Two of the Supreme Court’s conservative justices criticized the majority’s decision not to take up attorney Alan Dershowitz’s defamation case against CNN, saying the high court missed an opportunity to revisit a controversial 1960s defamation precedent.
The dissent from the court’s conservative wing effectively called on the justices to revisit long-standing libel precedent, echoing President Donald Trump’s 2016 calls to loosen U.S. libel laws.
Dershowitz, who has represented famous figures like Trump, O.J. Simpson and Leona Helmsley, claimed CNN deceptively edited a snippet of his defense during Trump’s first impeachment trial about “quid pro quo[s]” to make it sound like he said the opposite of his fuller statements and used that clip to damage his reputation.
Justices Clarence Thomas and Neil Gorsuch — appointees of Presidents George H.W. Bush and Trump, respectively — criticized their colleagues for relying on the “actual malice” standard in evaluating whether CNN defamed Dershowitz, arguing the standard is not rooted in the Constitution and instead was created in the Supreme Court’s landmark 1964 decision in New York Times Co. v. Sullivan.
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“Predictably, Dershowitz did not prevail under that exacting standard, which this Court created in New York Times Co. v. Sullivan. Dershowitz now asks this Court to overrule Sullivan and related precedents,” the conservatives wrote.
Dershowitz also reacted to the dissent in remarks to Fox News Digital, calling the majority’s standard “impossible” to overcome.
“All the judges agreed that CNN lied about me,” he said Monday.
“But the majority ruled, over dissents, that I had to prove actual malice by clear and convincing evidence— an impossible standard that I believe will be overruled in years to come.”
The Sullivan case arose after a Montgomery, Alabama, commissioner sued the Times for libel over a full-page advertisement criticizing how the city treated civil rights protesters.
An Alabama jury awarded damages to L.B. Sullivan even though he was not mentioned by name in the ad. The Supreme Court later reversed the ruling, holding that a public official cannot prevail in a defamation case unless he proves the statement was made with “actual malice” — knowing it was false or acting with reckless disregard for the truth.
“The actual-malice standard for public figures bears no relation to the text, history, or structure of the Constitution,” Thomas and Gorsuch wrote Monday in Dershowitz’ case.
“Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed.”
As one historical example, Thomas and Gorsuch pointed to the Sedition Act of 1798, which imposed a far lower threshold for defamatory statements about public officials.
Then-Rep. Matthew Lyon, D-Vt., was prosecuted under the law for characterizing President John Adams as someone with “unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice” during American tensions with France.
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President Thomas Jefferson allowed that law to expire in 1801 and pardoned many caught in its net.
More recently, Trump has called for loosening U.S. libel laws, echoing concerns similar to those expressed by Thomas and Gorsuch about the court’s defamation jurisprudence.
While running for president in 2016, Trump pledged to “open up our libel laws” if elected to pursue the ideological conglomerate he often labels “fake news.”
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Journalists who “write purposefully negative and horrible and false articles — we can sue them and win lots of money,” Trump said.
He has often singled out defendant CNN more than most – famously warring regularly with its then-White House correspondent, podcaster Jim Acosta.
During one 2017 incident, Acosta repeatedly interrupted Trump during a news conference, leading the president to demand he not “be rude.”.” Trump informed Acosta that he would not be taking a question from him because “you are fake news.”
“We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before,” Trump said at the 2016 event, going on to further name-drop the Times and Washington Post.
The ruling, along with Trump’s own lawsuit against the Ted Turner-founded network over its use of the term “Big Lie” to describe his claims about the 2020 election, leaves open the possibility that the court could revisit Sullivan, though such a shift appears unlikely in the near term.
Fox News Digital reached out to CNN for comment on the dissent.