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First Amendment News 291: Bruce Johnson responds to Judge Laurence Silberman’s attack on NYT v. Sullivan

by
Bruce Johnson

Bruce Johnson (Davis Wright Tremaine)

Last week the United States Court of Appeals for the District of Columbia handed down its ruling in Tah v. Global Witness Publishing, Inc. The case involved a defamation action in which two former Liberian officials alleged that Global Witness, an international human rights organization, published a report falsely implying that they had accepted bribes concerning the sale of an oil license for an offshore plot owned by Liberia. The district court dismissed the complaint for failing to plausibly allege actual malice.

Rodney A. Smolla argued on behalf of the appellants and Chad R. Bowman argued the cause for appellees. By a 2-1 vote, the Court, per Judge David S. Tatel (with Judge Sri Srinivasan joining), affirmed the district court’s dismissal of the complaint, as well as its denial of the anti-SLAPP motion. Senior Circuit Judge Laurence Silberman dissented and in the process took issue, among other things, with the New York Times v. Sullivan precedent.

Given Judge Silberman's bold dissent, I invited Bruce E.H. Johnson, a noted First Amendment lawyer and partner at Davis Wright Tremaine (Seattle office), to respond. An invitation was also emailed to Judge Silberman to reply if he so elected. The Johnson reply, as he titled it, is set out below.

It’s Sedition Act Groundhog Day Again:

Reflections on Judge Silberman’s Wingnut Rant

by Bruce E. H. Johnson

It is a peculiar curse of American jurisprudence that the constitutionality of the 1798 Sedition Act continues to be a lively topic of judicial dispute. Enacted by a Federalist-controlled Congress and White House to punish newspaper critics (of the President and Congress, but not the Vice President, who supported the opposition party) and immediately repudiated by the incoming Jefferson administration in 1801 when the law automatically expired, the Sedition Act ripped through the newly-partisan press in the early years of the Republic, prompting indictments and prosecutions of pro-Jefferson printers in several cities across the United States.

Judge Laurence Silberman

The 1790s have proved to be a recurrent touchstone for later generations because the Sedition Act controversies clearly offered valuable insights into the First Amendment views of the Founding generation. Did “no law” really mean “no law,” for example? For originalists, of course, these disputes are catnip.

Modern American libel law rests on this historical foundation. In 1964, writing for the Court in New York Times v. Sullivan, Justice Brennan decisively repudiated the old statute: “Although the Sedition Act was never tested in this Court the attack upon its validity has carried the day in the court of history. . . . These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” The Court reversed a libel judgment issued against a newspaper and several civil rights leaders by Alabama public officials who had commandeered the state’s tort laws to punish critics of the Jim Crow governmental structures that maintained and preserved white supremacy in the South.

Thereafter, other than the ravings of candidate Trump in 2016 — “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”— it appeared that, on this point, Sullivan was settled law, even for originalists.

Indeed, in a 2010 article in Iowa Law Review, Eugene Volokh, the UCLA law professor, reviewed originalist data and concluded that the available evidence confirmed that the Founding generation “took for granted that civil liability was subject to constitutional restraints, and I know of no source that took the contrary view.” The core premise of Sullivan was solid.

Official Clarence Thomas portrait
Justice Clarence Thomas (Steve Petteway, Collection of the Supreme Court of the United States)

Originalism revised: Enter Justice Thomas

But, in February 2019, Justice Thomas, the leading self-proclaimed originalist on the Supreme Court, triggered shock and surprise among First Amendment lawyers when he wrote a concurring opinion in McKee v. Cosby, an appeal involving dismissal of libel claims against disgraced comedian Bill Cosby, suggesting that New York Times v. Sullivan, with its expansive views of First Amendment protections and its heavy criticism of the 1798 Sedition Law, was wrongly decided, and had no basis in the Constitution as it was understood by the people who drafted and ratified it: “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” he said.

Enter the modern-day historians

Criminal Dissent by Wendell Bird

Even before Justice Thomas, Sedition Act disputes had drawn in legal historians, beginning with Leonard Levy in 1960 (whose initial pessimism about the Founders’ “legacy of suppression” gradually dissolved as he learned more about the breadth of resistance to the federal and state prosecutions of printers in the 1790s and early 1800s) and more recently Yale’s Wendell Bird. In his 2016 book, "Press and Speech under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent," he showed that members of the Supreme Court during the Founding Era in fact took an expansive view of First Amendment protections, and were divided over the constitutionality of Sedition Act prosecutions. Then in his 2020 book "Criminal Dissent: Prosecutions under the Alien and Sedition Acts of 1798," he concluded that historical evidence does “not support the view . . . that the founding generation uniformly believed the First Amendment’s protections of press and speech were narrow.” In other words, even applying originalist analysis, Justice Thomas was wrong.

Another scholar responding to Justice Thomas’s attacks, Matthew Schafer, a media lawyer who teaches at Fordham Law School, has also researched and published extensively on these originalist issues of First Amendment interpretation. His conclusion: “[I]t turns out that the historical record when it comes to the common law of libel is not nearly as unequivocal as Thomas would have us believe — in almost every way. Indeed, the historical record contains substantial evidence supporting the rule adopted in Sullivan.” His research, Schafer concluded, in fact, shows that “opposition to the Sedition Act, within a decade of the ratification of the First Amendment, is some of the best evidence of what the Founders meant when they spoke of freedom of the press and its relationship to the criticism of public officials . . . As the Supreme Court correctly found in Sullivan, the opposition to the Sedition Act ‘first crystallized a national awareness of the central meaning of the First Amendment.'”

An unusual feature of Sedition Act legal battles was the ugly intrusion of partisan loyalties into the federal judiciary. Indeed, the sharp and sudden rise of the American two-party system, unanticipated by the Constitution’s draftsmen, transformed some federal judges (appointed by Federalists) into fits of partisan rage. The poster child was Justice Samuel Chase, who presided over some of the most controversial cases of the Adams administration, including the sedition trial of James Callender, the Richmond scandal-monger. In another case, dismayed that Jeffersonians in Maryland had established universal male suffrage, Chase told a group of grand jurors that “the country . . . [was] headed down the road to mobocracy, the worst of all popular governments” and that, if left in power, Jefferson’s party would eliminate “all security for property, and personal liberty.” The “modern doctrine . . . that all men in a state of society are entitled to equal liberty and equal rights,” Chase warned the jurors, will bring “mighty mischief upon us.” He was later impeached and, in a Senate trial presided over by Aaron Burr, acquitted (on a party-line vote).

Another judge of the Federalist era, Judge John Pickering of New Hampshire, was also the target of impeachment proceedings during the Jefferson Administration, with the House of Representatives charging that his behavior on the bench was often marked with “ravings, cursings, and crazed incoherences” brought on by alcoholism and growing mental instability.

Echoing Thomas & then some: Judge Silberman's dissent

This brings us finally to Circuit Judge Laurence Silberman, an 85-year-old Reagan appointee, and his wild dissenting opinion issued on March 19, 2021, in Tah v. Global Witness Publishing, Inc., which involved the appeal of a dismissal of an unsuccessful libel case involving allegations that two officials from the African nation of Liberia had accepted bribes in connection with the sale of an oil license to ExxonMobil.

Mostly, it is a fact-free wingnut rant masquerading as a judicial opinion. For example, although of no relevance to the legal issues in the appeal, Judge Silberman asserted that 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.” Also leaning in that direction, he said, are The Associated Press “and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe).” Plus, Judge Silberman added, “Nearly all television — network and cable — is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.” He also attacked Silicon Valley, which he said “similarly filters news delivery in ways favorable to the Democratic Party.”

Of course, in the 1790s, partisan newspapers (at least of the pro-Jefferson sort) enraged many Federalist judges who were charged with enforcement of the Sedition Act, so Judge Silberman’s partisan rage has deep historical roots. Digging through the dissenting opinion’s diatribes, however, is this legal gem:

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 (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.

In parroting Justice Thomas, Silberman fails to consider or address any of the current scholarship addressing the Sedition Act controversy, which confirms Justice Brennan’s views.

For First Amendment lawyers and scholars, the Silberman opinion threatens more attacks on a fundamental principle embraced by the courts since 1964 (and even earlier, as legal scholarship has confirmed). And, this leads to the obvious fear: With the Trumpification of the federal judiciary, will we see more such attacks in the future?

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Sen. Sheldon Whitehouse has been talking about anonymous political donations and the Supreme Court for a long time. Now, Whitehouse is using his new position as the chair of a key Senate subcommittee to bring more attention to the issue. The senator on Wednesday held the first in a series of hearings to investigate whether large political donations are exerting undue influence on Supreme Court nominations and decisions, provocatively titled “What’s Wrong with the Supreme Court: The Big-Money Assault on Our Judiciary.”

In his opening remarks, Whitehouse, D-R.I., contended that a “multi-hundred million dollar covert operation” influences conservative Supreme Court justices at three stages. First, a “gatekeeping organization” Whitehouse didn’t name (which witnesses later identified as the Federalist Society) grooms potential nominees for vacancies on the bench. Second, advocacy groups lobby for votes to confirm a chosen nominee in the Senate. And third, law firms and interest groups — allegedly with the same anonymous backers as the gatekeeper and advocacy groups — file amicus briefs urging the court to decide cases for the benefit of corporate interests.

The problem is not one of partisanship, Whitehouse said, noting that “in recent years Democratic dark money has caught up” to similar backing of Republican efforts. Rather, the issue is transparency. “Dozens of anonymously funded legal organizations have sprung up,” Whitehouse claimed, and the lack of any requirements for donor disclosure means the public – and the justices – cannot know when the same sources that supported a justice’s confirmation might be backing the legal team behind a party, or amicus, in a given case.

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This week we highlight cert petitions that ask the Supreme Court to consider . . . when the First Amendment protects a video game’s digital image of someone else’s likeness without that person’s consent and when the effective date for a veteran’s award for disability benefits begins.

Lenwood Hamilton is a former professional football player and wrestler. His likeness also appears as a fictional character in the video game “Gears of War.” Hamilton sued the game company and other defendants for violating his right of publicity. In response, the defendants claimed the protection of the First Amendment.

The U.S. Court of Appeals for the 3rd Circuit resolved the dispute using the “transformative use” test. Recognizing that Hamilton and the character have the same skin colors, facial features, hairstyles, builds and voices, the 3rd Circuit nevertheless noted differences in personality and profession (Hamilton has never served in the military or fought aliens) that rendered Hamilton’s likeness “so transformed that it has become primarily the defendant’s own expression.” Among the arguments in his petition, Hamilton maintains that the 3rd Circuit’s expansive test could allow “shoot-em-up” games involving the Dalai Lama or CGI pornographic films of famous actresses. The case is Hamilton v. Speight.

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Powell, represented by three lawyers, argued that claims she made about Denver-based Dominion were protected by the right to free speech under the First Amendment . . . .

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From The Volokh Conspiracy:

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This news item from the Associated Press:

A four-story, 50-ton marble tablet engraved with the text of the First Amendment, previously displayed on the facade of the now-shuttered Newseum in Washington, will find a new home in Philadelphia across from Independence Hall.

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No one could have anticipated that SENSATION: Young British Artists from the Saatchi Collection would become the biggest art story in the history of art history. It has taken him two decades to fully absorb and clearly reflect on what happened at the Brooklyn Museum in 1999–2000. The intense controversy swept the exhibition, the museum, and Chris Ofili’s The Holy Virgin Mary painting to international attention for six months. While 175,000 people saw the exhibition and millions read and heard about it daily, they never knew of the threats and challenges that kept the museum staff awake at night. Mayor Rudy Giuliani, who never saw the painting, focused his rage at The Holy Virgin Mary; rescinded the museum’s municipal funding to force it to close the exhibition; and attempted to evict it from its hundred-year-old landmark. The city’s most conservative media and ultra-religious groups inflamed the conflict.

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The University Press of Kansas wrote to its authors this week to say that its trustees “have initiated an independent review to propose direction for the press’s future amid significant financial challenges.” Richard Clement, former dean of the College of University Libraries and Learning Sciences at the University of New Mexico, was hired as an external consultant to complete that review by March 1. “The trustees will then decide how or if the press will continue to operate,” the note said.

The university did not immediately respond to a request for comment. Last week, it said it couldn’t rule out using a new Kansas Board of Regents policy making it easier to fire tenured faculty members. State universities are currently facing a 5.5 percent budget cut. Joyce Harrison, the press’s editor in chief, said she and her staff weren’t making public statements at this time.

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