A couple of jurists, one from the D.C. Circuit Court of Appeals, the other on the Supreme Court, have made some interesting comments in legal opinions that highlight an important issue in the media today: The nearly complete consolidation by the political left.
Last month, Judge Laurence Silberman, of the D.C. Circuit Court of Appeals, called on the Supreme Court to reconsider New York Times v. Sullivan, long the cornerstone of libel law that requires a public figure to prove "actual malice," to be successful in a libel lawsuit. The aggrieved must prove that the libelous statements were intentionally false or made with a reckless disregard for the truth. Needless to say, this is a high burden. One that has been made even higher in recent years when the courts have required evidence of actual malice before it will even allow complainants discovery to determine just what the publication knew before it published the piece in question.
Another problem with U.S. libel law is the idea of a "limited purpose public figure." A limited purpose public figure, like other public figures, e.g. politician, celebrities, etc., must prove actual malice. The thing is, the media can make a credible argument that anyone it chooses a limited purpose public figure, simply by singling that person out and reporting on them (see Sandmann, Nicholas).
Silberman argued, in a portion of a scathing dissent that excused an international human rights organization from any blame after they accused two Liberian officials of bribery, that the actual malice standard may no longer be defensible in a media environment that is almost uniformly left-wing, and a wholly owned subsidiary of the Democratic Party.
As [New York Times v. Sullivan] has subsequently been interpreted, it 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. The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.
Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), 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. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.
Silberman's right, and the media isn't even trying to be evenhanded anymore.
In his acceptance speech receiving the Edward R. Murrow Lifetime Achievement Award, NBC News anchor Lester Holt told viewers that "fairness is overrated."
Before you run with or tweet that headline, let me explain a bit. The idea that we should always give two sides equal weight and merit does not reflect the world we find ourselves in. That the sun sets in the west is a fact. Any contrary view does not deserve our time or attention.
The problem is that far too many in the media aren't qualified to determine which side is "correct." Prior to the 2020 election, the New York Post, got its hands on a laptop that Democratic Presidential nominee Joe Biden's son, Hunter, had apparently abandoned at a Delaware computer repair shop. Following Holt's "fairness is overrated" doctrine, the rest of the media buried the evidence of influence peddling that the Post's reporting revealed, instead pooh-poohing it as Russian propaganda and misinformation. Twitter locked the Post's account for more than two weeks, demanding they remove the tweet linking to their reporting, before relenting. After the election was won by Biden, Twitter CEO Jack Dorsey admitted the lockout was a "mistake."
The collusion between Big Tech and the establishment media also got some attention from Justice Clarence Thomas earlier this week when he published a concurrence that a lawsuit involving whether then-President Donald Trump had a right to use Twitter's block functionality to stop people from tweeting at him or following him on that platform was moot since he's no longer the president. Lower courts had ruled that Trump could not do that, because as a government official, the block was the equivalent of excluding citizens from a public forum.
In his concurrence, Thomas highlighted the tension in ruling that Twitter is a public forum that elected officials cannot "block" citizens from seeing tweets, while at the same time Twitter is a private company that is not subject to the First Amendment and can prohibit people from using their platform.
Thomas said the petition highlighted the “principal legal difficulty that surrounds digital platforms— namely, that applying old doctrines to new digital platforms is rarely straightforward.”
“Respondents have a point, for example, that some aspects of Mr. Trump’s account resemble a constitutionally protected public forum,” Thomas wrote. “But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.”
This last point was the fact that had me convinced that the lower court rulings in this case were wrong.
If you block someone on Twitter, that largely prevents them from interacting directly with you by quote-tweeting you, replying to you, or using Twitter's embed feature to place that tweet in a blog post or online forum. It doesn't actually stop you from finding out what they are saying—simply copying-and-pasting a link to the tweet or typing in the URL of the person's account in an Incognito (or InPrivate or whatever your web browser's equivalent is called) window will allow you to see the account despite the block. If a politician's tweets are a public forum, that everyone should have access to for informational purposes, then everyone already has the necessary tools, but they might need a little education.
If the issue is being able to respond, again, there are methods other than Twitter to respond to a politician's tweet. You can call their office, you can send them a letter, you can send an email, etc.
However, what Thomas makes clear here is that we can't have it both ways. Twitter, Facebook, Google and other dominant tech sites can't at the same time be considered a public forum where everyone must have access and, at the same time, and a private platform that can ban users and is protected from lawsuits based upon what users post under Section 230 of the Communications Decency Act.