Reconsidering Times v. Sullivan An influential judge says the ‘actual malice’ standard needs revision.
https://www.wsj.com/articles/reconsidering-times-v-sullivan-11616454219?mod=opinion_lead_pos1
EXCERPTS
“In any case the Silberman opinion ought to inspire some reflection about the low state of the media and its ideological conformity. The survival of a free press depends in part on the First Amendment. But in the long run it also requires support from a public that wants it to be free. A press that violates its privileges with impunity, born of legal protection from a dubious constitutional interpretation, is more vulnerable than righteous journalists think. ”
On the other hand, it’s hard to deny that many in the media have taken a bad turn in recent decades—often under the protection of the actual-malice standard. The public agrees, judging by opinion surveys on collapsing trust in the press.
Think of the way the media trashed the Covington, Ky., high school student for his silence and half smile as he was assailed by an adult after a pro-life rally in 2019. The Washington Post and CNN settled the young man’s lawsuits, but would the outlets have shown more caution without the protection of Times v. Sullivan?
Or recall Sarah Palin’s suit against the New York Times for claiming in 2017 she had incited the deranged man who shot Rep. Gabby Giffords in 2011. The editorial was clearly false, the editing process was remarkably slipshod, and the Times ran a correction. A judge tossed the suit under the actual-malice standard until the Second Circuit Court of Appeals reinstated it, and it is now headed for trial.
Judge Silberman also has the liberal press in a lather because he called them out for one-sided bias. He says the New York Times and Washington Post “are virtually Democratic Party broadsheets,” and that most of the press follows their lead. He says the Journal news section “leans in the same direction,” which we think is wrong. The guiding ethic of our reporters is to play the news straight.
The judge cited our editorial pages, along with Fox News and the New York Post, as rare exceptions. But he noted they are controlled by “a single man and his son”— Rupert and Lachlan Murdoch —and that many Democrats are calling for the giant tech platforms to censor news from conservative publications. He says a press so one-sided is dangerous to democracy.
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