Opinion dissenting in part filed by Senior Circuit Judge SILBERMAN: United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 19-7132 CHRISTIANA TAH AND RANDOLPH MCCLAIN, APPELLANTS v. GLOBAL WITNESS PUBLISHING, INC. AND GLOBAL WITNESS, APPELLEES

 

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2020 Decided March 19, 2021
No. 19-7132
CHRISTIANA TAH AND RANDOLPH MCCLAIN, APPELLANTS
v.
GLOBAL WITNESS PUBLISHING, INC. AND GLOBAL WITNESS, APPELLEES
Opinion dissenting in part filed by Senior Circuit Judge SILBERMAN. (pages 19-41)

The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a “bland and homogenous” marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.

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.

As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party.

Of course, I do not take a position on the legality of big tech’s behavior. Some emphasize these companies are private and therefore not subject to the First Amendment. Yet—even if correct— it is not an adequate excuse for big tech’s bias. The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is—I say this advisedly—fundamentally un-American. As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions. One would hope that someone, in any institution, would emulate Margaret Chase Smith.

There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact.

It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.


REFERENCE:

MEDIA

Federal Judge: ‘One-Party Control Of The Press And Media Is A Threat To A Viable Democracy’
In a blistering dissent, Judge Laurence Silberman said The New York Times and Washington Post are 'Democratic Party broadsheets.'
By Mollie Hemingway
MARCH 22, 2021