As a general rule, things that expand constitutional freedoms are something that is good for citizens and good for our republic. The First Amendment's guarantee of freedom of the press was intended to keep government officials from using their power to force favorable news coverage. The idea was that more freedom would allow more media to compete in the marketplace of ideas. More media meant more chances to keep a check on power and inform citizens.
Federal courts, though, gave additional freedom to the media in the 1964 landmark ruling Times v. Sullivan. In that decision, the Supreme Court ruled that, in a lawsuit for defamation, a public figure plaintiff must prove a reporter acted with actual malice in reporting a story that turned out to be false. Specifically, the person reporting the false news must either know the statement is false, or be acting in reckless disregard of the truth. This set a very high standard for public figures to prevail in a lawsuit over false media reports and largely gave media a very wide latitude to report news with little fear of being sued for getting facts wrong.
Six decades later, that precedent is now beginning to be questioned.
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The world is a different place than it was in 1964. At that time, large media outlets like the New York Times had journalistic standards, a code of ethics and a reputation for accuracy that was a closely guarded asset. In the years since, the internet has revolutionized Americans' access to information. Reporters, columnists and editorial staff are no longer limited to column-inch restrictions on ink-and-newsprint papers. The number of internet-based news organizations has increased exponentially, allowing more competition than ever to provide news. Blogs, podcasts, livestreams and news aggregators also provide an entirely new paradigm that challenges the traditional notions of what constitutes "the press."
In addition to the changes in news programming choices and news consumption, the large traditional newspapers and broadcast media have slowly transformed into a monolithic, liberal institution with a single point-of-view across virtually all outlets. To be sure, this uniformity of perspective likely helped drive the rise of internet media and certainly played a part in the founding of Fox News in the 1990s as an alternative to the single, leftist perspective featured in mainstream media.
Over the past few years, though, traditional media have not only accelerated their decline from reporting news and into their new role as partisan attack dogs, they have thrown off even an appearance of objectivity or journalistic standards. The recent purges of esteemed news staff from the New York Times newsroom suspected of conservative wrong-think removed all doubt that the Gray Lady is now simply an unofficial propaganda branch of the Democratic Party. Other formerly respected American news organizations have fallen to the same fate, though none so spectacularly.
This political uniformity in major media formed the basis for the dissent this week by Senior Judge Laurence Silberman of the Washington, D.C., Federal Appeals Court in urging the overturning of the Supreme Court's landmark Sullivan decision in the case of Tah v. Global Witness Publishing, Inc. Not only did Judge Silberman take aim at a bedrock legal principle supporting an enumerated constitutional right, he took the unusual step of plainly stating in a published legal opinion the outrageous and obvious bias Americans see in their newspapers and on broadcast news. Instead of avoiding cultural or media observations, Silberman plainly stated what is right in front of us all, calling the Washington Post and New York Times "Democratic Party broadsheets" in his argument that the special legal protections afforded the media in the Sullivan case should be reconsidered.
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The media's nonstop assault on President Trump for the entire duration of his presidency, including years of uniform reporting on the Russian collusion hoax as a fact, demonstrates how traditional media have been seized and twisted into a partisan weapon never imagined by our founders nor the Supreme Court at the time the Sullivan case was decided.
Judge Silberman correctly points out the purpose of "a free press is to foster a vibrant trade in ideas," but questions the point of special legal protections for an industry that seems to embrace the very opposite of that purpose for existing. The fact that a senior federal appellate jurist has staked out such a position is a remarkable first sign that one of the foundational building blocks of American civilization has been so abused by the left that it is beginning to crack.
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