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D.C. Circuit Court Judge Calls for SCOTUS to Remove Libel Protection

By Joseph Fawbush, Esq. on March 22, 2021 | Last updated on August 10, 2021

A rather run-of-the-mill libel case has become the subject of vehement debate after a conservative federal judge sitting on the D.C. Circuit Court of Appeals called the press biased against the Republican Party and proposed that it was time for the Supreme Court to overturn New York Times v. Sullivan, the landmark ruling that has governed libel cases for over a half-century.

"Nearly all television—network and cable—is a Democratic Party trumpet," wrote Senior Judge Laurence Silberman. Further, he argues, most of the press and social media, including the news section of the Wall Street Journal, also display a left-leaning bias.

By Judge Silberman's reckoning, only Fox News, The New York Post, and The Wall Street Journal's editorial pages are fair-minded toward conservatives, and those only because they are all run by the same heroic man and his son. This one-sidedness and orthodoxy is sinister because "one-party control of the press and media is a threat to a viable democracy," Judge Silberman opined in a 23-page dissent that focused more on the media than the case before the court..

A Libel Case Centering on Alleged Bribes

The case underlying the dissent is not particularly noteworthy. Global Witness is an NGO that describes itself as seeking to "break the links between natural resource exploitation, conflict, poverty, corruption, and human rights abuses worldwide." It wrote a report that suggested The National Oil Company of Liberia used payments from ExxonMobil to bribe Liberian officials to secure an oil deal. The story inferred this from $35,000 bonuses given to members of a Liberian government agency who represented the country in negotiations. However, Liberia found no violation of its own law in giving the bonuses (it gave out bonuses to all employees of that government agency for "a job well done").

Two Liberian government officials named in the report filed a defamation suit. The District Court dismissed, finding that the contents of the report were protected by the First Amendment. The D.C. Circuit upheld this dismissal, holding in a 2-1 decision that the officials did not put forth a plausible claim that Global Witness acted with actual malice, the high standard public officials must meet in a libel case.

There is a debatable proposition whether this case could survive a 12(b)(6) motion to dismiss. Both conservative and liberal judges could find themselves on either side of that question, at least to my mind.

What's not debatable is that Judge Silberman clearly saw this as an opportunity to lambaste the media and call for the Supreme Court to revisit New York Times v. Sullivan and the actual malice standard.

Stretching Actual Malice "Like a Rubber Band"

It's here that the dissent gets interesting. Accusing his colleagues of stretching actual malice like a rubber band, Judge Silberman wrote that New York Times v. Sullivan is a "policy-driven decision masquerading as constitutional law" that has become "a threat to American Democracy." Judge Silberman acknowledges that it will be an uphill battle to overturn such a longstanding decision, but highlights in-depth how he previously urged the Supreme Court to overturn Monroe v. Pape and got several Justices on his side (Justices Thomas and Scalia).

Judge Silberman, before targeting the media, also warns that the "constitutionalization" of libel law continues the trend of an expanding sphere of the judiciary at the expense of policymaking branches. He then targeted Justice Kennedy, who had warned in a previous decision against disdain of the judicial system: "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."

As it stands now, Judge Silberman writes, the press can cast false aspersions with near impunity. Because the media is so biased against the right, the decision ultimately has the authoritarian effect of silencing conservative thought. While his views did not represent the majority of the panel in this case, Judge Sullivan's dissent has been highlighted favorably on Fox News, One America News Network, Twitter, The New York Post, and numerous other media outlets.

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