By Selwyn Duke
“Our judges are as honest as other men, and not more so,” wrote Thomas Jefferson in 1820. “They have, with others, the same passions for party, for power, and the privilege of their corps.” While this is true, one Judge Laurence Silberman may be an exception.
Silberman, of the United States Court of Appeals for the District of Columbia Circuit, emerged from relative obscurity recently when he penned a dissent in the case of Tah v. Global Witness Publishing, Inc. In this case, which Involved defamation, Silberman went far beyond disagreeing with how the majority applied a 1964 “landmark” Supreme Court opinion, New York Times Co. v. Sullivan. He also challenged the very “notion of Supreme Court infallibility,” as one commentator put it.
In a nutshell, the ’64 opinion held that succeeding in a defamation claim required a plaintiff to prove not just that statements made publicly were false and damaging, but that they were motivated by malice (read more about the case here and here.) As a result, public officials basically stopped suing the media because, unlike in Britain, it’s now notoriously difficult to win a defamation case in the United States.
Silberman finds that troubling. But what bothers him even more is that, as he pointed out, “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth.”
Unfortunately, this isn’t uncommon. For the SCOTUS has long been, it appears, buying cloth in bulk.
Read the rest here.
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