CT Blue

There are rumblings on the right that the landmark case of Sullivan vs. New York Times should be overruled. The Sullivan case requires proof of actual malice on a libel defendant’s part when the plaintiff is a public figure. The case does have it’s problems. For instance, it’s not unknown for a plaintiff to become a public figure by virtue of having brought the libel suit in the first place. Still, properly interpreted, on balance, the rule makes sense.

Clarence Thomas has suggested overruling the case, and recently, a right wing court of appeals judge called for completely overturning the case:

Last month, a judge on the U.S. Court of Appeals for the District of Columbia joined Justice Thomas’s plea. In a complicated case involving the sale of oil plots, two Liberian officials sued a watchdog group for implying they had received bribes in order to facilitate the sale. The D.C. Circuit panel found that the officials did not make out a plausible case of actual malice on the part of the watchdog. Judge Laurence Silberman, one of the judiciary’s most prominent conservatives, disagreed with much of the majority opinion, including the interpretation of the evidence. What was newsworthy about his dissenting opinion was the virulence of his attack on the actual malice rule. Sullivan has become “a threat to American democracy,” Silberman wrote. “It must go.”

Silberman’s disdain for the actual malice rule was directly tied to its protection of what he dubbed liberal media who, he wrote, “manufacture[] scandals involving political conservatives.” Finding their bias against the Republican Party shocking, he wrote, “The 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.” He specifically identified as culprits The Washington Post, The New York Times, and the news sections of The Wall Street Journal. (Silberman approves of the Journal’s editorial stance.) He declared that “a biased press can distort the marketplace. And when the media has proven its [sic] 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.”

One can draw one of two conclusions from Silberman’s diatribe and, for that matter, from the push on the right to overrule the case:

Silberman and his ilk actually think that the likes of the New York Times and the Washington Post would be more endangered by overturning the Sullivan case than right wing outlets such as Fox, Newsmax and their brethren, all of which are currently potentially on the hook for billions in damages sought by Dominion and Smartmatic, the voting machine manufacturers. If Sullivan free libel law were fairly applied, no reasonable person could agree with such a conclusion.

The other possibility is that Silberman expects that in a Sullivan free environment, he and his brethren and sisthren (I know that’s not a word, but I’m trying not to be chauvinistic here) would find a way to protect right wing media while slamming the mainstream types. Judges can be endlessly creative and can manufacture distinctions out of thin air, and Silberman must believe that he and his ilk could take care of Fox and Friends. We’ve already seen one judge deny a libel claim against Tucker Carlson, so maybe Silberman thinks they can simply go the same route by declaring that no reasonable person could believe anything they hear on Fox or that anything on said network is just “opinion” and therefore sanction free, while reasonable people do expect to get the truth from the New York Times and nothing therein is merely opinion. Of course, they may come up with something a little less obviously absurd, but in a pinch these rationales would do.

My guess is that Silberman would go with door number two and so would the present court. We’ll know a lot more when we see how the voting machine cases go. It makes no sense to find those companies to be “public figures” for purposes of those cases, nor does it make sense to find that there was no actual malice involved in the various allegations of fraud, nor does it make sense to find that those allegations were merely “opinions”, but my money is on the defendants escaping for one or more of those reasons.