While judges of various ideological stripes seem less deferential to the media now than judges of a few decades ago, the basic underpinnings of the “actual malice” standard do not appear likely to be displaced anytime soon. Whether Silberman’s views about the media are widely held by conservative judges is unclear, but there has been no groundswell of support in the courts for the notion of overruling the protections for the press that the Supreme Court established a half-century ago. Silberman did not delve into the reasons for liberal bias in the media, but declared in a footnote that “they surely relate to bias at academic institutions.” “As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions.” “Repression of political speech by large institutions with market power…is-I say this advisedly-fundamentally un-American,” Silberman wrote. Arguments that the platforms are private businesses and not legally obliged to follow First Amendment standards may be right, the judge said, but don’t absolve social media outlets from engaging in what he termed “censorship.”
The judge also took sides in the ongoing public debate about the duties of social media companies, arguing that they are morally obligated to allow free expression and a diversity of views. The judge cited that as an example of how Silicon Valley “filters news delivery in ways favorable to the Democratic Party.” Silberman also specifically decried Twitter’s decision prior to last fall’s election to ban links to a New York Post story relaying allegations about the contents of a computer that once belonged to Hunter Biden, the son of President Joe Biden. Silberman acknowledged the existence of conservative outlets such as Fox News, but warned of “serious efforts to muzzle” the network. Even the government-supported National Public Radio follows along.” Silberman slammed the New York Times and the Washington Post as “virtually Democratic Party broadsheets.” He added: “Nearly all television - network and cable - is a Democratic Party trumpet. “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….One-party control of the press and media is a threat to a viable democracy.” “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions,” the judge declared. That has created “a frighteningly orthodox media culture,” he wrote. “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law,” the judge wrote.īut the exceptional aspect of Silberman’s opinion was not its legal arguments, but the protracted airing of the judge’s evidently deep-seated, pent-up grievances that conservatives are being oppressed by overwhelmingly liberal news media, academia and technology companies. Sullivan and calling for the high court to revisit the decision.
Silberman echoed and approvingly cited an opinion Justice Clarence Thomas issued two years ago, questioning the rationale of New York Times v. “The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication,” the Ronald Reagan appointee wrote.