In a striking dissenting opinion, the highly respected Court of Appeals judge, Laurence Silberman, urged the Supreme Court to reconsider and perhaps overrule the leading case of New York Times v. Sullivan. Pictured: Silberman (right) on March 31, 2005. (Photo by Mark Wilson/Getty Images)
In a striking dissenting opinion, the highly respected Court of Appeals judge, Laurence Silberman, urged the Supreme Court to reconsider and perhaps overrule the leading case of New York Times v. Sullivan.
Previously, a public figure could sue a newspaper, or other media, if they defamed him. In that case, The New York Times had run an ad defaming a southern sheriff during the era of civil rights conflicts. The Supreme Court ruled that a newspaper could not be held liable for defaming a public figure, unless the defamed person could prove that the newspaper acted with malice, which it defined as knowing falsehoods or reckless disregard for the truth.
Justice Arthur Goldberg, for whom I was clerking at the time, wrote a concurring opinion in which he distinguished between attacks on a public figure for performing their public duties, and personal attacks on a public figure relating to their private lives. But the Goldberg view was not accepted and the law remains that the media is free to say anything they want about any aspect of a public figure's life, even if it is totally false, so long as the falsehood was not accompanied by malice.
The result of this decision has been open season on public figures. The media, and their lawyers, are aware of how difficult it is to prove malice. So in order to sell their product, many are prepared to print obvious falsehoods, exaggerations and outright lies about political opponents and others.
I know, because I have been the victim of such mendacious behavior. CNN willfully doctored a recording of what I said on the Senate floor during the first impeachment trial of President Donald Trump. I explicitly said that a president could be impeached if he engaged in anything "unlawful" or "in some way illegal," but that he could not be impeached and removed if he did something lawful and legal in order to get reelected. People at the top of CNN made a deliberate decision to doctor the recording so as to eliminate my carefully chosen words "unlawful" and "illegal." Then they had their paid commentators go on prime-time TV and falsely proclaim that I had said that a president could not be removed even if he did things that were unlawful or illegal. In other words, they doctored the recording to make me say the exact opposite of what I said. They did this willfully and deliberately in order to make me look like an extremist or a fool.
I have now sued them, claiming that they defamed me with malice -- that is, they knew the doctoring was false and they did it with reckless disregard for the truth. They are trying to hide behind the shield of malice while wielding their malice as a sword against me.
Despite having been the target of deliberate media defamation, I am not in favor of a total overruling of New York Times v. Sullivan. In order for the First Amendment to thrive, the media must have the right to make honest mistakes: that is the right to be wrong. I would, however, narrow the exemption the media has from defamation suits. I would propose a sliding scale, whereby the more serious and hurtful the defamation, the greater the media's obligation to engage in due diligence to determine whether or not it is truthful or false. If they fail to exercise due diligence, they can be held liable for defamation.
Judge Silberman also pointed out that the media has lost its claim -- or pretense -- to objectivity and neutrality. Many newspapers and television channels have become house organs or propaganda platforms for the hard left or hard right. He pointed to The New York Times as a prime example of twisting the news to serve its partisan agendas. "All the news that's fit to print" has become "only the news that fits our biased narrative."
It would be ironic if the failings of the current New York Times became the justification for overruling or modifying the famous case that carries its name.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, 2019. His new podcast, "The Dershow," can be seen on Spotify, Apple and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.