Federalist Society’s favorite judge pens hysterical diatribe attacking purported media bias

If you want a glimpse into the how fully the paranoid style has taken over the mental world of even the most elite right wing actors in this country, take a look at this dissent from Laurence Silberman.

Silberman, a federal appellate judge on the DC Circuit, has long been a darling of Federalist Society types. Amy Coney Barrett clerked for him, and he’s been a mentor to a whole generation of right wing judicial cadres. (In 2008 Bush the Lesser awarded Silberman the Presidential Medal of Freedom — an honor whose alumni are beginning to remind me of Talleyrand’s remark that so many noble titles were being created in France that it would soon be a disgrace both not to have and to have one. He is also one of the original Neo-con made men).

A couple of days ago, Silberman decided to use the occasion of a fairly minor libel case to get all prophetic about the need to overthrow the hegemony of our one-party media complex. He did this in a dissent that advocated the overruling of New York Times v. Sullivan, the 1964 case that held that public figures couldn’t win a libel judgment unless they proved “actual malice,” meaning that the purported libeler either knew what they were publishing was false, or published it with “reckless disregard” for whether it was true or not.

This is a very tough standard to meet, which means it’s comparatively hard for public figures to squelch media criticism via quasi-censorious libel suits (The Sullivan case arose in a context in which southern juries would grant huge libel judgments against northern newspapers for reporting on what was actually happening in the terroristic white supremacist regime that was the Jim Crow South. Silberman acknowledges this but says the doctrine was invented out of constitutional thin air, and anyway now things have gone Way Too Far, even though Martin Luther King did speak the truth in that one speech that consisted of exactly one line about how we should not see color).

After ranting about the Sullivan case, Silberman veers off into a hysterical diatribe about how America is on the verge of becoming a one party state because Democrats control almost all of the media (This heterodox insight naturally led a certain Brazilian blogger to achieve a hopefully metaphorical Twitter climax):

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule.

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But see Suzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a “bland and homogenous” marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.

Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s. (I do not mean to defend or criticize the behavior of any particular politician). 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.

As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) (“Within a few hours, Facebook announced that it would limit [a New York Post] story’s spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story.”).

It is well-accepted that viewpoint discrimination “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 387 (1992). But 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.

To be sure, there are a few notable exceptions to Democratic Party ideological control: Fox News, The New York Post, and The Wall Street Journal’s editorial page. It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? 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.

There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. That was empirically and persuasively demonstrated in Tim Groseclose’s insightful book, Left Turn: How Liberal Media Bias Distorts the American Mind (2011). Professor Groseclose showed that media bias is significantly to the left. Id. at 192–197; see also id. at 169–77. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8–10% in the typical election. Id. at ix, 201–33. And now, a decade after this book’s publication, the press and media do not even pretend to be neutral news services.

My favorite detail here is Silberman’s complaint that even the Wall Street Journal‘s actual journalism is biased against Republicans (The saying in the biz is that the WSJ’s op-ed page prints what the Lords of Capital want to read while the news section prints what they need to read).

On one level, Silberman is actually right: the “media” — meaning here the prestige legacy media — are biased against Republicans, in the same way that climate scientists are biased against climate change denialists, astronomers and geologists are biased against the flourishing Flat Earth movement — this is really a thing by the way — historians are biased against Biblical literalists, economists are biased against the idea that tax cuts pay for themselves, etc. etc. etc.

All these people and the institutions they control end up being “biased” against conservative ideas and beliefs, because conservative ideas and beliefs, to the extent they are subject to any empirical verification, are almost always demonstrably false. Simply pointing this out is certainly a form of bias: a bias in favor of truth over falsehood.

But on another level, Silberman’s rant is also characteristic of conservative thought in that, empirically speaking, it has only the loosest relationship to reality, which as has been noted, has a well-known liberal bias.

The notion that Democrats or “the Left” [sic] control “the media” in the United States is utterly preposterous: there is a massive right wing media complex, going far beyond the handful of outlets Silberman cites, that feeds tens of millions of Americans pure right wing propaganda every day, poisoning their minds with ideological garbage in the guise of journalism, and producing lots of people very much like Laurence Silberman: paranoid cranks who believe certifiably crazy things, who nevertheless must be treated with the greatest of deference by our horribly biased prestige legacy media, because of the need for Journalistic Balance in the context of the Two Party System.

There are a bunch of other mangoes in here, including footnotes — always read the footnotes — that argue among other things that the First Amendment sort of kind of applies to private tech companies, at least in penumbral spirit:

Some emphasize these companies are private and therefore not subject to the First Amendment. Yet—even if correct—it is not an adequate excuse for big tech’s bias. The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. 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. One would hope that someone, in any institution, would emulate Margaret Chase Smith.

Oh and this one:

Admittedly, a number of Fox’s commentators lean as far
to the right as the commentators and reporters of the mainstream
outlets lean to the left.

Admittedly.

Also too:

The reasons for press bias are too complicated to address
here. But they surely relate to bias at academic institutions.

And don’t call me Shirley.

This eldritch shriek of pure reactionary resentment against the entire modern world is exactly what fuels the right wing in this country, although its elite actors have traditionally taken care to be a bit more circumspect about the matter.

But as Donald Trump demonstrated over and over again, it turns out there’s actually no need not to just come out once and scream it.