Supreme Court Justices Clarence Thomas and Neil Gorsuch have publicly criticized their colleagues' decision to decline a defamation case against CNN, asserting that the court missed an opportunity to re-examine the established standard for libel against public figures. In a dissent concerning attorney Alan Dershowitz's lawsuit, the two conservative justices argued that the "actual malice" standard, established in the 1964 landmark case New York Times Co. v. Sullivan, is not rooted in the Constitution and should be reconsidered.
Dershowitz had sued CNN, claiming the network deceptively edited his remarks during President Donald Trump's first impeachment trial. He asserted that the edited clip misrepresented his statements and damaged his reputation. While a majority of the court opted not to hear the case, Thomas and Gorsuch contended that Dershowitz's suit presented a chance to revisit the precedent set by Sullivan.
"The actual-malice standard for public figures bears no relation to the text, history, or structure of the Constitution," Thomas and Gorsuch wrote. They pointed to historical laws, such as the Sedition Act of 1798, which they argued imposed a lower threshold for defamation claims concerning public officials. This historical context, they suggested, indicates that the founding generation believed public figures might have stronger claims when defamed.
Dershowitz, who has represented high-profile clients, reacted to the dissent, stating that all judges agreed CNN had misrepresented him. He described the "actual malice" standard as "impossible to overcome" and predicted it would eventually be overturned.
The New York Times Co. v. Sullivan ruling established that public officials cannot win a defamation case unless they prove the statement was made with "actual malice"—meaning the publisher knew it was false or acted with reckless disregard for the truth. This standard arose from a lawsuit filed by a Montgomery, Alabama, commissioner against The New York Times over an advertisement criticizing the city's treatment of civil rights protesters.
President Trump has previously expressed similar sentiments, calling for a loosening of U.S. libel laws during his 2016 presidential campaign. He suggested that journalists writing negative and false articles should be more susceptible to lawsuits and substantial financial damages. Trump has frequently been a vocal critic of CNN and has engaged in public disputes with its journalists.
The Supreme Court's refusal to hear Dershowitz's case and Trump's own ongoing lawsuit against CNN over the use of the term "Big Lie" leave open the possibility of future challenges to the Sullivan precedent, though a significant shift in the court's defamation jurisprudence appears unlikely in the immediate future.