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Over a century ago, the framers of the Michigan Constitution created an eight person Board of Regents to have general supervision of the University of Michigan.

We are emeritus members of the Board. We come from diverse personal and professional backgrounds. We havent always agreed on matters of finance and the like. We do all agree that being a Regent means having, in essence, a fiduciary responsibility for the University and its community. The Regents responsibilities include creating a community where justice, dignity, respect, anti-racism, diversity and inclusion, decency and civility are its fundamental core values. The University is deeply committed to those values. We, too, have all beenand remaincommitted to those values and that type of community.

Given the context in which we have worked for many years, we were appalled to hear Regent Ron Weisers remarks delivered in his capacity as Chair of the Michigan Republican Party. As has been widely reported, he described Governor Gretchen Whitmer, Attorney General Dana Nessel and Secretary of State Jocelyn Benson as three witches and referred to their being burned at the stake. Showing a perverse political evenhandedness, Mr. Weiser went on to speculate that assassination could be a way to remove Republican Congressmen Fred Upton and Peter Meijer from office because of their vote to impeach President Trump. This casual incitement to violence also runs counter to UMs institutional values.

To be clear, no matter how much we find Mr. Weisers remarks to be abhorrent, he has a First Amendment right to his views. That doesnt mean that if he believes that he is free to denigrate women with whom he disagrees by calling them witches and if he encourages assassination as a way to deal with honorable men of his own party with whom he disagrees he should retain the privilege of remaining a fiduciary for a great university. That is why we are joining many others in calling for his resignation.

The University of Michigan is committed to the education and advancement of women. Here in Michigan, the voters in 2016 elected three talented women to lead our state. Over two million people voted for each of them. Despite their numerous achievements, to hear a Regent casually denigrate them as witches perpetuates gross, sexist stereotypes that are repugnant and unacceptable. Making those remarks while occupying a position of public trust dignifies and, for some, validates sentiments that we know are just plain malignant. If we dont denounce them for what they are, who will? And if the University community doesnt denounce Mr. Weisers remarks and apparent attitudes, how will we look our young women students who justifiably aspire to greatness in the eye? We must actively repair the damage he has done to our women students by his malevolent sexism in trying to brand the top three executive leaders of our state as witches.

To be clear, Mr. Weisers remarks were not taken out of context. They are apparently what he believes, and issuing an apology to those I offended is a tired clich which is customarily thrown out when a person isnt apologetic at all. They are merely in hot water!

We take, at face value, that Mr. Weiser cares about the University of Michigan. He has been a generous donor to it. That makes this unfortunate situation sad. We ask Mr. Weiser to show his ongoing commitment to the Universitys role, mission and wellbeing by resigning from the Board. We understand that may be tough for him to do, but, given his recent remarks, we believe that it is also the only honorable course of action available to him.

Paul Brown Sr. Olivia P. Maynard

Julia Donovan Darlow Philip H. Power

Laurence B. Deitch S. Martin Taylor

Shauna Ryder Diggs Nellie Varner

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University of Michigan Regents Emeritus call for Weiser's resignation - Fox17

IOWA CITY University of Iowa administrators should have known better when they discriminated against religious student groups several years ago amid an uproar over a Christian organizations refusal to let a gay member become a leader of the group, a federal appeals court ruled Monday.

Nearly four years after the Business Leaders in Christ student group sued the UI for violating its free-speech, free-association and free-exercise rights by deregistering it for barring a gay member from a leadership post, a U.S. Court of Appeals found individual UI officials can be held personally accountable.

A District Court in 2018 had ruled they could not granting them qualified immunity because the law was not clearly established. But the 8th Circuit Court of Appeals disagreed at least regarding the free-speech and free-association claims from the student group, which goes by BLinC.

We note at the outset what is not at issue in this appeal. The university defendants have not appealed the District Courts holding that they violated BLinCs First Amendment rights to free speech, expressive association, and free exercise through their disparate application of the universitys Human Rights Policy, according to a majority opinion from the three judges. Instead, the focus of this appeal is limited to whether, for purposes of qualified immunity, the law was clearly established that the individual defendants conduct violated those rights.

The majority agreed the law was clear on BLinCs free-speech and free-association claims, but not its free-exercise assertions, making UI administrators liable for two of the three issues.

In a statement, the UI said it is currently reviewing the decision and its options.

Mondays decision doesnt necessarily mean individual UI administrators will have to pay the defendants any money.

This is not a big money case, said Daniel Blomberg, senior counsel for the Washington, D.C.-based Becket Fund for Religious Liberty, representing BLinC.

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What was at issue was making sure this doesnt happen again, he said. Thats what makes the ruling today so significant is that it sends a message. Not only that a constitutional violation occurred but that its clearly established that this kind of selective enforcement violates the First Amendment.

That, Blomberg said, is precedent-setting.

Thats going to be very important for religious student groups across the country, and at the University of Iowa, he said.

While the appellate court judges didnt agree the law was clear on BLinCs free-exercise assertions one judge, Jonathan A. Kobes, argued it was.

I write separately because I think the law is clearly established on its free exercise claim, too, Kobes wrote. The individual defendants choice to deny BLinC an exemption from the Human Rights Policy while allowing exemptions for other secular and religious groups (that they approve of) shows that they sought to advance their interests only against specific religious conduct.

He argued BLinC should have been entitled to the benefits afforded other student groups, including secular ones allowed to limit leadership posts to those who affirm their beliefs or who meet gender or racial qualifications,

The purpose of qualified immunity is to shield good-faith actors who make mistaken judgments about unresolved issues of law, and it protects all but the plainly incompetent or those who knowingly violate the law, which Kobes argued describes the UI administrators who had more than fair warning that their conduct was unconstitutional.

The law is clear: state organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious, he wrote. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

The decision comes amid a state legislative session rife with debate over free-speech issues across Iowas public universities including Republican bills and oversight hearings aimed at improving the campus climate for conservative students, faculty, and staff.

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Rep. Bobby Kaufmann, R-Wilton, is among legislators who have hammered the universities for disparate treatment of conservatives. This court ruling is more confirmation of his constituents concerns, he said Monday.

This just is further proof that on university campuses in Iowa, there seems to be two different sets of rules one for conservative students and one for everybody else, he said. This is unacceptable. It needs to stop. And it will stop.

Comments: (319) 339-3158; vanessa.miller@thegazette.com

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Court: University of Iowa officials can be held liable for First Amendment violations - The Gazette

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Oakland University students who took a media law class from Jane Briggs-Bunting learned quickly that homework was not optional.

As a journalist who earned a law degree, she would have them read hundreds of pages of First Amendment case law, then stand them up in class and drill them with questions, leaving no refuge for slackers.

"Despite the fact that that class had a reputation for being so difficult, her students became very loyal to her," said Garry Gilbert, a former pupil and editor of The Oakland Press, who now runs the university's journalism program. "They knew that she would work them hard, but they also knew that she cared about whether they were going to be successful."

Briggs-Bunting of Rochester died Tuesdayof complications from cancer.She was 70.

In a career that spanned more than 40 years, Briggs-Bunting was a vocal champion of open government and was an expert on media law who helped educate hundreds of journalism students. Those students remember her exacting teaching style, but also her kinder side, when she became their friends, attended their weddings and advised their careers.

"Janegave me and so many students a solid foundation in journalism, but more, a foundation for life," said Gail DeGeorge, a formerpupil who now editsthe Global Sisters Report, a website that focuses on Catholic women. "We were alwaysthe underdog at Oakland University, in the shadow of better-established and well-known journalism programs at the University of Michigan and Michigan State University, but that didn't deter Jane from pushing her students to reach high.

Briggs-Bunting grew up in Fairview Park, Ohio, a Cleveland suburb, and attended the nearby Magnificat High School. Her passion for journalism began there,said her husband, Robert Bunting.

"She attended ajournalism summer camp at the University of Detroit and she just loved it," he said. "She said'This is what I want to do' and it became her passion."

Briggs-Bunting later enrolled at U of D in the journalism program, where the Free Press's then-managing editor, Neal Shine, was an instructor.

Jane Briggs-Bunting hugs Neal Shine after Briggs-Bunting was inducted into the Michigan Journalism Hall of Fame, April 12, 2003. Briggs-Bunting use to be a staff member at the Detroit Free Press and Shine is a former publisher of the paper.(Photo: Mary Schroeder, Detroit Free Press)

"Jane was my father's student at U of D and he hired her at the Freep," said Shine's son, Daniel Shine. "I think he was drawn to her commitment to right and wrong, her passion to find the truth no matter the cost or consequences."

Briggs-Buntingbegan her career at the Detroit Free Press in the early 1970s as a reporter working on Action Line,a Page One feature that promised readers it would cut red tape ... stand up for your rights.

She was "a 1970s version of Hildy Johnson from 'His Girl Friday.'" An "aggressive reporter who didnt stop until she was sure of her answers," saidPeter Gavrilovich, an Action Line colleague who went on to become a longtime reporter, editor and columnist at the Free Press.

"Jane was special," he said. "Those of us who worked with her will always remember her zeal for the profession, her love of the Free Press."

They'll remember her kindness, too, Gavrilovich said. Shine once noted his love of model trains and lamentedthat he'd never had one as a kid. That yearat Christmas, Briggs-Bunting and her Action Line colleagues bought one, set it up in their office on the fifth floor of the Free Press building and invited Shine up for a surprise.

Shine was so tickled he immediately sat down on the floor to play with it "right through deadline, as I recall," Gavrilovich said.

Briggs-Bunting was promoted from the Action Line to the police beat, where she met her future husband, Robert Bunting. They met at the old Detroit Police Headquarters at 1300 Beaubien, where Bunting worked as a detective sergeant on the staff of Police Commissioner John Nichols.

She worked in an office the Free Press kept in the building. They talked regularly and soon learned they were both law students, sheat U of D and Bunting at what was then the Detroit College of Law.

Briggs-Bunting earned her law degreein 1974 andmarried Bunting that same year. She continued reporting for the Free Press covering stories like the Oakland County Child Killer and the disappearance of former Teamsters President Jimmy Hoffa.

In 1978, she left the paper to teach at Oakland University. She would stay there until 2003, when she left to take over the journalism program at Michigan State University.

In those academic roles, she molded the character of future journalists, pressing them to hold public officials to account.

She assigned students to cover the Oakland University Board of Trusteesmeetings and ordered them to remain there until they were forced to leave by a board that wanted to conduct a presidential search in private.

She served as adviserto the student newspaper, which waged campaigns against the university, includingtwo lawsuitspressing for more transparency in the search.

By the early 1990s, her dictums carried so much weight, students referred to them as "Jane Says,"a nod to a then-popular Janes Addiction song by the same name. Briggs-Bunting smiled at the phrase for years.

"She was such an important influence on so many in our formative years that critical period in college when you're figuring out how to get through life," saidMark Clausen, a former pupil who's now anattorney in Seattle.

When Briggs-Bunting was inductedto the Michigan Journalism Hall of Fame in 2003, staffers ofthe school paper, The Oakland Post, published an eight-page special section with stories by current and former students describing the impact she'd had on them. The front page headline was "Jane Rocks."

Jane Briggs-Bunting of Oakland University displays a present in 2003 from her staff at the student paper as she was inducted into the Michigan Journalism Hall of Fame.(Photo: Mary Schroeder, Detroit Free Press)

"I remember how her eyes would sparkle when she talked about the importance of the First Amendment and the role of the press in helping to safeguard democracy," said Ann Zaniewski, who was editor-in-chief that year. "She said many times that she would put her life on the line to defend the First Amendment."

Another former pupil, Meg O'Brien, said Briggs-Bunting was fearless.

Jane didn't shy away from fights that needed to be fought, said O'Brien, who went on to work at the Chicago Tribune as associate business editor and online business editor. She emphasized that journalism wasn't a popularity contest and trained us how to challenge institutions and take on powerful people when they weren't doing the right things. The profession needs passionate, fearless watchdogs like Jane now more than ever."

Bunting said he'd seen his wife'sinfluence firsthand when he would travel the country for his law practice. Briggs-Bunting would often accompany him and make arrangements to visit with her former students.

"We're traveling around the country, and we're running into, you know, editors, top reporters, everywherefrom the Miami Herald to Bloomberg News," Bunting said. "We were always having lunch or dinner with former students."

Students were naturally drawn to Briggs-Bunting, said Ritu Sehgal, politics editor at the Free Press.

"She was smart, funny, sassy," Sehgal said."For a generation of students, she epitomized what it meant to be a journalist someone who believed in protecting what the First Amendment stood for, even when it came to the student publications she oversaw. Many students remained lifelong friends and turned to her for advice even in their professional careers.

A lifelong lover of animals and nature, Briggs-Bunting also authored three childrens books about them, Whoop For Joy: A Christmas Wish, Laddie of the Light and "Llama on the Lam."

To escape from their busy careers, the couple lived on a 48-acre farm in northern Oakland County, where they raised horses and rescued other animals.

"We really had an idyllic life," Bunting said.

Oakland University journalism professor Jane Briggs-Bunting poses with Whoop for Joy, the inspiration for her first children's book, "Whoop for Joy: A Christmas Wish," on her Addison Township farm in this 1995 file photo. The gentle brown giant was a racehorse who won his first and only race at the Detroit race track on July 19, 1975.(Photo: EDWARD NOBLE, Associated Press)

From her university position, Briggs-Bunting also was able to combine her passion for media and law, explaining and defending media rights, the Freedom of Information Act and the Open Meetings Act. She also authored a handbook used by reporters titled, Legal Guidelines for Reportersin Michigan.

She was a tough and smart but also very caring person,"said Steve Byrne, who served on the board of MSUs student paper with her for six years. "With her management, legal and journalistic background, I thought she was literally the perfect board president for the State News. She really cared about journalism, and seeing young journalists grow and thrive. And she wasnt afraid to push people to help make that happen.

Through it all, she remained a journalist at heart.

"Jane was always the journalist-professor, not the professor of journalism,"Clausen said.

Throughout her career, Briggs-Bunting continued to press for governmental transparency. She was a founding member of the Michigan Coalition for Open Government, a nonprofit thateducates Michiganders about their rights to see their government work.

The group created an award for governmental transparency, naming it for Briggs-Bunting, who was its first recipient.

Even after turning to teaching, Briggs-Bunting continued to write, freelancing pieces for Life magazine and People. One of the biggest stories of her careeris one she never shared in print, Gilbert said.

Jane Briggs-Bunting(Photo: Provided by Jane Briggs-Bunting)

In August 1987, Northwest Flight 255 crashed on takeoff from Metro Airport, killing 156 people. The nation was mesmerized to learn that 4-year-old Cecelia Cichan somehow survived.

Media from around the world were competing furiously to land an interview with the girl, who became known as America's orphan. But Cecelia's extended family, who took custody of her after her parents died in the crash, insisted onprotecting her privacy, arguing she deserved a normal life.

Life magazinetasked Briggs-Bunting with getting the story to run on the six-month anniversary of the crash. She tracked down the girl in Alabama and flew there to join a photographer.

Gilbert recalled how Briggs-Bunting described the scene.

"They find Cecilia at the condos where she was living with her aunt and uncle," Gilbert said. "Jane goes up to the door and knocks. The babysitter answers the door and Cecilia is standing right behind the babysitter."

Briggs-Bunting asked to speak to the aunt or uncle. The babysitter said she expected them home soon and she invited the two journalists inside to wait.

"Janesaid 'No, we'll wait out here,'" Gilbert recalled.

When the uncle arrived a few minutes later, he politely declined an interview, stressing again the family's desire to protect the child'sprivacy.

"Jane basically said 'Thank you very much' and walked away," Gilbert said. "She felt that was the right thing to do. Some reporters probably would have tried to, you know, push or to find some other way to get a story out of that. But she felt very strongly that that little girl deserved her privacy."

Cecelia maintained that silence until 2013, when at age 30, she appeared in a documentary about plane crash survivors.

In addition to her husband, Jane is survived by her sister, Sally; nieces Catherine, Eileen and Sarah; nephews David and Giles,grandnieces and -nephews, a menagerie of adopted and rescued animals and by journalists nationwide who will continue to embody her fight to defend media rights. A memorial service will be scheduled at a later date after the pandemic abates.

Free Press editors Sally Tato Snell and Ritu Sehgal contributed to this report.

Contact John Wisely: 313-222-6825 or jwisely@freepress.com. On Twitter @jwisely

Read or Share this story: https://www.freep.com/story/news/local/michigan/2021/03/24/jane-briggs-bunting-who-championed-1st-amendment-dies-70/4735934001/

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Jane Briggs-Bunting, who championed the 1st Amendment, dies at 70 - Detroit Free Press

BALTIMORE U.S. Rep. Andy Harris, R-Md.-1st, is upset with government officials for cracking down.on church services over violations of COVID-19 orders.

Harris is a Republican representing the Eastern Shore and areas near Baltimore.

He is criticizing Baltimore officials over trying to shut down and restrict services at Greater Grace World Outreach Church in northwest Baltimore over alleged violations of COVID orders. State and local mask and social distancing orders apply to churches and other houses of worship.

Regardless of what this congregation did, the government has no right to shut them down. Anything along that line is a clear and gross violation of First Amendment freedom, Harris said in a statement.

The church held in-person services on Sunday. Baltimore city allows for churches to meet at 25% capacity with plans to go to 50% on March 26.

We just are thankful we can assemble tonight, said Thomas Schaller, senior pastor for Greater Grace World Outreach Church during services on Sunday.

We want to say to the city of Baltimore that we are on the same team. That we love Baltimore, Schaller said.Baltimore is our home. So we care. We are praying for our government authorities, he said.

The church has been warned and restricted over violations of the citys COVID orders related to masks and social distancing.

Schaller said he feels the church should welcome those without masks along with those who want to wear masks. In my heart, I say you are welcome, he said of the unmasked at a recent service. He said the church has canceled or changed numerous events to abide by COVID orders.

Many of us dont care about it anymore. We are hugging and kissing. We are embracing and living, he said referring to the pandemic.

Gov. Larry Hogan has lifted statewide COVID capacity restrictions on churches including on the Eastern Shore. But six-foot social distancing rules hamper a number of churches ability to fully reopen. The U.S. Centers for Disease Control has eased social distancing rules for K-12 schools to three feet for elementary schools and for middle and high schools with lower rates of the virus. Restaurants owners and churches would like to see six-foot social distancing rules revisited for them also.

Baltimore city has also kept more restrictive COVID rules than the state orders though some of those local restrictions are being eased some by Mayor Brandon Scott.

Stefanie Mavronis, deputy director of communications for Mayor Scott, said the city has been meeting with the church about its reopening plans and would continue to enforce city COVID orders including related to masks.

The mayors office and health department met with Greater Grace Church last week. Since then, the health department has received the churchs safety plan for Easter and anticipates a general reopening plan in the near future. The city will continue to enforce the mayors executive order, which is rooted in the public health data and in line with the statewide mask requirement. We remain encouraged by the vast majority of faith institutions that continue to find ways to worship safely during this pandemic, she said.

Still, Harris said government officials especially in Baltimore should not be restricting church and religious services because of COVID orders.

Its truly disturbing to hear government officials chose to completely shutdown a church in response to alleged COVID capacity or mask regulations. Irrespective of what may have been done, this is a gross and egregious violation of the First Amendment. When it says government shall make no law prohibiting the free exercise of religion, the Constitutional authors didnt say a public health emergency was an exception which the Supreme Court has made quite clear in recent rulings. said Harris. The right to practice our faith is essential, and shuttering a congregation for alleged violations of this caliber shows what those in charge really think about individuals practicing their faith. With drugs and violent crime rampant, the problem in Baltimore City is not having too many church goers.

There have been 7,999 deaths attributed to COVID in Maryland since the pandemic began. That includes 14 new deaths reported Monday, March 22 by the Maryland Department of Health.

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Clear and gross violation of First Amendment freedom: Andy Harris faults government over COVID battle with church - Herald-Mail Media

from the ooooooh-boy dept

Two years ago, Supreme Court Justice Clarence Thomas shocked a lot of people by arguing -- somewhat out of nowhere -- that the Supreme Court should revisit the NY Times v. Sullivan ruling. If you're unaware, that 1964 ruling is perhaps the most important and fundamental Supreme Court ruling regarding the 1st Amendment. It's the case that established a few key principles and tests that are incredibly important in stopping vexatious, censorial SLAPP suits -- often by those in power, against those who criticize.

Now, a DC Circuit appeals court judge -- and close friend of Thomas's -- is suggesting that the court toss that standard. And his reasons are... um... something quite incredible. Apparently, he's mad that the media and big tech are mean to Republicans, and he's worried that Fox News and Rupert Murdoch aren't doing enough to fight back against those evil libs, who are "abusing" the 1st Amendment to spew lies about Republicans. As you'll see, the case in question isn't even about the media, the internet, or Democrats/Republicans at all. It's about a permit in Liberia to drill for oil. Really. But there's some background to go through first.

The key part of the Sullivan case is that, if the plaintiff is considered a "public figure," then they need to show "actual malice" to prove defamation. The actual malice standard is widely misunderstood. As I've heard it said, "actual malice" requires no actual malice. It doesn't mean that the person making the statements really dislikes who they're talking about. It means that the person making the statements knew that the statements were false, or made the statements "with reckless disregard for the truth." Once again, "reckless disregard for the truth" has a specific meaning that is not what you might think. In various cases, the Supreme Court has made it clear that this means that the person either had a "high degree of awareness" that the statements are probably false or "entertained serious doubts as to the truth" of the statements. In other words, it's not just that they didn't do due diligence. It's that they did, found evidence suggesting the content was false, and then still published anyway.

This is, obviously, a high bar to get over. But that's on purpose. That's how defamation law fits under the 1st Amendment (some might argue that defamation law itself should violate the 1st Amendment as it is, blatantly, law regarding speech -- but by limiting it to the most egregious situations, the courts have carved out how the two can fit together). Five years ago, 1st Amendment lawyer Ken White noted that there was no real concerted effort to change this standard, and it seemed unlikely that many judges would consider it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

And that's why Clarence Thomas's attack on the Sullivan standard was so shocking two years ago. It came basically out of nowhere. Thomas tried to make it all about "originalism", suggesting that if the framers of the Constitution didn't set up different standards for public figures, neither should the Supreme Court. Indeed, what was motivating Thomas' anger at the Sullivan standard seemed to be... that it let too many people be mean to public figures. He even seemed to argue that defamation law should be flipped to be more protective of public figures, since apparently those public figures are delicate little flowers who can't be forced to face pointed criticism. From his statement:

Far from increasing a public figures burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man); 4 id., at *150 (defining libels as malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule (emphasis added)). Libel of a public official was deemed an offense most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.

In the two years since he wrote that, thankfully, there's been little other movement in the courts to attack the Sullivan standard. Indeed, as White had suggested, any move to do so seems to be viewed as blatantly conspiratorial. However, now an appeals court judge has done exactly what Thomas seemed to be signaling he wanted. And, perhaps not surprisingly, that judge happens to be not just a close friend of Clarence Thomas, but the judge who convinced Clarence Thomas to become a judge in the first place.

Judge Laurence Silberman has been on the DC Circuit since 1985, and has been on "senior status" since 2000. But apparently he's got a real bone to pick with the Sullivan standard. In an absolutely incredible back-and-forth majority opinion and dissent in a defamation case, it is made quite clear that Silberman hates the Sullivan actual malice standard, believes the media is super biased and mean to conservatives, and is no fan of the two other judges on the panel, Judge Sri Srinivasan (currently the Chief Judge on the DC Circuit) and Judge David Tatel.

Both the majority opinion, by Tatel with Srinivasan joining, and the dissent, snipe at the other side in quite pointed ways. But we'll get to that. First, the details of the case. Without going too deep into the weeds, it involves a deal in which Exxon sought to buy an oil drilling license from Liberia. There had been concerns about corruption regarding oil licensing deals in Liberia in the past -- including the very specific plot that Exxon was seeking to drill in. Liberia had put together a committee to help oversee these kinds of negotiations. After the deal -- the largest ever for Liberia -- was completed, the National Oil Company of Liberia awarded bonuses to the negotiators on the committee. Two of those negotiators, Christiana Tah and Randolph McClain, were Liberia's Minister of Justice and the CEO of the National Oil Company of Liberia. Each received a $35,000 bonus.

Global Witness, a non-profit that tries to highlight corruption and human rights violations related to "natural resource exploitation" put out a report alleging that these bonuses were bribes to get the deal to go through. Accusing someone of accepting a bribe is, at least on its face, a much more serious claim and could actually be defamatory (unlike many cases we see where people scream defamation over opinions). However, this case ran into a big problem: the lack of actual malice, which allowed the district court to dismiss the case relatively quickly (as an aside, Global Witness also sought to use DC's anti-SLAPP law, but unfortunately since the DC Circuit has said for years that DC's anti-SLAPP law cannot be used in federal court that failed at both the district and the appeals court level).

Here, the majority opinion explains (in quite readable fashion!) the actual malice standard, and why Tah and McClain failed to establish it. For those who want a nice summary of how actual malice works, the opinion is a good summation:

The actual malice standard is famously daunting.McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C.Cir. 1996). A plaintiff must prove by clear and convincingevidence that the speaker made the statement withknowledge that it was false or with reckless disregard ofwhether it was false or not. Jankovic III, 822 F.3d at 58990(second part quoting New York Times Co., 376 U.S. at 27980).[A]lthough the concept of reckless disregard cannot be fullyencompassed in one infallible definition, the Supreme Courthas made clear that the defendant must have made the falsepublication with a high degree of awareness of probablefalsity, or must have entertained serious doubts as to the truthof his publication. Harte-Hanks Communications, Inc. v.Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted)(internal quotation marks omitted); see also id. at 688 (usingthese formulations interchangeably). The speakers failure tomeet an objective standard of reasonableness is insufficient;rather the speaker must have actually harbored subjectivedoubt. Jankovic III, 822 F.3d at 589.

But soon after this, the barbs at Silberman begin. The ruling notes that Silberman seems to have his own objective in dissenting -- even highlighting that the plaintiffs in the case didn't even make the argument Silberman so desperately seems to want them to make.

The dissent thinks this is an easy case. In GlobalWitnesss story, the dissent asserts, Exxon was the briber,Dissenting Op. at 1, yet the report admits that Global Witnessha[d] no evidence that Exxon directed NOCAL to pay Liberianofficials, nor that Exxon knew such payments were occurring,Report at 31.

Critically, however, neither Tah nor McClain advancesthis theoryin their briefing to us, they never even mention thesentence on which the dissent relies. They make four specificarguments in support of their claim that Global Witnesspossessed actual malice, supra at 8, not one of which is thatGlobal Witness had no evidence that Exxon was the briber, andfor good reason. At most, the report implies that NOCAL, notExxon, was the briber, thus rendering any lack of evidence asto Exxons direction or knowledge of the payments totallyirrelevant.

The opinion then even calls out Silberman for trying to coax the lawyers to make the argument he wanted them to make instead of the argument they were actually making:

Indeed, when ourdissenting colleague surfaced his theory at oral argument, itwas so foreign to appellants counsel that our colleague had tospoon-feed him after he failed to get the initial hint. See OralArg. Tr. at 10 (Well, no, its worse. Isnt it stronger than that,counsel? We have no evidence.). As our dissenting colleaguehimself has made clear, we do not consider arguments notpresented to us. Diamond Walnut Growers, Inc. v. NLRB, 113F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put anotherway, appellate courts do not sit as self-directed boards of legalinquiry and research, but essentially as arbiters of legalquestions presented and argued by the parties before them.Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

Ooof. And, indeed, when you read the dissent, you can see why Tatel was so annoyed. Silberman pretty clearly has a point he wants to make and he's going to make it whether or not Tah and McClain raised the issue in the case or not. And that point is (1) the actual malice standard is bad, (2) mainstream media companies are bad because they support Democrats, (3) big tech is bad because it support Democrats, and (4) to some extent, Silberman thinks his colleagues on the bench are bad. Oh, but Fox News, Rupert Murdoch, and his buddy Clarence Thomas are all good. It's... quite incredible. I mean, check out this statement:

My disagreement with the district court is limited to theactual malice question (my disagreement with the Majority ismuch broader).

A key part of the disagreement is whether Exxon or NOCAL was considered the "briber" in this case, though the reason that's important seems fairly tortured, so I won't even get into it here. Suffice it to say, Silberman believes that the story Global Witness wrote is "inherently implausible" and therefore that should satisfy the standard for defamation. But in discussing it, Silberman again throws tremendous shade on his colleagues:

The Majoritys assertion that this argument was nevermade by the Appellants leads me to wonder whether wereceived the same briefs. In my copy, Appellants argue thatGlobal Witness subjectively knew that it had not been able todetermine whether the payments of $35,000 to Christiana Tahand Randolph McClain were corrupt bribery payments.Yet . . . Global Witness proceeded to present to readers thedefamatory message that in fact [] Tah and [] McClain hadtaken bribes. Appellant Br. 36 (emphasis in original). Thatsounds to me a whole lot like accusing Global Witness ofpublishing its story with no evidence to back it up. TheMajority, moreover, faults me for assessing the inherent(im)plausibility of Global Witnesss story, without a specificrequest from Tah and McClain to do so. But (as discussed)inherently implausible is a legal standard by which we assessAppellants argumentsnot an argument to be advanced.

And from there, Silberman is off to the races, he spends a few pages accusing the majority of making stuff up, before finally getting around to the point he really wants to make. He wants to take Justice Thomas up on the offer to get rid of the actual malice standard entirely:

After observing my colleagues efforts to stretch theactual malice rule like a rubber band, I am prompted to urge theoverruling of New York Times v. Sullivan. Justice Thomas hasalready persuasively demonstrated that New York Times was apolicy-driven decision masquerading as constitutional law. SeeMcKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurringin denial of certiorari). The holding has no relation to the text,history, or structure of the Constitution, and it baldlyconstitutionalized an area of law refined over centuries ofcommon law adjudication. See also Gertz v. Robert Welch,Inc., 418 U.S. 323, 38088 (1974) (White, J., dissenting). Aswith the rest of the opinion, the actual malice requirement wassimply cut from whole cloth. New York Times should beoverruled on these grounds alone.

He at least acknowledges that it would be "difficult" to get the Supreme Court to "overrule such a 'landmark' decision," noting correctly that it would "incur the wrath of press and media." And it would, because it would open up the media (and basically everyone else) to a bunch of censorial SLAPP suits. Silberman then reminisces about pushing the Supreme Court to overrule another "similarly illegitimate constitutional decision" -- one that has been quite important in allowing people whose civil rights were violated by police to seek redress. He goes on to whine that other judges, including then Supreme Court Justice Kennedy, got upset with him for urging such an overturning of precedent. Kennedy, responding to Silberman, suggested that "we must guard against disdain for the judicial system." Silberman seems to relish his contrarian position:

To the charge of disdain, I plead guilty. I readily admitthat I have little regard for holdings of the Court that dress uppolicymaking in constitutional garb. That is the real attack onthe Constitution, in whichit should go without sayingtheFramers chose to allocate political power to the politicalbranches. The notion that the Court should somehow act in apolicy role as a Council of Revision is illegitimate. See 1 TheRecords of the Federal Convention of 1787, at 138, 140 (MaxFarrand ed., 1911). It will be recalled that maintaining theBrezhnev doctrine strained the resources and legitimacy of theSoviet Union until it could no longer be sustained.

He then goes through the details of the Sullivan ruling, arguing that it was clear judicial activism, and insists that such a ruling would never have happened today. Then he complains that it has given the press way too much power:

There can be no doubt that theNew York Times case has increased the power of the media.Although the institutional press, it could be argued, needed thatprotection to cover the civil rights movement, that power is nowabused. In light of todays very different challenges, I doubtthe Court would invent the same rule.

As the case has subsequently been interpreted, it allowsthe press to cast false aspersions on public figures with nearimpunity.

And then it's all "those media orgs are so mean to my friends."

Although the bias against the Republican Partynotjust controversial individualsis rather shocking today, this isnot new; it is a long-term, secular trend going back at least tothe 70s. (I do not mean to defend or criticize the behavior ofany particular politician). Two of the three most influentialpapers (at least historically), The New York Times and TheWashington Post, are virtually Democratic Party broadsheets.And the news section of The Wall Street Journal leans in thesame direction. The orientation of these three papers isfollowed by The Associated Press and most large papers acrossthe country (such as the Los Angeles Times, Miami Herald, andBoston Globe). Nearly all televisionnetwork and cableisa Democratic Party trumpet. Even the government-supportedNational Public Radio follows along.

Uh... what?

Also, big tech is bad:

As has become apparent, Silicon Valley also has anenormous influence over the distribution of news. And itsimilarly filters news delivery in ways favorable to theDemocratic Party. See Kaitlyn Tiffany, Twitter Goofed It, TheAtlantic (2020) (Within a few hours, Facebook announced thatit would limit [a New York Post] storys spread on its platformwhile its third-party fact-checkers somehow investigated theinformation. Soon after, Twitter took an even more dramaticstance: Without immediate public explanation, it completelybanned users from posting the link to the story.).

What does this have to do with a case regarding oil drilling in Liberia? You know as much as I do. But don't worry, Judge Silberman wants you to know that at least there's Rupert Murdoch to step in and balance the scales at least somewhat. Really. I'm not kidding.

To be sure, there are a few notable exceptions toDemocratic Party ideological control: Fox News, The NewYork Post, and The Wall Street Journals editorial page. Itshould be sobering for those concerned about news bias thatthese institutions are controlled by a single man and his son.Will a lone holdout remain in what is otherwise a frighteninglyorthodox media culture? After all, there are serious efforts tomuzzle Fox News. And although upstart (mainly online)conservative networks have emerged in recent years, theirvisibility has been decidedly curtailed by Social Media, eitherby direct bans or content-based censorship.

He also has another footnote attacking the 1st Amendment rights of the internet companies, which he insists -- without any actual evidence, because none exists -- are "biased" against his Republican friends.

Of course, I do not take a position on the legality of bigtechs behavior. Some emphasize these companies are private andtherefore not subject to the First Amendment. Yeteven if correctit is not an adequate excuse for big techs bias. The First Amendmentis more than just a legal provision: It embodies the most importantvalue of American Democracy. Repression of political speech bylarge institutions with market power therefore isI say thisadvisedlyfundamentally un-American. As one who lived throughthe McCarthy era, it is hard to fathom how honorable men andwomen can support such actions. One would hope that someone, inany institution, would emulate Margaret Chase Smith.

He then proceeds to complain about how the media and big tech are helping Democrats.

There can be little question that the overwhelminguniformity of news bias in the United States has an enormouspolitical impact. That was empirically and persuasivelydemonstrated in Tim Grosecloses insightful book, Left Turn:How Liberal Media Bias Distorts the American Mind (2011).Professor Groseclose showed that media bias is significantly tothe left. Id. at 192197; see also id. at 16977. And thisdistorted market has the effect, according to Groseclose, ofaiding Democratic Party candidates by 810% in the typicalelection. Id. at ix, 20133. And now, a decade after this bookspublication, the press and media do not even pretend to beneutral news services.

It should be borne in mind that the first step taken byany potential authoritarian or dictatorial regime is to gaincontrol of communications, particularly the delivery of news.It is fair to conclude, therefore, that one-party control of thepress and media is a threat to a viable democracy. It may evengive rise to countervailing extremism. The First Amendmentguarantees a free press to foster a vibrant trade in ideas. But abiased press can distort the marketplace. And when the mediahas proven its willingnessif not eagernessto so distort, it isa profound mistake to stand by unjustified legal rules that serveonly to enhance the press power.

And that's how it closes. Even if there are legitimate reasons to question the "actual malice" standard, to go on an unhinged Fox News-style rant about "anti-conservative bias" seems particularly ridiculous. It sure looks like Silberman has been spending a bit too much time believing propaganda, and is seeking to torpedo a free press in response.

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Filed Under: 1st amendment, actual malice, bias, big tech, clarence thomas, dc circuit, free speech, laurence silberman, liberia, media, news, oil drilling, section 230, supreme court

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Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much - Techdirt