A federal judge this week slammed a decades-old First Amendment ruling regarding libel law, claiming that ruling was invented by the Supreme Court at the time as a "policy-driven decision masquerading as constitutional law."
D.C. Circuit Senior Judge Laurence Silberman wrote the dissenting opinion in a case addressing a libel dispute between two Liberian government officials and the nonprofit human rights group Global Witness. The Liberian officials had argued that a report written by Global Witness implicating them in a bribery scheme should be treated as libel.
Silberman’s fellow judges disagreed, citing existing Supreme Court precedent, including the landmark New York Times v. Sullivan, which sets a high bar for libel prosecution in the U.S. Silberman argued that his colleagues "stretch[ed] the [Sullivan] rule like a rubber band."
The Sullivan ruling "has no relation to the text, history, or structure of the Constitution," Silberman argued, "and it baldly constitutionalized an area of law refined over centuries of common law adjudication."
Calling the country's two most prominent papers—the New York Times and the Washington Post—"virtually Democratic Party broadsheets," Silberman argued that the Sullivan case "allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon."