A federal appellate judge challenged Supreme Court infallibility

American Thinker-

By Andrea Widburg

In the case of Tah v. Global Witness Publishing, Inc., which emerged from the United States Court of Appeals for the District of Columbia Circuit, nobody but the parties involved cared about the issues in the case. It became noteworthy, though, because Judge Laurence Silberman used the dissent, not just to disagree with the majority’s ruling, but also to warn against the danger of a national media that is completely allied with the party controlling all of Washington D.C. However, I find the case even more exciting because it attacks the notion of Supreme Court infallibility.

The majority in the Tah case did a good job of summarizing the case and you’ll see why nobody in America was paying attention:

In this defamation action, two former Liberian officials allege that Global Witness, an international human rights organization, published a report falsely implying that they had accepted bribes in connection with 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. For the reasons set forth in this opinion, we affirm. The First Amendment provides broad protections for speech about public figures, and the former officials have failed to allege that Global Witness exceeded the bounds of those protections.

The Supreme Court first enunciated those “broad protections for speech about public figures” in 1964, in New York Times Co. v. Sullivan.  In brief, it held that, if a public official or political candidate wants to succeed in a defamation claim, she or he cannot merely prove the elements of a defamation cause of action (i.e., publicly disseminated defamatory statements) but must also prove that whoever made the statement acted with actual malice. “Actual malice” means knowing the statement was false or recklessly disregarding its falsity. As a result of that decision, public officials stopped suing the media, so much so that they no longer sue even when obvious actual malice is present.

Judge Silberman wrote a dissent challenging not only how the majority applied New York Times Co. v. Sullivan to the case before it but also challenging the entirety of the Supreme Court decision. It’s this last aspect that makes Silberman’s dissent noteworthy.

Silberman points out that “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. *** As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth.”  

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