Column: Should Judges Always Honor Crusading Liberal Media?

April 23rd, 2021 5:56 AM

New York Times legal reporter Adam Liptak recently sounded the alarm about “The Supreme Court’s Increasingly Dim View of the News Media.” Naturally, he was upset that some conservative judges aren’t fond of the New York Times vs. Sullivan decision, which makes it nearly impossible for public figures to sue media outlets for libel, since you have to establish a mind-reading standard of “actual malice.”

Liptak began by complaining about appeals court judge Laurence Silberman, who’s not on the Supreme Court. In a recent dissent, he argued “Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. Nearly all television — network and cable — is a Democratic Party trumpet, Even the government-supported National Public Radio follows along.”

The writer thinks this criticism is unfair, instead of being a fact that is proven daily. The Times front page on April 22 had this headline on top: “U.S. to Scrutinize How Minneapolis Handles Policing: Inquiry Signals That White House Aims to Combat Abuses Nationwide.” Below that is the headline “Republicans Sharpen Penalties for Protesters in Flurry of Bills.”

This is fish-in-a-barrel stuff.

Liptak also cited Justice Clarence Thomas noting “the media often seeks to titillate rather than to educate and inform.” If you consider the role NPR and the “Democratic Party broadsheets” played in the titillating (and still-unproven) Anita Hill charges of sexual harassment against Thomas during his confirmation battle in 1991, you might understand his skeptical viewpoint.

A new article in the North Carolina Law Review inspired Liptak's lament. Professors Ronnell Andersen Jones and Sonja West reviewed all the press references in Supreme Court opinions going back to 1794 and found “a marked and previously undocumented uptick in negative depictions of the press by the U.S. Supreme Court.”

Sonja West’s pinned tweet on Twitter is “The press is supposed to be the government's ‘opposition party.’ That's kinda the whole point.” But the media are never the “opposition party” when the Democrats are in power.

When anti-war reporters were digging out the “Pentagon Papers,” they noted Justice Hugo Black wrote that “The New York Times, The Washington Post and other newspapers should be commended for serving the purpose that the founding fathers saw so clearly.”

But decades later, Liptak cited the Citizens United decision, where he claimed Justice Anthony Kennedy cited “the decline of print and broadcast media” and the “sound bites, talking points and scripted messages that dominate the 24-hour news cycle.”

This quotation is distorted. Kennedy was objecting to the idea that media corporations have more freedom to speak than a nonprofit group like Citizens United. Right before that passage, Kennedy was insisting “Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.”

Notice the error here: Even mild and obvious press critiques are somehow comparable to an “increasingly dim view” on freedom of the press. Favoring the free expression of conservatives – Citizens United had made a documentary in 2008 critical of Hillary Clinton – is somehow against the media.

Once again, we see that the liberal media and their academic defenders are great at dishing out criticism, and remarkably horrible at taking it. Mock them, and you endanger the First Amendment. Accuse them, and you’re accusing democracy itself. Freedom of speech is for liberal elites, and not for conservative rabble.

They imply the most disturbing and unacceptable exercise of free speech is to denounce the media as Democratic propagandists. So who is really championing the First Amendment? 


PS: In fact, a Google search for Sonja West finds an NPR story from 2019 in which she’s the only source on Justice Thomas criticizing the “landmark” New York Times v. Sullivan decision.

West claimed it was "considered quite widely and universally to be at the core of our modern First Amendment rights." No, it's not universal. But she gushed -- over a musical backdrop -- that because of that ruling, "now they were free not only to write and cover on the civil rights movement, but they could cover the protests against the Vietnam War...Could cover even the president of the United States in the Watergate scenario.” In short, they could be the Opposition Party against Richard Nixon. This underlines how Judge Silberman was right. Taxpayer-supported NPR follows along in an explicitly partisan way.