, and his buddy Clarence Thomas are all good. It’s… quite incredible. I mean, check out this statement:
My disagreement with the district court is limited to the
actual malice question (my disagreement with the Majority is
A key part of the disagreement is whether Exxon or NOCAL was considered the “briber” in this case, though the reason that’s important seems fairly tortured, so I won’t even get into it here. Suffice it to say, Silberman believes that the story Global Witness wrote is “inherently implausible” and therefore that should satisfy the standard for defamation. But in discussing it, Silberman again throws tremendous shade on his colleagues:
The Majority?s assertion that this argument was never
made by the Appellants leads me to wonder whether we
received the same briefs. In my copy, Appellants argue that
?Global Witness subjectively knew that it had not been able to
determine whether the payments of $35,000 to Christiana Tah
and Randolph McClain were corrupt bribery payments.
Yet . . . Global Witness proceeded to present to readers the
defamatory message that in fact  Tah and  McClain had
taken bribes.? Appellant Br. 36 (emphasis in original). That
sounds to me a whole lot like accusing Global Witness of
publishing its story with no evidence to back it up. The
Majority, moreover, faults me for assessing the inherent
(im)plausibility of Global Witness?s story, without a specific
request from Tah and McClain to do so. But (as discussed)
?inherently implausible? is a legal standard by which we assess
Appellants? arguments?not an argument to be advanced.
And from there, Silberman is off to the races, he spends a few pages accusing the majority of making stuff up, before finally getting around to the point he really wants to make. He wants to take Justice Thomas up on the offer to get rid of the actual malice standard entirely:
After observing my colleagues? efforts to stretch the
actual malice rule like a rubber band, I am prompted to urge the
overruling of New York Times v. Sullivan. Justice Thomas has
already persuasively demonstrated that New York Times was a
policy-driven decision masquerading as constitutional law. See
McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring
in denial of certiorari). The holding has no relation to the text,
history, or structure of the Constitution, and it baldly
constitutionalized an area of law refined over centuries of
common law adjudication. See also Gertz v. Robert Welch,
Inc., 418 U.S. 323, 380?88 (1974) (White, J., dissenting). As
with the rest of the opinion, the actual malice requirement was
simply cut from whole cloth. New York Times should be
overruled on these grounds alone.
He at least acknowledges that it would be “difficult” to get the Supreme Court to “overrule such a ‘landmark’ decision,” noting correctly that it would “incur the wrath of press and media.” And it would, because it would open up the media (and basically everyone else) to a bunch of censorial SLAPP suits. Silberman then reminisces about pushing the Supreme Court to overrule another “similarly illegitimate constitutional decision” — one that has been quite important in allowing people whose civil rights were violated by police to seek redress. He goes on to whine that other judges, including then Supreme Court Justice Kennedy, got upset with him for urging such an overturning of precedent. Kennedy, responding to Silberman, suggested that “we must guard against disdain for the judicial system.” Silberman seems to relish his contrarian position:
To the charge of disdain, I plead guilty. I readily admit
that I have little regard for holdings of the Court that dress up
policymaking in constitutional garb. That is the real attack on
the Constitution, in which?it should go without saying?the
Framers chose to allocate political power to the political
branches. The notion that the Court should somehow act in a
policy role as a Council of Revision is illegitimate. See 1 The
Records of the Federal Convention of 1787, at 138, 140 (Max
Farrand ed., 1911). It will be recalled that maintaining the
Brezhnev doctrine strained the resources and legitimacy of the
Soviet Union until it could no longer be sustained.
He then goes through the details of the Sullivan ruling, arguing that it was clear judicial activism, and insists that such a ruling would never have happened today. Then he complains that it has given the press way too much power:
There can be no doubt that the
New York Times case has increased the power of the media.
Although the institutional press, it could be argued, needed that
protection to cover the civil rights movement, that power is now
abused. In light of today?s very different challenges, I doubt
the Court would invent the same rule.
As the case has subsequently been interpreted, it allows
the press to cast false aspersions on public figures with near
And then it’s all “those media orgs are so mean to my friends.”
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. (I do not mean to defend or criticize the behavior of
any particular politician). 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.
Also, big tech is bad:
As has become apparent, Silicon Valley also has an
enormous influence over the distribution of news. And it
similarly filters news delivery in ways favorable to the
Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The
Atlantic (2020) (?Within a few hours, Facebook announced that
it would limit [a New York Post] story?s spread on its platform
while its third-party fact-checkers somehow investigated the
information. Soon after, Twitter took an even more dramatic
stance: Without immediate public explanation, it completely
banned users from posting the link to the story.?).
What does this have to do with a case regarding oil drilling in Liberia? You know as much as I do. But don’t worry, Judge Silberman wants you to know that at least there’s Rupert Murdoch to step in and balance the scales at least somewhat. Really. I’m not kidding.
To be sure, there are a few notable exceptions to
Democratic Party ideological control: Fox News, The New
York Post, and The Wall Street Journal?s editorial page. It
should be sobering for those concerned about news bias that
these institutions are controlled by a single man and his son.
Will a lone holdout remain in what is otherwise a frighteningly
orthodox media culture? After all, there are serious efforts to
muzzle Fox News. And although upstart (mainly online)
conservative networks have emerged in recent years, their
visibility has been decidedly curtailed by Social Media, either
by direct bans or content-based censorship.
He also has another footnote attacking the 1st Amendment rights of the internet companies, which he insists — without any actual evidence, because none exists — are “biased” against his Republican friends.
Of course, I do not take a position on the legality of big
tech?s behavior. Some emphasize these companies are private and
therefore not subject to the First Amendment. Yet?even if correct?
it is not an adequate excuse for big tech?s bias. The First Amendment
is more than just a legal provision: It embodies the most important
value of American Democracy. Repression of political speech by
large institutions with market power therefore is?I say this
advisedly?fundamentally un-American. As one who lived through
the McCarthy era, it is hard to fathom how honorable men and
women can support such actions. One would hope that someone, in
any institution, would emulate Margaret Chase Smith.
He then proceeds to complain about how the media and big tech are helping Democrats.
There can be little question that the overwhelming
uniformity of news bias in the United States has an enormous
political impact. That was empirically and persuasively
demonstrated in Tim Groseclose?s insightful book, Left Turn:
How Liberal Media Bias Distorts the American Mind (2011).
Professor Groseclose showed that media bias is significantly to
the left. Id. at 192?197; see also id. at 169?77. And this
distorted market has the effect, according to Groseclose, of
aiding Democratic Party candidates by 8?10% in the typical
election. Id. at ix, 201?33. And now, a decade after this book?s
publication, the press and media do not even pretend to be
neutral news services.
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. 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.
And that’s how it closes. Even if there are legitimate reasons to question the “actual malice” standard, to go on an unhinged Fox News-style rant about “anti-conservative bias” seems particularly ridiculous. It sure looks like Silberman has been spending a bit too much time believing propaganda, and is seeking to torpedo a free press in response.
Filed Under: 1st amendment, actual malice, bias, big tech, clarence thomas, dc circuit, free speech, laurence silberman, liberia, media, news, oil drilling, section 230, supreme court