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By David McPeak, Web Editor
On March 19, 2021, Judge Laurence Silberman of The United States Court of Appeals for the District of Columbia Circuit resurrected the debate over defamation law with his blistering dissent in Tah v. Global Witness Publishing Inc.[1] Similar to recent high-profile defamation cases[2], The DC Circuit ruled on whether the defamation claim was properly dismissed upon a Rule 12(b)(6) motion pursuant to the Federal Rules of Civil Procedure.[3] In Tah, executives of The National Oil Company of Liberia (“NOCAL”) sued Global Witness Publishing Inc, (“Global Witness”) a human rights organization, over a report that allegedly defamed NOCAL executives who were conducting an oil-license transaction involving Exxon Mobil.[4]
The allegations are what one might expect to read in an opinion discussing the merits of a defamation claim involving an international oil licensing deal. Specifically, the Report, entitled Catch Me if You Can, alleged improper behavior on the part of the executives including bribery.[5]
The facts of the case—though far from benign—are hardly capable of stirring debate on their own. Instead, Judge Silberman’s dissent is a rare example of a court opinion capable of sending shockwaves throughout legal circles while eliciting discussion on the continued viability of a constitutional rule fashioned nearly sixty years ago. That rule stems from the Supreme Court’s watershed 1963 decision in New York Times v. Sullivan, which has been interpreted by most courts as insulating media companies from most defamation claims. Judge Silberman excoriates this interpretation of New York Times’ doctrinal framework and characterizes his colleague’s application of the rule in Tah as “profoundly erroneous.”[6]
Judge Silberman predicts the majority’s application of the New York Times rule will effectively distort libel law and create a circuit-split in how courts must apply the rule at the 12(b)(6) stage.[7] To that end, Silberman points to the Second Circuit which recently held that “the test is whether the complaint is plausible, not whether it is less plausible than an alternative explanation” when considering a 12(b)(6) motion in the libel context.[8]
While making his distaste for the New York Times “actual malice” rule patent, Judge Silberman professes to have “faithfully applied the rule in [his] dissent.”[9] Under his examination of the record, he charges Global Witness with “[knowing] it lacked any support” to insinuate that NOCAL executives accepted bribes.[10] These facts, he contends, are “sufficient to infer—on this basis alone—that [Global Witness] acted with knowing disregard for the veracity of its publication.”[11] In other words, Judge Silberman insists the plaintiffs met their burden at the pleading stage under New York Times and the District Court erred in dismissing the case upon Global Witnesses’ 12(b)(6) motion.
In the final nine pages of his dissent, Judge Silberman denigrates the New York Times decision as having “no relation to the text, history, or structure of the Constitution.”[12] He is in good company amongst others in the upper echelon of American legal minds. Most notably, Justice Thomas recently opined that “New York Times v. Sullivan was a policy-driven decision masquerading as constitutional law.”[13]
To be sure, Judge Silberman’s dissent admits that the context of New York Times “made the decision attractive as a policy matter.”[14] In a recitation of the history surrounding the landmark decision, he points out that, at the time, libel law was a favored legal tool wielded by southern officials for the purpose of “deterring the northern press from covering civil rights abuses.”[15] To that end, he concedes that “one can understand, if not approve, the Supreme Court’s policy-driven decision.”[16]
Nevertheless, Judge Silberman makes it plain that there is no doubt New York Times “has increased the power of the media” leading to abuse of the special protections once needed to cover the civil rights movement.[17] Underscoring this, he brands the New York Times decision as “a threat to American Democracy,” arguing that—as subsequently interpreted— the holding “allows the press to cast false aspersions on public figures with near impunity.” More often than not, media lies and bias are directed towards political conservatives, according to data cited in the opinion.[18] The dissent notes that this has been true since the 1970’s[19], but is measuredly more pronounced today incident the continued economic and ideological consolidation of the press. The result being that legacy media institutions now operate almost exclusively under one-party control.[20]
Here, the dissent points out that the only national mass-media outlets without a left political bent consist of Fox News, The New York Post, and The Wall Street Journal’s editorial page.[21] This should be a “sobering fact” according to Judge Silberman, considering all three are controlled by one family.[22] At the same time, those same outlets (and new conservative up-starts) are subject to social media censorship by Big Tech.[23] The political impact of this consolidation, according to data cited in the dissent, is roughly an 8%-10% advantage to Democratic Party candidates in a typical election.[24]
Without a doubt, Judge Silberman’s forceful critique of the power exercised by the current slate of media companies, bolstered in part by special legal protections conveyed by New York Times and its progeny, serves as a warning flag directed squarely at the Supreme Court. These “fresh considerations” aim to put the Court on notice as to our ability to maintain a viable democracy as one political ideology approaches near-absolute control of the powerful corporate media interests charged with informing the citizenry.[25] Specifically referring to New York Times—Judge Silberman asserts that “it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”[26]
Put more simply, he writes “It must go.”[27]
[1] Tah v. Glob. Witness Publ’g, Inc., Nos. 19-7132, 19-7133, 2021 U.S. App. LEXIS 8046 (D.C. Cir. Mar. 19, 2021).
[2] Palin v. New York Times, 940 F.3d 804 (2d Cir. 2019); McKee v. Cosby, 139 S.Ct. 675 (2019).
[3] Tah v. Glob. Witness Publ’g, Inc., Nos. 19-7132, 19-7133, 2021 U.S. App. LEXIS 8046 at *2 (D.C. Cir. Mar. 19, 2021).
[4] Id at *4.
[5] Id.
[6] Id.
[7] Id. at *15
[8] Id. at *12 (quoting Palin, 940 F.3d at 815).
[9] Id. at *15
[10] Id. at *5
[11] Id. at *6 (applying St. Amant v. Thompson, 390 U.S. 727, 732 (1968).
[12] Id. at *15
[13] Id. (quoting McKee v. Cosby, 139 S.Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari)).
[14] Id. at *17
[15] Id. at *18
[16] Id. at *19
[17] Id.
[18] Id. at *20-21
[19] Id. at *21
[20] Id. at *20
[21] Id. at *22
[22] Id.
[23] Id. at *22-23.
[24] Id. at *23
[25] Id.
[26] Id.
[27] Id. *15
