Judge Laurence Silberman published a dissent on Friday accusing the media of liberal bias, praising Fox News, and attacking “Big Tech” for allegedly censoring conservatives, and warned that “one-party control of the press” may soon lead to an “authoritarian or dictatorial regime” in the United States.
Silberman’s dissent was a response to a rather minor opinion issued by his court, the U.S. Court of Appeals of the District of Columbia Circuit, involving a defamation lawsuit. The case involved a report published by Global Witness, an international human rights organization, accusing two former Liberian officials, Christiana Tah and Randolph McClain, of accepting bribes from oil giant Exxon. Tah and McClain sued Global Witness for defamation. Because they are public officials, they are obligated to demonstrate that the organization lied about them with “actual malice” under the Supreme Court’s landmark 1964 decision New York Times v. Sullivan. That standard required the plaintiffs to prove that Global Witness knew it was lying or acted with “reckless disregard” for the truth. By a 2–1 majority, the D.C. Circuit held that Tah and McClain “failed to plausibly allege” actual malice and tossed their lawsuit.
Silberman, a senior judge who was appointed by Ronald Reagan in 1985, dissented. His opinion began by contesting the majority’s conclusions—then veered into an extraordinary attack on precedent, the press, and specific social media companies, particularly Twitter. Silberman urged the Supreme Court to overturn New York Times v. Sullivan, condemning the ruling as “a policy-driven decision masquerading as constitutional law.” Upholding decisions that “dress up policymaking in constitutional garb,” he wrote, is “the real attack on the Constitution” and fundamentally “illegitimate.” Silberman also dismissed adherence to precedent as “a constitutional Brezhnev doctrine,” in reference to former Soviet Union leader Leonid Brezhnev’s claim that—in Silberman’s words—once “a country has turned communist, it can never be allowed to go back.”
Lower court judges occasionally criticize Supreme Court precedent, and this section of Silberman’s opinion, while acidic, is not out of bounds. What is shocking is what comes next. Silberman accused the American media of “bias against the Republican Party,” calling the putative phenomenon “a long-term, secular trend going back at least to the ’70s.” He continued:
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.
Silberman also explicitly condemned “Candy Crowley’s debate moderation” of the second debate between Barack Obama and Mitt Romney on CNN, which took place nine years ago.
The judge then launched into an assault on “Silicon Valley,” which, he wrote, “filters news delivery in ways favorable to the Democratic Party.” He chastised Twitter for restricting the New York Post’s Hunter Biden laptop story shortly before the 2020 election. And he implied that social media “censorship” may somehow violate the First Amendment, even though the constitutional guarantee of free speech applies only to the government and, in fact, safeguards private companies’ right to disassociate from speech they dislike. Yet Silberman asserted that the First Amendment “is more than just a legal provision: It embodies the most important value of American Democracy.” He added: “Repression of political speech by large institutions with market power therefore is—I say this advisedly—fundamentally un-American. As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions.”
Silberman praised the “few notable exceptions to Democratic Party ideological control,” including “Fox News, The New York Post, and The Wall Street Journal’s editorial page.” But he fretted that “these institutions are controlled by a single man and his son”—Rupert and Lachlan Murdoch. “Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture?” he asked. “After all, there are serious efforts to muzzle Fox News. And 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.”
In reality, social media companies do not censor conservatives, according to an exhaustive study recently released by the NYU Stern Center for Business and Human Rights. To the contrary, conservatives dominate social media today. But given Silberman’s charge of “bias at academic institutions,” he would presumably reject the findings of the NYU study.
In closing, Silberman cautioned that ostensible media bias in favor of Democrats may destroy the American republic. “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,” he concluded. “It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy.”
Last June, Silberman drew national attention for sending a courtwide email accusing Sen. Elizabeth Warren of seeking “the desecration of Confederate graves” by proposing a bill to rename military bases that are named after Confederate officers. (Ironically, he appeared to be responding to misinformation promoted by Fox News, as Warren’s measure did not actually apply to gravesites.) Although the 85-year-old took senior status in 2000, allowing him to reduce his caseload, Silberman remains fairly active on the D.C. Circuit. He was a hugely influential figure for today’s conservative legal movement; Justice Amy Coney Barrett clerked for him and has said that he “really taught me a lot.”
Now Silberman has seemingly adopted the approach to judging taken by many Donald Trump appointees who treat opinions as opportunities to air their grievances about liberals. His dissent on Friday aligns with the new conservative approach to judicial writing, which favors brazen partisanship and overheated rhetoric. Silberman’s career may be in its final chapter, but a new generation of Trump judges who idolize him are just beginning to turn his dreams into legal reality.
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