In the process of evaluating a Supreme Court standard for the media, an appeals court judge also made a startling statement about the state of media in this country. Judge Laurence Silberman is a senior judge on the DC Circuit Court of Appeals and may be best known for his opinion on the Heller decision concerning the Second Amendment.
He argued that the landmark libel ruling in New York Times v. Sullivan should be reconsidered. Back then, the justices raised the standard for suing a newspaper. A newspaper article had to be written with “actual malice” which is defined as a reckless disregard for the truth. You may even remember the 1981 movie “Absence of Malice” with Paul Newman and Sally Field that challenged this media standard.
Why did he argue that the standard needs to be reconsidered? His answer is simple. The media has taken a turn for the worse and has shown itself to be very irresponsible. He even went so far as to argue that the New York Times and the Washington Post “are virtual Democratic Party broadsheets” and that most of the working press usually follows their lead.
The current standard makes it nearly impossible for anyone bringing a defamation case and hoping to win, especially if they are deemed a “public figure.” If your name is Donald Trump, Ted Cruz, Sarah Palin, or a long list of other political figures, you don’t have a chance to win a suit and clear your name. Yes, it is true that CNN and the Washington Post did settle their suit with Covington, Kentucky student Nicholas Sandmann. But you have to wonder if the media organizations would have been more cautious without the current Supreme Court standard.