Global Witness was — or should have been — an unexceptional case. The two judges in the majority found that two Liberian officials who sued Global Witness failed to meet the requirement that the human rights organization acted with knowing or reckless disregard for the truth in writing about them.
Silberman used his dissent as an opportunity for score-settling with the Supreme Court and the nation’s media. He offered two reasons Times v. Sullivan should be overruled, both of which are shocking. Neither is correct, and neither offers a legitimate basis for dispensing with the 57-year-old precedent.
The first is that, in Silberman’s view, the ruling bears “no relation to the text, history, or structure of the Constitution” and is “a policy-driven decision masquerading as constitutional law.” According to him, Times v. Sullivan is “a threat to American Democracy” and “must go.” Paraphrasing former Soviet Union leader Leonid Brezhnev as having said that “once a country has turned communist, it can never be allowed to go back,” he accused the Supreme Court of having “committed itself” to a “constitutional Brezhnev doctrine” in its adherence to precedent.
The court’s unanimous decision in Times v. Sullivan set constitutional limits on state defamation laws for the first time, striking the exceedingly difficult and admittedly imperfect balance between the right of public officials not to be defamed by false accusations and the right of a free press to report the news. In its ruling, the court reinforced the bulwark of the First Amendment and American democracy, and the delicate balance it struck remains the appropriate one today. Constitutional rights do not wax and wane with the wind.
The second, more explosive and suspect, reason the judge gave is that, in his opinion, the constitutional policy of free speech that Times v. Sullivan seeks to protect has been turned upside down by what he asserts as fact: that almost every media organization in the country is biased in its reporting against the Republican Party and in favor of the Democratic Party. Note, not against public officials and high officeholders, celebrities, the politically or financially powerful, political or social conservatives, nor even Republicans, but against the Republican Party.
In Silberman’s view, “two of the three most influential papers,” the New York Times and The Post, “are virtually Democratic Party broadsheets,” with the Wall Street Journal’s news pages leaning in that direction. Meanwhile, “nearly all television — network and cable — is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.”
Silberman offered little support for this astonishing indictment of the media. But having concluded that nearly the entire national media distorts the news against the Republican Party and that this “homogeneity in the media … risks repressing [the Republican Party’s] ideas from the public consciousness,” he went on to argue that the media has “abused” its rights to such an extent that it effectively has forfeited its First Amendment protections.
The judge ended his dissent with an unfounded, but no less chilling, warning to the media, the Democratic Party and the Supreme Court: “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.… 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.”
It is tempting to consign the judge’s opinion to the infamous dustbin, and that may be where it ends up. But there is an illuminating silver lining — even if unintended by Silberman. Now, Times v. Sullivan is all but certain to remain the law of the land, the dissent having conclusively demonstrated that the precedent’s First Amendment rule is as essential to a free press as judicial immunity is to an independent judiciary and legislative immunity is to the legislature.
And if the court ever does revisit the case, it assuredly will not be because that decision is an intolerable imposition on the “Brezhnev doctrine,” an illegitimate exercise of constitutional interpretation, or “a threat to American Democracy.” Let alone, for that matter, because the court concludes that the American media is uniformly biased against the Republican Party in favor of the Democratic Party.