Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much

from the ooooooh-boy dept

Two years ago, Supreme Court Justice Clarence Thomas shocked a lot of people by arguing -- somewhat out of nowhere -- that the Supreme Court should revisit the NY Times v. Sullivan ruling. If you're unaware, that 1964 ruling is perhaps the most important and fundamental Supreme Court ruling regarding the 1st Amendment. It's the case that established a few key principles and tests that are incredibly important in stopping vexatious, censorial SLAPP suits -- often by those in power, against those who criticize.

Now, a DC Circuit appeals court judge -- and close friend of Thomas's -- is suggesting that the court toss that standard. And his reasons are... um... something quite incredible. Apparently, he's mad that the media and big tech are mean to Republicans, and he's worried that Fox News and Rupert Murdoch aren't doing enough to fight back against those evil libs, who are "abusing" the 1st Amendment to spew lies about Republicans. As you'll see, the case in question isn't even about the media, the internet, or Democrats/Republicans at all. It's about a permit in Liberia to drill for oil. Really. But there's some background to go through first.

The key part of the Sullivan case is that, if the plaintiff is considered a "public figure," then they need to show "actual malice" to prove defamation. The actual malice standard is widely misunderstood. As I've heard it said, "actual malice" requires no actual malice. It doesn't mean that the person making the statements really dislikes who they're talking about. It means that the person making the statements knew that the statements were false, or made the statements "with reckless disregard for the truth." Once again, "reckless disregard for the truth" has a specific meaning that is not what you might think. In various cases, the Supreme Court has made it clear that this means that the person either had a "high degree of awareness" that the statements are probably false or "entertained serious doubts as to the truth" of the statements. In other words, it's not just that they didn't do due diligence. It's that they did, found evidence suggesting the content was false, and then still published anyway.

This is, obviously, a high bar to get over. But that's on purpose. That's how defamation law fits under the 1st Amendment (some might argue that defamation law itself should violate the 1st Amendment as it is, blatantly, law regarding speech -- but by limiting it to the most egregious situations, the courts have carved out how the two can fit together). Five years ago, 1st Amendment lawyer Ken White noted that there was no real concerted effort to change this standard, and it seemed unlikely that many judges would consider it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

And that's why Clarence Thomas's attack on the Sullivan standard was so shocking two years ago. It came basically out of nowhere. Thomas tried to make it all about "originalism", suggesting that if the framers of the Constitution didn't set up different standards for public figures, neither should the Supreme Court. Indeed, what was motivating Thomas' anger at the Sullivan standard seemed to be... that it let too many people be mean to public figures. He even seemed to argue that defamation law should be flipped to be more protective of public figures, since apparently those public figures are delicate little flowers who can't be forced to face pointed criticism. From his statement:

Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”

In the two years since he wrote that, thankfully, there's been little other movement in the courts to attack the Sullivan standard. Indeed, as White had suggested, any move to do so seems to be viewed as blatantly conspiratorial. However, now an appeals court judge has done exactly what Thomas seemed to be signaling he wanted. And, perhaps not surprisingly, that judge happens to be not just a close friend of Clarence Thomas, but the judge who convinced Clarence Thomas to become a judge in the first place.

Judge Laurence Silberman has been on the DC Circuit since 1985, and has been on "senior status" since 2000. But apparently he's got a real bone to pick with the Sullivan standard. In an absolutely incredible back-and-forth majority opinion and dissent in a defamation case, it is made quite clear that Silberman hates the Sullivan actual malice standard, believes the media is super biased and mean to conservatives, and is no fan of the two other judges on the panel, Judge Sri Srinivasan (currently the Chief Judge on the DC Circuit) and Judge David Tatel.

Both the majority opinion, by Tatel with Srinivasan joining, and the dissent, snipe at the other side in quite pointed ways. But we'll get to that. First, the details of the case. Without going too deep into the weeds, it involves a deal in which Exxon sought to buy an oil drilling license from Liberia. There had been concerns about corruption regarding oil licensing deals in Liberia in the past -- including the very specific plot that Exxon was seeking to drill in. Liberia had put together a committee to help oversee these kinds of negotiations. After the deal -- the largest ever for Liberia -- was completed, the National Oil Company of Liberia awarded bonuses to the negotiators on the committee. Two of those negotiators, Christiana Tah and Randolph McClain, were Liberia's Minister of Justice and the CEO of the National Oil Company of Liberia. Each received a $35,000 bonus.

Global Witness, a non-profit that tries to highlight corruption and human rights violations related to "natural resource exploitation" put out a report alleging that these bonuses were bribes to get the deal to go through. Accusing someone of accepting a bribe is, at least on its face, a much more serious claim and could actually be defamatory (unlike many cases we see where people scream defamation over opinions). However, this case ran into a big problem: the lack of actual malice, which allowed the district court to dismiss the case relatively quickly (as an aside, Global Witness also sought to use DC's anti-SLAPP law, but unfortunately since the DC Circuit has said for years that DC's anti-SLAPP law cannot be used in federal court that failed at both the district and the appeals court level).

Here, the majority opinion explains (in quite readable fashion!) the actual malice standard, and why Tah and McClain failed to establish it. For those who want a nice summary of how actual malice works, the opinion is a good summation:

The actual malice standard is famously “daunting.” McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996). A plaintiff must prove by “clear and convincing evidence” that the speaker made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Jankovic III, 822 F.3d at 589–90 (second part quoting New York Times Co., 376 U.S. at 279–80). “[A]lthough the concept of reckless disregard cannot be fully encompassed in one infallible definition,” the Supreme Court has “made clear that the defendant must have made the false publication with a high degree of awareness of probable falsity,” or “must have entertained serious doubts as to the truth of his publication.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted) (internal quotation marks omitted); see also id. at 688 (using these formulations interchangeably). The speaker’s failure to meet an objective standard of reasonableness is insufficient; rather the speaker must have actually “harbored subjective doubt.” Jankovic III, 822 F.3d at 589.

But soon after this, the barbs at Silberman begin. The ruling notes that Silberman seems to have his own objective in dissenting -- even highlighting that the plaintiffs in the case didn't even make the argument Silberman so desperately seems to want them to make.

The dissent thinks this is an easy case. “In Global Witness’s story,” the dissent asserts, “Exxon was the briber,” Dissenting Op. at 1, yet the report admits that “Global Witness ha[d] no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring,” Report at 31.

Critically, however, neither Tah nor McClain advances this theory—in their briefing to us, they never even mention the sentence on which the dissent relies. They make four specific arguments in support of their claim that Global Witness possessed actual malice, supra at 8, not one of which is that Global Witness had no evidence that Exxon was the briber, and for good reason. At most, the report implies that NOCAL, not Exxon, was the briber, thus rendering any lack of evidence as to Exxon’s direction or knowledge of the payments totally irrelevant.

The opinion then even calls out Silberman for trying to coax the lawyers to make the argument he wanted them to make instead of the argument they were actually making:

Indeed, when our dissenting colleague surfaced his theory at oral argument, it was so foreign to appellants’ counsel that our colleague had to spoon-feed him after he failed to get the initial hint. See Oral Arg. Tr. at 10 (“Well, no, it’s worse. Isn’t it stronger than that, counsel? We have no evidence.”). As our dissenting colleague himself has made clear, “we do not consider arguments not presented to us.” Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put another way, “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

Ooof. And, indeed, when you read the dissent, you can see why Tatel was so annoyed. Silberman pretty clearly has a point he wants to make and he's going to make it whether or not Tah and McClain raised the issue in the case or not. And that point is (1) the actual malice standard is bad, (2) mainstream media companies are bad because they support Democrats, (3) big tech is bad because it support Democrats, and (4) to some extent, Silberman thinks his colleagues on the bench are bad. Oh, but Fox News, Rupert Murdoch, and his buddy Clarence Thomas are all good. It's... quite incredible. I mean, check out this statement:

My disagreement with the district court is limited to the actual malice question (my disagreement with the Majority is much broader).

A key part of the disagreement is whether Exxon or NOCAL was considered the "briber" in this case, though the reason that's important seems fairly tortured, so I won't even get into it here. Suffice it to say, Silberman believes that the story Global Witness wrote is "inherently implausible" and therefore that should satisfy the standard for defamation. But in discussing it, Silberman again throws tremendous shade on his colleagues:

The Majority’s assertion that this argument was never made by the Appellants leads me to wonder whether we received the same briefs. In my copy, Appellants argue that “Global Witness subjectively knew that it had not been able to determine whether the payments of $35,000 to Christiana Tah and Randolph McClain were corrupt bribery payments. Yet . . . Global Witness proceeded to present to readers the defamatory message that in fact [] Tah and [] McClain had taken bribes.” Appellant Br. 36 (emphasis in original). That sounds to me a whole lot like accusing Global Witness of publishing its story with no evidence to back it up. The Majority, moreover, faults me for assessing the inherent (im)plausibility of Global Witness’s story, without a specific request from Tah and McClain to do so. But (as discussed) “inherently implausible” is a legal standard by which we assess Appellants’ arguments—not an argument to be advanced.

And from there, Silberman is off to the races, he spends a few pages accusing the majority of making stuff up, before finally getting around to the point he really wants to make. He wants to take Justice Thomas up on the offer to get rid of the actual malice standard entirely:

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. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). 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. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). 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.

He at least acknowledges that it would be "difficult" to get the Supreme Court to "overrule such a 'landmark' decision," noting correctly that it would "incur the wrath of press and media." And it would, because it would open up the media (and basically everyone else) to a bunch of censorial SLAPP suits. Silberman then reminisces about pushing the Supreme Court to overrule another "similarly illegitimate constitutional decision" -- one that has been quite important in allowing people whose civil rights were violated by police to seek redress. He goes on to whine that other judges, including then Supreme Court Justice Kennedy, got upset with him for urging such an overturning of precedent. Kennedy, responding to Silberman, suggested that "we must guard against disdain for the judicial system." Silberman seems to relish his contrarian position:

To the charge of disdain, I plead guilty. I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb. That is the real attack on the Constitution, in which—it should go without saying—the Framers chose to allocate political power to the political branches. The notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate. See 1 The Records of the Federal Convention of 1787, at 138, 140 (Max Farrand ed., 1911). It will be recalled that maintaining the Brezhnev doctrine strained the resources and legitimacy of the Soviet Union until it could no longer be sustained.

He then goes through the details of the Sullivan ruling, arguing that it was clear judicial activism, and insists that such a ruling would never have happened today. Then he complains that it has given the press way too much power:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule.

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity.

And then it's all "those media orgs are so mean to my friends."

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. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.

Uh... what?

Also, big tech is bad:

As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) (“Within a few hours, Facebook announced that it would limit [a New York Post] story’s spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story.”).

What does this have to do with a case regarding oil drilling in Liberia? You know as much as I do. But don't worry, Judge Silberman wants you to know that at least there's Rupert Murdoch to step in and balance the scales at least somewhat. Really. I'm not kidding.

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.

He also has another footnote attacking the 1st Amendment rights of the internet companies, which he insists -- without any actual evidence, because none exists -- are "biased" against his Republican friends.

Of course, I do not take a position on the legality of big tech’s behavior. Some emphasize these companies are private and therefore not subject to the First Amendment. Yet—even if correct— it is not an adequate excuse for big tech’s bias. The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is—I say this advisedly—fundamentally un-American. As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions. One would hope that someone, in any institution, would emulate Margaret Chase Smith.

He then proceeds to complain about how the media and big tech are helping Democrats.

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. Id. at 192–197; see also id. at 169–77. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8–10% in the typical election. Id. at ix, 201–33. 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.

And that's how it closes. Even if there are legitimate reasons to question the "actual malice" standard, to go on an unhinged Fox News-style rant about "anti-conservative bias" seems particularly ridiculous. It sure looks like Silberman has been spending a bit too much time believing propaganda, and is seeking to torpedo a free press in response.

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Filed Under: 1st amendment, actual malice, bias, big tech, clarence thomas, dc circuit, free speech, laurence silberman, liberia, media, news, oil drilling, section 230, supreme court


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  • icon
    Thad (profile), 22 Mar 2021 @ 9:55am

    Sounds like he wants to open up our libel laws.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2021 @ 9:59am

    That is what you get from making everything political, judges trying to use their position to benefit their chosen political party.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2021 @ 10:59am

      Re:

      Which topic should we stop discussing politically to stop this and other judges from being political? Who went to far and what did they “make political” resulting in this absurd ruling ?

      reply to this | link to this | view in chronology ]

      • identicon
        Paul B, 22 Mar 2021 @ 11:17am

        Re: Re:

        The President of the United States, Also the leader of the Republican Party, clearly said "I want to open up libel laws."

        One party clearly wants to use libel as a means to attack people when called out on lies. This is not a tactic used by the other side at all.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Mar 2021 @ 12:11pm

        Re: Re:

        Read the paragraphs after:-

        He then proceeds to complain about how the media and big tech are helping Democrats.

        That is direct political activism by a judge.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Mar 2021 @ 1:09pm

          Re: Re: Re:

          Citing that makes your original statement even more nonsensical because there is nothing tying it to the judges misconduct! That is like saying COVID-19 happened because you masturbate every night to Barbara Streissand. Even if it was true it would be fucking irrelevant to the actual cause!

          reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 22 Mar 2021 @ 1:57pm

      judges using their position to benefit a chosen political party

      This is not new. The Bush v. Gore case is essentially an indictment of the court system and the ability for mortal human beings to set all personal interests aside to favor logic and rationality. When the stakes are high enough, they can't.

      And the stakes are always that high.

      I don't know what to do that would be better, but I do know not to trust the courts to do what is right over what is pragmatic.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2021 @ 10:05am

    The constitution also didn't differentiate between where people could possess arms; didnt differentiate between law abiding citizens v convicted felons.

    Substitute 2nd amendment for 1st amendment, the many of the teams switch sides for whether to read them literally or not.
    There is nothing in the constitution about exceptions for liable.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2021 @ 5:56pm

      Re:

      No, it differentiated "well-regulated militias" but that's long been negated so shut the fuck up you won already. Guns are so bloody unregulated that they are in a class of their own.

      And those are white convicted felons, yeah? Just an educated guess, but i won't assume.

      reply to this | link to this | view in chronology ]

  • identicon
    Damien, 22 Mar 2021 @ 10:18am

    In a sane world conduct and off-topic diatribes like this would be enough to get a judge impeached and removed from the bench. Sadly, we do not live in a sane world.

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 22 Mar 2021 @ 10:20am

    "Thomas' anger at the Sullivan standard seemed to be... that it let too many people be mean to public figures"

    Except that they made an special case for public figures as an excuse to get away with suppressing such speech without running too obviously afoul of the first amendment like criticizing politicians. If you want to be originalist and treating everyone the same, it would be enforcing the first amendment for discussing regular people not throwing it out for discussing politicians

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 22 Mar 2021 @ 10:34am

      Re:

      I can think of a reason Clarence Thomas might wish it was easier for public figures to sue people who said bad things about them.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2021 @ 10:34am

      Re:

      It's sad you don't understand the distinction. The Constitution defined the limits of government. Politicians ARE government.

      reply to this | link to this | view in chronology ]

      • icon
        crade (profile), 22 Mar 2021 @ 11:14am

        Re: Re:

        The distinction between the government making laws to abridge speech about politicians vs other public figures from an originalist viewpoint?

        It's supposed to limit the government's power to abridge any speech, not just speech about the government

        You think they meant something like
        Congress shall make no law .. abridging the freedom of speech [unless the speech isn't about the government, in that case abridge away]?

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2021 @ 11:11am

    Well, there will be opposes, and Biden has some staff that support 230.
    https://mobile.twitter.com/RaginMode/status/1372652284732182528

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2021 @ 11:22am

    I'm an personally of the opinion that Silberman and Thomas can shove their opinions into a very uncomfortable orifice. Their presence as judges do more disservice to the judiciary than letting the hoi polloi insult snowflake politicians.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 22 Mar 2021 @ 11:32am

    "It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy."

    You mean like refusing to call on reporters you don't like or revoking their press credentials like a spoiled brat when they ask you about things you said on video & now claim you never said?

    These judges spend so much time imagining that the framers are just like them, when the framers probably would have horse whipped the lot of them for what they've done & how they've twisted the intent to meet their personal desires instead of what is best for all citizens.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 22 Mar 2021 @ 11:44am

    'No no, this sword could never cut ME.'

    Funny, if social media really was so friendly to democrats and those poor victimized republicans aren't feeling welcome that sure seems like it would be the free market in action telling them that the majority of people don't agree with them, and I thought republicans were all for letting the free market decide...

    Yet another fool that hasn't realized that if they succeed in 'opening up libel laws' the first people that are going to be dragged before the courts are them and theirs, with their penchant for bullshit and lies.

    reply to this | link to this | view in chronology ]

  • icon
    DocGerbil100 (profile), 22 Mar 2021 @ 12:47pm

    While I think it very probable that there is a better standard for libel to be found than NY Times vs. Sullivan, I am also reasonably confident that Justice Thomas and Judge Silberman are, by far and away, the judges least likely to find it.

    Impartiality in forming legal doctrine surely requires one to at least manage some awareness that being anywhere to the left of far right extremism does not necessarily make a person into a raging communist. Based on their publicly-stated views, I highly doubt that either judge is capable of doing so.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2021 @ 1:15pm

    Another well written article, Mike. Thanks so much for translating techlaw in a reasonable and engaging way.

    reply to this | link to this | view in chronology ]

  • icon
    TaboToka (profile), 22 Mar 2021 @ 2:02pm

    Thomas tried to make it all about "originalism", suggesting that if the framers of the Constitution [blah, blah]

    I suggest that if Thomas is such an origionalist, that he immediately resign from SCOTUS and report to a southern plantation for field work chopping cotton and living in a floorless shack until worked to death.

    After all, no way would the Founders have allowed a three-fifths person to serve on the supreme court, let alone run around unchained.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2021 @ 2:04pm

    and how much has this asshole been paid and by whom? needs to lose the job, that's for sure!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2021 @ 2:45pm

    How do opinions get written? If both sides are taking shots at each other then they both need to know some or all of what the other party has written, so do they get to re-draft after seeing the other opinion?

    Also Silberman sounds like a complete nutjob.

    reply to this | link to this | view in chronology ]

  • icon
    Brainulator9 (profile), 22 Mar 2021 @ 4:04pm

    The real issue here...

    Perhaps this may be a bit too extreme for some, and I admittedly do not 100% believe this, but I'm led to believe that perhaps the reason why the media and Big Tech are so left-wing is because the right-wing mindset is, whether intentionally or not, inherently built on lies, hatred, and general dickery. Perhaps it is not surprising that things like the January 6 Capitol storming was a led by far-right groups.

    If you want a right-wing perspective on this issue, though: https://www.theblaze.com/amp/federal-judge-attacks-scotus-precedent-protecting-left-wing-press-26511 44562

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2021 @ 4:59pm

      Re: The real issue here...

      That isn't an issue with the media or tech- there is no right to absolute moderate position of the Overton Window. Such a thing cannot exist. Just because somebody goes crazy extremist doesn't make their norms valid. Nearly everyone alive today would be considered to have downright radical politics compared to their ancestors even the actual monarchists!

      reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 22 Mar 2021 @ 5:02pm

      Re: The real issue here...

      "I admittedly do not 100% believe this"

      I believe trying to hire software engineers to work at parler is probably a similar task to trying to hire lawyers for trump.. Probably not a large percentage of computer scientists who are anti-science

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Mar 2021 @ 6:04pm

        Re: Re: The real issue here...

        Uh, idk, engineers, man. And i would hardly call most programmers "computer scientists", for whatever value of "science" lives in computer science 99% of the time.

        reply to this | link to this | view in chronology ]

        • icon
          crade (profile), 22 Mar 2021 @ 8:34pm

          Re: Re: Re: The real issue here...

          It's not about the value of the result it's about the process.. Computers don't swallow bullshit nearly as well as people do. "antifa faked it" might get you out of jury duty, but it won't get your drunken idea of tracking feces in comment sections off the ground. Maybe once quantum computing starts to take off though :)

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2021 @ 6:36pm

    So originalist you go monarchist

    The unironic citation of Blackstone as originalist would also call for accepting this. "That the king can do no wrong is a necessary and fundamental principle of the English constitution." That wasn't agreed with in England even as seen by the Civil War and Cromwell let alone the revolutionary war. While he had good ideas that it is better that ten guilty go free than one innocent be unjustly punished because not only is it unjust (although some may try to argue net balance via statistics making that sadly more opinion) is a beautiful understanding of game theory before it was a thing formally : why would one bother following the law if innocence is no guarantee of protection? It encourages a "what you can get away with" view towards the law.

    Common law is based upon old English law but /not/ unconditionally for a reason. It is supposed to be overridden.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2021 @ 7:05pm

      Re: So originalist you go monarchist

      Yeah, common law, AKA the law for commoners.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 22 Mar 2021 @ 8:43pm

      Originalerist

      The times I've read Thomas' legal opinions, he certainly seemed to have the disposition of a Dickens villain glad to dispose of thieving urchins and ragged toshers. A right proper London sort, like a Turpin or a Wargraves.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 22 Mar 2021 @ 8:07pm

    Fuck Clarence Thomas

    The world will be better off when he does us all a favor and dies. Soon Clarence. Please, do it soon.

    reply to this | link to this | view in chronology ]

  • icon
    crazy_diamond (profile), 22 Mar 2021 @ 8:39pm

    It's my opinion that there's a rampant, undisclosed epidemic of late-stage syphillis raging in our judiciary.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    restless94110 (profile), 23 Mar 2021 @ 1:12am

    Difficulties

    It is so difficult to get through an article like this, when it begins with such obvious nonsense. Slander and lies are not simply the press being mean to a group.

    Here's a way for you to check this out for yourself. The next time you read some libelous slanderous nonsense from some "journalist" replace that person or entity they are attacking with Al Sharpton or some other sacred black cow, and see if the "journalist" was just being "mean."

    We all know that that "journalist" would be fried alive at sundown and "canceled" from ever writing another piece of "journalism" again.

    No, it's not just being mean. And it should be against the law. Sullivan does need to be overhauled. The "press" has become the lugenpresse and needs to be reined in.

    reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 23 Mar 2021 @ 2:20am

      Re: Difficulties

      You're really telling on yourself when you use the term "lugenpresse" which is the same term Goebbels used.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 23 Mar 2021 @ 2:31am

        Re: Re: Difficulties

        It's a phrase that also translates roughly as "fake news", a favourite complaint of a certain person. Trumpers have never been subtle about their adherence to Nazism.

        Also, Al Sharpton won't be criticised by the press because he's black? I rarely hear about the guy except from right-wingers who pretend he means something to the modern "left", but that seems like a weird reference in this day and age unless I missed something.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 23 Mar 2021 @ 7:38am

          Re: Re: Re: Difficulties

          "It's a phrase that also translates roughly as "fake news", a favourite complaint of a certain person. "

          Well, yeah, but it's been in popular use within the last century only as the standard terminology of reich nazis in 1930-1940.

          No wonder the stormfronters all pegged to it like flies on shit as soon as Trump started caroling out "Fake News", and dusted off their trusty old stand-by.

          reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 23 Mar 2021 @ 7:36am

      Re: Difficulties

      "The "press" has become the lugenpresse and needs to be reined in."

      Are you even trying any longer? "Lügenpresse" is a slur infamously used exclusively by the nazis to shout down their detractors. It's about as telling an indicator as the N-word to imply exactly where you're coming from.

      At this point I think everyone would just appreciate if you stopped trying to weasel around your true opinions and just came out with what you really want to say.

      Damn, at least the original nazis had the chutzpah to stand up and say it straight. As did the original KKK. But you guys? What part of you is a "Proud Boy" now? Proud over being too much of a coward when not standing in a baying crowd, to say what you actually think?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Mar 2021 @ 3:04am

    And who cares what a judge thinks? If he thinks fundamental law is worthless then what good is his word?

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 23 Mar 2021 @ 7:25am

    Perhaps Judge Silberman..

    was given "senior status" because of his propensity for "senior moments"? This dissent seems so off-the-wall in the context of the case presented that I have to think he's

    In another bit of irony Sidney Powell is using a defense of "no reasonable person would have believed her statements about the stolen election". I guess that will be the new standard for libel/defamation defenses in a world without NYT v. Sullivan. Taking into account the fact that a majority of Republicans believed the election was invalid/stolen as of late February (https://thehill.com/homenews/campaign/540508-majority-of-republicans-say-2020-election-was-invalid- poll) , you can draw your own conclusions about Powell's chances for success.

    Or perhaps you'd rather draw conclusions about the reasonableness of most Republicans.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Mar 2021 @ 10:47am

      Re: Perhaps Judge Silberman..

      I mean, she's right in a sense, no reasonable person should have fallen for the 'stolen election' lie/tantrum but that shouldn't be enough to excuse her words because very clearly plenty of people did and that's had very real, very harmful consequences both short and long term.

      That said I can't help but find it both funny and telling how often the 'I can't be held liable for defamation since obviously no-one sane would believe a word I say' defense gets trotted out by that lot, talk about a backhand to those that do listen to and trust them.

      reply to this | link to this | view in chronology ]


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