Courts

What In the Q Is This Federal Judge Going On About?

At least(?) it's only a dissent.

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Oh, dear. This dissent is WILD, y’all. Like your uncle got into the brandy early at Christmas dinner and is now shouting the latest conspiracy theories from Newsmax to the room as bits of partially chewed breadsticks fly about.

The case is a defamation appeal in the D.C. Circuit. Judge Tatel wrote for the majority, and is joined by Chief Judge Srinivasan, and it’s a fairly unremarkable First Amendment decision. But wooboy, Judge Laurence Silberman’s dissent goes full around the bend. (As a reminder, Silberman last graced these pages for his defense of military assets being named after traitors — you know, Confederate ones — and being promptly and beautifully slapped back by a clerk, because no one else would say anything.)

In the dissent (and thank goodness it’s only a dissent), Silberman has some *thoughts* about New York Times v. Sullivan — you know the foundational First Amendment case — yeah, he wants the Supreme Court to overturn it. Stare decisis? That’s for cucks.

And that’s not just a joke (though it’s a good one). He says the Court “committed itself to a constitutional Brezhnev doctrine” by following precedent. And drops this footnote:

“When forces that are hostile to socialism try to turn the development of some socialist country towards capitalism, it becomes not only a problem of the country concerned, but a common problem and concern of all socialist countries.” Leonid Brezhnev, Remarks to the Fifth Congress of the Polish United Workers’ Party (Nov. 13, 1968). Thus, one [sic] a country has turned communist, it can never be allowed to go back.

Like too many people wrapped up in the conservative echo chamber, Silberman also sees factual reporting as a service to a liberal agenda:

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.

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Might that have something to do with the truth? As one party is increasingly a fan of promulgating lies and blatantly inaccurate statements, is it any wonder news media is still on the side of truth? That isn’t partisan, that’s THE JOB. Tell the truth, no matter who is happy with it.

Slate’s Mark Joseph Stern tweets:

Silberman goes on to hit more far-right dog whistles, slamming Twitter for moderating the Hunter Biden laptop story, writing “there are serious efforts to muzzle Fox News.” He further says the media is under “Democratic Party ideological control” and that’s “a threat to a viable democracy.”

Seriously, the footnotes are also a trip. Like this final, unevidenced assertion: “The reasons for press bias are too complicated to address here. But they surely relate to bias at academic institutions.”

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Judge Silberman took senior status back in 2000. And, wow, lifetime appointments are really something else.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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