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Judge’s Rant About Bias Gets Today’s Media Landscape Wrong

An inappropriate, outdated, peevish dissent from a respected Reaganite jurist.
March 24, 2021
Judge’s Rant About Bias Gets Today’s Media Landscape Wrong

Many conservatives know and celebrate Justice Antonin Scalia’s solo dissent in Morrison v. Olson (1988), the one in which he said “this wolf comes as a wolf” of a law that limited the president’s power to remove inferior officers. Few remember that Laurence Silberman wrote the appellate decision that Scalia thought should stand. Indeed, although Scalia’s famed dissent is remembered as a commentary on the Supreme Court’s executive removal jurisprudence, Scalia did “not discuss” that topic “at any length.” “For most of it,” he “simply refer[red] the reader to the scholarly opinion of Judge Silberman.”

Silberman has served on the D.C. Circuit (often called the nation’s “second-highest court”) for thirty-five years. He is a distinguished judge, as well as an independent-minded one. “A conservative icon upholds the Affordable Health Care Act,” said the Atlantic of his 2011 opinion declining to strike down the Obama administration’s signature law.

Silberman has never had a high opinion of the news media. “The American working press has, to a man and a woman, accepted and embraced the tenets of judicial activism,” he complained in 1992. Alas, he has let his personal antipathies—and, perhaps, the angst and confusion of our political moment—get the better of him. Last week he unleashed an uncharacteristically hasty, vicious, and illogical assault on what he regards as the “shocking” bias and “un-American” behavior of the American media and technology industries.

The occasion for Silberman’s diatribe was two former Liberian officials’ appeal of a suit against a human rights organization. The appellants accused the appellee of defaming them by claiming that they had accepted bribes. A panel of the D.C. Circuit affirmed the dismissal of the suit. Silberman dissented.

If this seems like it has nothing to do with media or tech companies, that’s because it doesn’t. After setting forth his disagreement with the majority on the fine points of law and fact actually at issue in the appeal, Silberman’s dissent launches into a plea for the Supreme Court to overturn New York Times v. Sullivan (1964), a seminal case establishing that to win a defamation suit, a public figure must prove that a falsehood was said with “actual malice.” Silberman then uses that tangent as an excuse to discuss “one-party control of the press and media” and “big tech’s bias” in the same breath as McCarthyism and the practices of authoritarian regimes.

The crux of Silberman’s argument is his alarm at the “ideological consolidation” of print news, television news, and online social media. Because these institutions have “proven [their] willingness[,] if not eagerness,” to “distort the marketplace” of ideas, Silberman reasons, they should enjoy less protection from defamation suits.

He is not afraid to name names. “The New York Times and The Washington Post” are “virtually Democratic Party broadsheets,” he declares. “Even the government-supported National Public Radio follows along.” “Silicon Valley . . . similarly filters news delivery in ways favorable to the Democratic Party.” True enough, “Fox News, The New York Post, and The Wall Street Journal’s editorial page” are “notable exceptions” in “what is otherwise a frighteningly orthodox media culture.” But “it should be sobering for those concerned about news bias,” Silberman warns, that these “lone holdout[s]” are “controlled by a single man and his son.”

The current “bias against the Republican Party” is, Silberman claims, part of a “secular trend going back at least to the ’70s.” That is an interesting, and telling, dividing line to choose. The late 1960s was precisely when many marginalized voices (e.g., the gay rights movement) started to be heard by the mainstream media. Silberman looks at the media discourse and sees “repression of political speech by large institutions”; but the media will always focus on some matters to the exclusion of others. The true complaint seems to be that certain prominent outlets don’t focus on causes or issues that interest a particular federal judge. That is neither surprising nor cause for concern.

Further, Silberman is simply wrong when he posits an “overwhelming uniformity of news bias in the United States.” Maybe he has in mind the media market of a couple decades ago; he is certainly not describing the market as it stands today. Right-wing radio continues to thrive. Posts by right-wing “new media” stars, such as Ben Shapiro and Dan Bongino, are consistently the most shared material on Facebook. Legacy media outlets are shedding talent (and audiences), while Substack and Spotify are picking them up. Established social-media websites must compete with Clubhouse and TikTok. Fringe viewpoints, meanwhile, remain welcome on Gab and Rumble. The flow of information is more abundant than it has ever been. By comparison, it is the pre-1970s media era—the golden age when, in Silberman’s view, the press treated Republicans fairly—that should be called one of “repression.”

Silberman ignores all this, instead complaining about social-media websites’ “content-based censorship” of some “upstart (mainly online) conservative networks.” Presumably he means OAN and Newsmax. Unlike the outlets Silberman attacks, these networks (not to mention the ones controlled by a single man and his son) can be credibly accused of spreading defamatory lies. It’s astonishing to see a judge salute them as a balancing force while arguing that it should be easier to sue for defamation.

Silberman’s blindness to the expanding and evolving media landscape is somewhat idiosyncratic, at least in degree. His contention that conservatives are being “censored” assuredly is not. The claim of censorship has become a dominant theme on the populist right. Silberman presses that theme to the full, along with several of the fallacies that prop it up.

The judge accepts without question, for instance, that the proper measure of “bias” is how the media treats the two established political parties. He adds, however, that he does “not mean to defend or criticize the behavior of any particular politician.” He thus sets up a false equivalence. By Silberman’s reasoning, the parties should be treated equally even if one of them is led, and shaped, by a Caligulan figure. “Get tougher,” Donald Trump told the crowd on January 6. “Our election victory” was “stolen,” he said. “You’re allowed to go by very different rules,” he said. Go to the Capitol, he said, and give Congress the “pride and boldness that they need to take back our country.” Silberman worries that the press is “a threat to a viable democracy.” Does he feel the same about Trump?

Silberman also buys into the notion that online content moderation—read: QAnon, Stop the Steal, anti-vax, and white-supremacist cranks getting booted from Twitter—is a hill the right should die on. It is not. Like many others who make bold pronouncements about social-media “censorship,” Silberman seems to have thought little about how content moderation works, what speech gets banned, or what speech is popular on alternative sites like Gab and Parler.

“It is hard to fathom,” Silberman writes, “how honorable men and women can support such actions.” By “such actions,” Silberman appears to mean Twitter’s and Facebook’s (concededly hamfisted) suppression of a New York Post story on Hunter Biden’s ties to a Ukrainian energy company. That article violated Twitter’s terms of service, contained dubious claims peddled directly by the Trump administration, and, notwithstanding the sites’ measures, spread widely online all the same. The incident has nonetheless become the bloody red shirt of the populist right’s social-media “censorship” narrative. It is the only example Silberman cites. Put it aside, and what “honorable men and women” are being asked to “support” boils down to privately owned platforms deciding not to amplify people who call for political executions, claim that 5G spreads COVID-19, or liken Jews to the KKK.

The right has overwhelmingly traded productive thinking (how do we get persuasive conservative ideas back into elite institutions?) for petulant fixations (elite institutions are run by liberals who pick on us!). What’s worse, the right’s obsession with the cause of Twitter trolls is producing a kind of death spiral. As very online right-wing populists gain sway over right-wing politics, right-wing institutions adopt the aggrieved, insular tone of the John Birch Society. The corruption of right-wing institutions, in turn, causes reputable conservatives like Silberman to think and sound like very online right-wing populists.

The upshot is that last week a brilliant judge mistook an aimless rant for a judicial opinion.

What is my role in this case—as a judge?” Justice Clarence Thomas often says that to ask this question, in every case, is the best advice on judging he has ever received. He received it from Silberman, who, sadly, seems to have been drained of his own insight by Trumpism.

Corbin Barthold

Corbin Barthold is internet policy counsel at TechFreedom. Twitter: @corbinkbarthold.