Conservatives have long known and argued that the mainstream media is a hotbed of liberalism biased against their causes and candidates – despite denials from defenders of the liberal media that paint such objections as the right simply whining about stories it doesn’t like.
Since the advent of Trump era, though, the national media has veered ever closer to actual political activism on behalf of liberal causes – sold under the guise, offered without evidence, that Donald Trump was so uniquely threatening to the American system that the old rules had to be shelved.
It’s one thing for conservative politicians and mouthpieces to make such claims. But on Friday, a federal judge called out much of the national media by name for journalistic bias that threatens the republic.
Senior Judge Laurence Silberman of the U.S. Court of Appeals in Washington, D.C., who was appointed by President Ronald Reagan, issued his takedown in a libel case.
The case involved a group, Global Witness, that issued a report indicating Exxon had bribed two Liberian officials in an oil deal, even though the group admitted it had no evidence a bribe occurred. The court’s two-judge majority, as had a lower court, rejected the officials’ claim that they had been defamed by the report.
The case hinged on a 1964 U.S. Supreme Court ruling, New York Times v. Sullivan, in which the majority essentially held that public figures cannot be defamed by news reports unless they can prove the publisher or broadcaster acted with actual malice to harm them – that means they knew the comments were false and went forward with “reckless disregard” for the truth.
Silberman, however, didn’t buy it – and he used the Liberian case to call for overhauling the Sullivan rule, especially after watching the majority in this case “stretch the actual malice rule like a rubber band.”
In his dissenting opinion, Silberman argued that the media’s use of Sullivan – which he referred to in his opinion as New York Times – as a shield to its reporting, coupled with its liberal leanings, is undermining the nation’s political health.
“Justice (Clarence) Thomas has already persuasively demonstrated that New York Times (v. Sullivan) was a policy-driven decision masquerading as constitutional law,” Silberman wrote. “The actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone. Nevertheless, I recognize how difficult it will be to persuade the Supreme Court to overrule such a ‘landmark’ decision. After all, doing so would incur the wrath of the press and media. … But new considerations have arisen over the last 50 years that make the New York Times decision (which I believe I have faithfully applied in my dissent) a threat to American Democracy. It must go.”
For background, the New York Times published an ad that contained lies about an Alabama police commissioner. Although state courts sided with the official, the U.S. Supreme Court agreed with the Times, in what was considered a victory to protect newspapers covering the civil rights movement.
Silberman noted that he understood the point of the 1964 decision. But it was still politically motivated, rather than rooted in law, he argued.
“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. … As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity,” the judge wrote.
“It would be one thing if this were a two-sided phenomenon,” he added. “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a ‘bland and homogenous’ marketplace of ideas. It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.”
“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,” Silberman noted.
“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.”
“Ideological homogeneity in the media —or in the channels of information distribution — risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government,” the judge continued.
“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,” he wrote. But, “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.”
“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. There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact,” Silberman maintained. “And this distorted market has the effect … of aiding Democratic Party candidates by 8–10% in the typical election.”
“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,” the judge concluded.
“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.”