The Supreme Court declined to hear Alan Dershowitz’s defamation appeal against CNN, marking the court’s latest refusal to reconsider the landmark 1964 press freedom ruling in New York Times v. Sullivan. 

The court has consistently declined to hear appeals seeking to weaken or overturn the precedent that makes plaintiffs who are public figures meet the demanding “actual malice” standard. Under that standard, plaintiffs must show the defendants’ knowledge of, or reckless disregard for, the falsity of statements they publish.

In line with the court’s typical practice, there was no explanation for Monday’s denial of Dershowitz’s petition. It takes four justices to grant review.

Justices Clarence Thomas and Neil Gorsuch dissented from the denial, echoing their previous calls for the court to revisit Sullivan and the actual malice standard.

Dershowitz’s suit against CNN stemmed from his representation of Donald Trump during his first impeachment trial in his first term. The president was accused in 2019 of abusing his power by urging Ukraine to announce an investigation of Joe Biden, against whom Trump would run in the 2020 election. (The Senate acquitted Trump in that trial as well as in his second impeachment trial, where he was accused of inciting the Jan. 6, 2021, insurrection in a bid to subvert the election he lost to Biden.)

Dershowitz said CNN defamed him in its coverage of his statement about the scope of impeachable offenses. During the Senate trial, Sen. Ted Cruz, R-Texas, asked the longtime law professor, “As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?” Dershowitz responded, in part, that “if a president does something which he believes will help him get elected — in the public interest — that cannot be the kind of quid pro quo that results in impeachment.”  

Among CNN’s coverage was a headline that said “Alan Dershowitz argues presidential quid pro quos aimed at reelection are not impeachable.” Anderson Cooper, an anchor for the cable news outlet, said Dershowitz was “essentially saying any politician … can do essentially whatever they want in order to get elected because it’s somehow in the public interest.”

Dershowitz complained about CNN’s coverage, and the network let him on air to explain his position. He still sued, alleging CNN intentionally omitted key parts of his statement. A Trump-appointed district court judge in Florida ruled against him, and a unanimous three-judge appellate panel (which included two Trump appointees) upheld the judge’s ruling.

“For a public figure like Dershowitz to prevail, defamation law has long required proof of a speaker’s actual malice: knowledge of or reckless disregard for the falsity of a statement,” the U.S. Court of Appeals for the 11th Circuit panel said. “But here,” it said, “the available evidence points to the reporters’ sincere — if mistaken or even overwrought — belief in the truth of their accusations.” The panel said Dershowitz presented “no evidence” to the contrary.

The circuit ruling sparked conflicting concurring opinions about the Sullivan precedent, which all three judges on the panel agreed mandated the outcome in CNN’s favor.

Judge Barbara Lagoa, a Trump appointee who was on the president’s Supreme Court short list in his first term, wrote separately to explain her view of “the harm Sullivan has caused in our First Amendment jurisprudence.” She said there can be “little dispute” that CNN defamed Dershowitz “under any common understanding of that term.” Echoing Thomas’ criticism, she called Sullivan and subsequent related rulings “policy-driven decisions dressed up as constitutional law.”

Lagoa said those rulings have “left us in an untenable place, where by virtue of having achieved some bit of notoriety in the public sphere, defamation victims are left with scant chance at recourse for clear harms.” But she concluded that “until the Supreme Court reconsiders Sullivan, we are bound by it, and I therefore must concur.”

Going the other way, Clinton-appointed Judge Charles Wilson warned against pushing for reconsidering Sullivan. He urged “respect for unanimous Supreme Court precedent” and “the press freedoms that played a critical role in securing the civil rights many in this country hold dear.”

In his Supreme Court petition, Dershowitz cited Lagoa’s concurrence and said Sullivan has “morphed into an impregnable fortress that protects media irresponsibility while denying public figures any remedy for egregious misrepresentations.”

Dershowitz raised several legal issues that he wanted the justices to consider, including advocating that the actual-malice standard be “discarded altogether” or at least abandoned for public figures who, like Dershowitz, are private citizens as opposed to government officials. He noted that Sullivan protected criticism of such officials, but the protection was extended in subsequent cases to public figures more broadly. “Whatever arguments might exist for special protections for criticism of government officials do not extend to private citizens who happen to achieve prominence,” he argued in the petition.

Opposing high court review, CNN cited Wilson’s concurrence and gave the justices multiple reasons to stay out of the case. Among the network’s points was that Dershowitz didn’t even sue over “provably false statements of fact” but rather “opinions and interpretations that the First Amendment protects separately from Sullivan.” CNN noted that the justices have “repeatedly rejected invitations to overrule or modify the First Amendment’s actual-malice standard.”

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