Protection of the press is enshrined in the First Amendment of the United States Constitution. But the progressive socialist democrats are now arguing about how far should such protections extend? Especially when some information, propaganda, and disinformation is presented without context or comment? Or, when such comments openly challenge the truthfulness of the information and/or the credibility of the commenter?
Of course, like beauty, disinformation is in the eye of the beholder. It is often defined as any information that challenges the power structure, the orthodoxy, or the prevailing narrative of the day. Pretty much a valid argument for allowing information to be freely presented and argued in the realm of ideas.
Therefore, it is rare, indeed, to find a judge that first describes the essential truths about the current status of the mainstream media with such clarity and suggests that the media should be more liable for slander, libel, and the defamation of individuals who were rendered fair game for disinformation by their status or position, celebrity, or public persona.
So here we find Washington, D.C. Circuit Senior Judge Laurence Silberman, a Reagan appointee (1985) and a good friend of Supreme Court Associate Justice Clarence Thomas, writing an extraordinary dissent in a libel case, “Christiana Tah and Randolph McClain, Appellants v. Global Witness Publishing, Inc. and Global Witness, Appellees” (Case 19-1732).
In this defamation action, two former Liberian officials allege that Global Witness, an international human rights organization, published a report falsely implying that they had accepted bribes in connection with the sale of an oil license for an offshore plot owned by Liberia. The district court dismissed the complaint for failing to plausibly allege actual malice. For the reasons set forth in this opinion, we affirm. The First Amendment provides broad protections for speech about public figures, and the former officials have failed to allege that Global Witness exceeded the bounds of those protections.
For all these reasons, Tah and McClain have failed to plausibly allege that Global Witness acted with actual malice. This deficiency proves fatal not only to their defamation claims but to their false light claims as well. We affirm the district court’s dismissal of the complaint, as well as its denial of the anti-SLAPP motion.
THE QUESTION: to what extent are public figures required to demonstrate “actual malice” to recover damages against a news organization for libel? Silberman quotes Clarence Thomas and argues that the press protection principle is not a constitutional matter but a “policy-driven” ruling that the Supreme Court invented without constitutional authority or precedent.
In writing his dissent, Judge Silberman noted the media's bias, the silencing of conservative voices and argued that the Supreme Court needs to revisit the press protections when defaming public figures.
Some of what the Judge wrote should resonate with every American fighting against increasing authoritarian government and the de facto control of the press by a single political party, media moguls, and tech tyrants.
It is well-accepted that viewpoint discrimination “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace. 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. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8–10% in the typical election.
And now, a decade after this book’s publication, the press and media do not even pretend to be neutral news services.
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.
It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.
After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. 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. As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.
Nevertheless, I recognize how difficult it will be to persuade the Supreme Court to overrule such a “landmark” decision. After all, doing so would incur the wrath of press and media.
An egregious example of the anti-Trump Washington Post reporting (since corrected with a small ‘mealy-mouth header) …
On January 9, 2021, the Washington Post reported that then-President Donald Trump, in a call with Frances Watson, Georgia’s lead elections investigator, had instructed her to “find the fraud.” He also reportedly mentioned that she could become a “national hero.” The information came from a single source described as “an individual familiar with the call who spoke on the condition of anonymity because of the sensitivity of the conversation.”
Two months after publication of this story, the Georgia secretary of state released an audio recording of President Donald Trump’s December phone call with the state’s top elections investigator. The recording revealed that The Post misquoted Trump’s comments on the call, based on information provided by a source. Trump did not tell the investigator to “find the fraud” or say she would be “a national hero” if she did so. Instead, Trump urged the investigator to scrutinize ballots in Fulton County, Ga., asserting she would find “dishonesty” there. He also told her that she had “the most important job in the country right now.” A story about the recording can be found here. The headline and text of this story have been corrected to remove quotes misattributed to Trump.
President Trump urged Georgia’s lead elections investigator to identify wrongdoing in the state’s vote in a December phone call, saying the official would be praised for doing so, according to an individual briefed on the call who spoke on the condition of anonymity because of the sensitivity of the conversation.
Trump placed the call to the investigations chief for the Georgia secretary of state’s office shortly before Christmas — while the individual was leading an inquiry into allegations of ballot fraud in Cobb County, in the suburbs of Atlanta, according to people familiar with the episode.
The president’s attempts to intervene in an ongoing investigation could amount to obstruction of justice or other criminal violations, legal experts said, though they cautioned a case could be difficult to prove. <Source>
This information was included in the Democrat’s second impeachment document…
[Page 12-13] President Trump’s campaign to reverse the election results—and to keep himself in the White House—lasted through the days immediately preceding the assault on the Capitol. On December 23, for instance, President Trump reportedly called one of Georgia’s lead election investigators, urging him to “find the fraud” and claiming that the official would be a “national hero” if he did so.  Footnote 28 referred to: “Amy Gardner, ‘Find the Fraud’: Trump Pressured a Georgia Elections Investigator in a Separate Call Legal Experts Say Could Amount to Obstruction, Wash. Post (Jan. 9, 2021).” <Source: House Trial Brief>
The underlying information and the source were wrong, as later proven by a deleted audio recording of the telephone call found in Watson’s computer’s trash bin. And, what was most disgusting is other mainstream media sources piled on, a number of them claiming to have independently confirmed the information with their own sources. An impossibility since the source created the comments attributed to Trump out of thin air.
Consider the harm that this has done to President Trump – and the nation.
At issue is fundamental American fairness. Why should the press get a free pass to slander individuals, regardless of their position, if the information is knowingly false – especially information arising from leaks and other unauthorized disclosures?
The 2022 turnout must be massive and so decisive that the election results cannot be challenged. However, it is unknown (and rather doubtful) whether the GOP will have the cojones to investigate and prosecute the evildoers.
We are so screwed.
“Nullius in verba.”-- take nobody's word for it!
“Beware of false knowledge; it is more dangerous than ignorance.”-- George Bernard Shaw
“Progressive, liberal, Socialist, Marxist, Democratic Socialist -- they are all COMMUNISTS.”
“The key to fighting the craziness of the progressives is to hold them responsible for their actions, not their intentions.” – OCS "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius “A people that elect corrupt politicians, imposters, thieves, and traitors are not victims... but accomplices” -- George Orwell “Fere libenter homines id quod volunt credunt." (The people gladly believe what they wish to.) ~Julius Caesar “Describing the problem is quite different from knowing the solution. Except in politics." ~ OCS
“The key to fighting the craziness of the progressives is to hold them responsible for their actions, not their intentions.” – OCS
"The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
“A people that elect corrupt politicians, imposters, thieves, and traitors are not victims... but accomplices” -- George Orwell
“Fere libenter homines id quod volunt credunt." (The people gladly believe what they wish to.) ~Julius Caesar
“Describing the problem is quite different from knowing the solution. Except in politics." ~ OCS