It’s not (just) the baseless and fact-free rant against the New York Times because it isn't OANN, it's that apparently Judge Silberman didn't see the need to revise his dissent after the news this week about Russian propaganda.
Federal judge’s raging dissent calling TV a ’Democratic Party trumpet” stuns legal analysts https://t.co/ifwTDfEF0W— Raw Story (@RawStory) March 19, 2021
It isn't entirely obvious from what Silberman says there (he buries the subject entirely, actually; so maybe he did revise his remarks), but what he's talking about is the Hunter Biden story which Twitter did remove from its platform for reasons wholly satisfactory to Twitter. I'll pause here to note this isn't even a particularly well-argued dissent; the majority opinion dismisses its central contention with ease, although also with the facts and law peculiar to this case, so we'll stay out of those weeds. What really interested me from that section cited in the tweet, is footnote 11:
Just another conservative judge calling balls and strikes... https://t.co/8C9ZnElnzU— Steve Vladeck (@steve_vladeck) March 19, 2021
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.
"Repression of speech" is a curious term, especially since the Hunter Biden set of lies was never repressed. Should we condemn repression of foreign propaganda aimed at swaying the American electorate? "Speech" is so grand and anodyne. Judges know better than to apply broad principles of law to particular cases; that way lies serious injustice (not that the courts are above such base errors). What was repressed was not "speech," it was lies promulgated by a hostile foreign power with the aim of undermining a U.S. Presidential election. The comparison to McCarthyism is completely inappropriate; unless you want to say McCarthy's speech was "repressed" when he was censured by the Senate. Certainly nobody was much interested in what the Senator had to say after that. Oddly, Twitter's act of refusing a link to an NYPost story didn't "kill" the Hunter Biden propaganda at all.
There are more inane footnotes than that in this dissent, however. Footnote 10, for example:
10 Who can forget Candy Crowley’s debate moderation? See, e.g., Noah Rothman, Candy Crowley’ s Debate Moderation Exemplifies Why Americans Do Not Trust Their Media, Mediaite (Oct. 17, 2012); Dylan Byers, Crowley fact-checks Mitt, Politico (Oct. 17, 2012).
That footnote supports this otherwise unsupported (for a research paper this is a joke; for a judicial opinion, it's a scandal, to offer such broad statements that cannot be proven or even disproven) assertion:
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.
Sure it does. And there is footnote 6, already a classic:
When forces that are hostile to socialism try to turn the development of some socialist country towards capitalism, it becomes not only a problem of the country concerned, but a common problem and concern of all socialist countries.” Leonid Brezhnev, Remarks to the Fifth Congress of the Polish United Workers’ Party (Nov. 13, 1968). Thus, one a country has turned communist, it can never be allowed to go back.
Are we still fighting the Soviet Union in the Cold War? Wasn't that part of McCarthyism, too? And in case you think Judge Silberman is not serious about this, footnote 6 supports these statements:
I recognized, however, that convincing the Court to overrule these precedents would be an uphill battle. As I wrote, the Court has committed itself to a constitutional Brezhnev doctrine.
Judge Silberman is all that stands between us an the triumph of world communism! Brave, brave, Sen. Joe McSilberman!
I hate to say this; well, I don't actually, I think it's a serious problem we have to face (hem hem, Sen. Feinstein, Sen. Grassley, hem hem), but the aging of America is going to produce these inchoate-but-necessary-to-address problems. Silberman is 85. This kind of extra-judicial rant makes me wonder if his egg has finally cracked.
Because it only gets worse. This, I would say, is the heart of Silberman's argument:
One can understand, if not approve, the Supreme Court’s policy-driven decision.7 There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule.
It's not a bad issue to raise; but he raises it in the worst way possible. He uses almost no legal reasoning for his argument, and he relies not even on history or literature, but on rants informed by FixNews and Russian propaganda. He goes after the "evils" of social media so hard I'm surprised he didn't throw in how Trump won the election, just for good measure. His arguments really boil down to: "Damned kids! Get offa my lawn!"
The reasons for press bias are too complicated to address here. But they surely relate to bias at academic institutions.
Footnote, appropriately, 13. Two shibboleths for the price of one. Now all you punks get off the judge's lawn!