Fox News Would Be in Trouble without the ‘Actual Malice’ Standard
By Erik Wemple
The Washington Post
D.C. Circuit Senior Judge Laurence H. Silberman is worried about media homogeneity in the United States. Mainstream press organizations, he wrote in a much-discussed tract published on Friday, err in the leftward direction. “Two of the three most influential papers (at least historically), the New York Times and The Washington Post, are virtually Democratic Party broadsheets,” wrote Silberman as part of a dissent in a defamation case published on Friday. And TV news presents pretty much the same tilt, he argues. Exceptions to “Democratic Party ideological control,” writes Silberman, include the New York Post, Fox News and the Wall Street Journal’s editorial page.
Too bad the judge’s proposed solution to this alleged national media imbalance could well exacerbate it.
Like Supreme Court Justice Clarence Thomas, Silberman wants to ditch the landmark Supreme Court ruling that underlays the media’s aggressive coverage of politicians, celebrities and business moguls. In its 1964 decision in New York Times v. Sullivan, the court declared a high standard for public figures seeking to sue media organizations for defamation. Such plaintiffs have to prove “actual malice,” meaning that the outlet either knew that the reporting was false or acted with reckless disregard to its truth. The case stemmed from a city commissioner in Montgomery, Ala. — L.B. Sullivan — who objected to statements in a Times advertisement seeking assistance for the defense of Martin Luther King Jr.
In his dissent, Silberman nodded to the ruling’s “understandable” origins, noting that Southern authorities in the civil rights era were seeking to snuff out critical reporting from the “northern press.” Then the venerated judge made a much-talked-about pivot: “Although the institutional press, it could be argued, needed that protection to cover the civil rights movement,” the judge wrote, “that power is now abused.” New York Times, he argued, has given the press the ability to “to cast false aspersions on public figures with near impunity.”
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