Freedom of Thought

Freedom of Thought Pick of the Week: Judge Silberman’s Dissent

Alida Kass

The Tah v. Global Witness majority opinion, and even the first two parts of Judge Silberman’s dissent, are unremarkable. The court concludes that DC’s anti-SLAPP statute should not apply in federal court and upholds the district court’s finding that the defamation complaint did not plausibly allege actual malice. Judge Silberman dissents in part, arguing that plaintiffs had met their burden alleging actual malice.

The more interesting part of the dissent is Part III.  First, Judge Silberman argues for a fresh look at the role of mainstream media, social media and big tech in public discourse. He begins by calling for New York Times v. Sullivan to be overruled. The enhanced protection that ruling provides has increased the media’s power, but it has not resulted in the sort of vibrant marketplace of ideas the First Amendment is meant to protect. That aspect of the dissent has received its share of press attention.

What has been less remarked on, but is at least equally interesting, given ongoing debate and discussion over §230, is the similar concern Judge Silberman voices over the role of big tech in distorting the marketplace of ideas. Big tech and social media, he suggests, have also taken to misusing their power in order to curtail the visibility of unorthodox viewpoints. Judge Silberman pointedly does “not take a position” on the legality of direct bans and content-based censorship. And he suggests the response that “these companies are private and therefore not subject to the First Amendment”—even if true—misses the damage he sees being done to public discourse. “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,” Judge Silberman claims, is “fundamentally un-American.”


See the links below for a range of reactions to this case, and return for updates this week:

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