That happened Friday when federal appeals court judge Laurence H. Silberman dissented in a defamation case decided by the D.C. Circuit. To understand the significance — and danger — of the Silberman dissent requires understanding Silberman’s place near the apex of the conservative legal pantheon.
At 85, named to the bench by President Ronald Reagan in 1985, he is one of the architects of the conservative legal movement, godfather to many of its current luminaries. So when Silberman speaks, conservative lawyers and judges listen.
On Friday, the notoriously volcanic Silberman — he once said he was tempted to punch a colleague in the nose — didn’t just talk, he thundered. The case, Tah v. Global Witness Publishing, involved two former Liberian officials who claimed they were defamed by a human rights group, Global Witness, that suggested they had accepted bribes in exchange for an oil development license. (The Washington Post joined an amicus brief on behalf of Global Witness.)
The two judges in the majority, David S. Tatel, a Clinton appointee, and Sri Srinivasan, named by President Barack Obama, dismissed the case, applying the “actual malice” test set out in Times v. Sullivan: Did Global Witness act with knowing or reckless disregard of the truth in reporting on public officials?
Silberman used the occasion not merely to disagree with the majority’s application of the Sullivan test, a run-of-the-mill disagreement among judges. Rather, he proceeded to shred the precedent and to call for its overruling. “It must go,” Silberman said of the case.
Then, sounding more like aggrieved columnist than federal judge, he bemoaned, at remarkable length and even more remarkable ferocity, the “dangerous” and “shocking” liberal bias of the modern media.
It’s not uncommon and not out of line for judges to use their opinions to make arguments about the state of the law; dissenting judges, often speaking only for themselves, frequently take even more leeway. But the vitriol of Silberman’s anti-press rhetoric and his use of the forum as an opportunity for an extended rant about media bias unrelated to the case at hand was extraordinary.
He denounced the New York Times and The Washington Post as “virtually Democratic party broadsheets,” and “nearly all television” as “a Democratic party trumpet.” He reached back to 2012 to summon outrage at then-CNN reporter Candy Crowley’s debate moderation, and reached out to chide Silicon Valley for joining in the alleged efforts to suppress conservative voices.
“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,” Silberman warned. “It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy.”
It’s tempting to dismiss this as harmless, if off-base and injudicious, ranting — as merely an angry voice from the Barcalounger, except captured in the volumes of the Federal Report. But this was not just unseemly ranting, it was ranting with a mission: an assault on Times v. Sullivan and on sticking with wrongly decided constitutional precedents.
Silberman isn’t alone in calling for Sullivan to be overruled. Donald Trump as candidate argued to “open up those” libel laws. Justice Clarence Thomas, in a 2019 concurring opinion, said Sullivan and subsequent cases should be reconsidered, calling them “policy-driven decisions masquerading as constitutional law.”
Yes, policy enshrined in the First Amendment — as the court in Sullivan put it, “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
Before Sullivan was decided in 1964, there were no constitutional limits on how states applied their libel laws. That allowed Southern politicians to use libel suits as a weapon to deter national news organizations from covering the civil rights movement. L.B. Sullivan, who sued the Times over a civil rights group’s advertisement that didn’t even mention his name, was a Montgomery, Ala., city commissioner; he won $500,000, then the largest libel award in Alabama history.
With Sullivan, the court imposed a new test when it came to public officials and, soon after, public figures. Even if a statement or news report was false, it couldn’t be the basis for a libel judgment unless it was made with knowing or reckless disregard for the truth.
In Silberman’s telling, the justifications that impelled the court to impose constitutional limits on libel law are turned on their head today: The shield the court afforded the press to help protect democracy instead undermines it by letting biased news organizations operate with impunity. This couldn’t be more wrong. To understand that there is a continuing effort to weaponize libel laws against expressions of disputed opinions, look no further than the Trump campaign’s lawsuits against CNN and the New York Times, both dismissed, and The Washington Post, still pending.
As Silberman acknowledges, the likelihood of the court overturning Times v. Sullivan is low; no justice joined in the Thomas concurrence, although Justice Amy Coney Barrett, who clerked for Silberman, has since joined the court.
But Silberman knows to make legal mischief. His dissent argues that the majority opinion’s approach to applying the actual malice standard conflicted with that of another circuit court, one of the tests the justices use in deciding whether to take a case. And as Silberman well understands, there are more ways to neuter a decision than outright overruling.
There are many threats to American democracy these days. Times v. Sullivan isn’t one of them — it is an essential bulwark in democracy’s defense.