Senior Judge Laurence Silberman of the DC Circuit Court of Appeals knows how to tackle media outrage. His opinion on gun control became the template for the landmark Heller Supreme Court decision that the second amendment is an individual right not limited to militias. Now he’s caused a stir with a dissent suggesting that the New York Times landmark libel judgment against Sullivan should be reconsidered.
Judge Silberman’s partial disagreement comes about in a case in which two former Liberian officials sued the authors of a report suggesting taking bribes (Tah v. Global Witness). The majority opinion upheld a lower court ruling dismissing the case, based on the rationale of the Times v. Sullivan, that the report was not drafted with “actual malice,” which was defined as a reckless disregard for the truth. This is the standard established by the High Court in 1964 that makes it nearly impossible to win public defamation cases against the press – even if the facts reported turn out to be false.
Judge Silberman analyzes the facts and destroys the majority argument regarding the malice even according to the current standard of the Times against Sulllivan. But what is more provocative is that he goes on to say that the Supreme Court created its standard of actual malice all-in-one in the constitution, repealing libel standards that had evolved over centuries in common law.
The judge notes that the Times’ verdict came under unique historical circumstances – the civil rights struggle when southern politicians used the Defamation Act to suppress coverage of and criticism of Jim Crow. But Judge Silberman, whose former judicial officer includes Amy Coney Barrett, says times have changed and the standard of “real malice” has given the press a status above the constitution that harms democracy.
As journalists, we have an interest in bringing Times v. Get Sullivan. We correct mistakes. But we had to defend ourselves against unsubstantiated defamation suits that were eventually dismissed, and the cost is not trivial. The Wall Street Journal has resources to defend its writers, but threats against small publications could put off robust journalism. (The British rule that the “loser” pays the opponent’s legal costs would help here.)