Could the United States federal courts turn against the press that emerged in the Age of Trump? Feature the dissent uncorked Friday by one of America’s greatest judges, Laurence Silberman of the District of Columbia circuit. In an otherwise prosaic libel case, the judge seems to have taken a satisfying swig of the ink of liberty before issuing a blistering rebuke of a press that he reckons has become dangerous to our democracy.

Pass the flask, we say. We bow to no one in our fealty to the press. We get that the First Amendment was designed to protect an irresponsible press (the non-irresponsible press, after all, has never really needed protecting). Yet we’ve never seen anything like the nihilism that has entwined our biggest newsrooms with the woke Democratic Party. At some point our courts are bound to take notice.

The case that ignited Judge Silberman was levied by two former officials of Liberia. They claimed that a human rights organization called Global Witness defamed them by publishing a report, as the court put it, “falsely implying that they had accepted bribes in connection with the sale of an oil license.” The District Court allowed them to shelter under the Supreme Court precedent known as Times v. Sullivan.

That case, decided in 1964, involved an advertisement that was run in the Times by supporters of the Reverend Martin Luther King. The police commissioner of Birmingham, Alabama, L.B. Sullivan, won a $500,000 libel judgment. It was overturned by a U.S. Supreme Court that, at the time, was all too willing to proclaim rules that hadn’t been passed by any legislature and didn’t appear in the Constitution.

The justice who wrote up Sullivan, William Brennan, exhibited the kind of judicial law-writing the court later undertook in Roe v. Wade. In Sullivan, the rule the Court produced did not involve trimesters of pregnancy and the like. What Sullivan established was a system of unequal justice, where private citizens had an easier time suing for libel than public figures.

Public figures would have to prove any libel had been uttered with “actual malice.” That is, the libel would have to be not only untrue and defamatory but also made with “with knowledge of its falsity or with reckless disregard of whether it was true or false.” We newspaper roughnecks loved that license, since we could accuse public officials without knowing what was true. Henceforth, the press ruled the roost.

In Global Witness, Judge Silberman spent the first part of his dissent arguing that the court majority had tried to “stretch the actual malice rule like a rubber band.” He then announced outright that he was “prompted to urge the overruling of New York Times v. Sullivan.” He proceeded to do so with astonishing bluntness, even while acknowledging the uphill nature of the legal contests ahead.

In one footnote, Judge Silberman likened the precedent on libel to the Brezhnev Doctrine, named after the Soviet party boss who proclaimed that, as Judge Silberman paraphrased the point, “once a country has turned communist, it can never be allowed to go back.” Wrote Judge Silberman: “Apparently, maintaining a veneer of infallibility is more important than correcting fundamental missteps.”

The Sullivan precedent, Judge Silberman warned, has allowed the press “to cast false aspersions on public figures with near impunity.” That, he averred, would be one thing were it a two-sided phenomenon. The “increased power of the press,” he averred, “is so dangerous today because we are very close to one-party control of these institutions.” He singled out the Washington Post, the Times, and even National Public Radio.

“Our court was once concerned about the institutional consolidation of the press leading to a ‘bland and homogenous’ marketplace of ideas,” Judge Silberman warned. “It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.” He doesn’t map out how he thinks all this can be won, but he seeds his opinion with grist for the Supreme Court to focus on.

It is a moment to remember that our doctrines on libel, as on other things, can change. When America’s first great libel case was brought by New York’s colonial governor, Wm. Cosby, against the printer John Peter Zenger, the doctrine was the greater the truth of a defamation, the greater the libel. Zenger began the process of turning truth into a defense of libel. A time of reckoning could well be at hand where truth gets the premium part.

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Drawing by Elliott Banfield, courtesy of the artist.

Corrections: Justice Blackmun wrote the majority opinion in Roe v. Wade. The authorship was wrongly attributed in the bulldog. Cosby is the spelling of the last name of the New York governor in the Zenger case.