Politicized American media facing court threat to be truthful, or else

The American legacy media now is facing the prospect of a new court threat: Be truthful or else.

It’s coming as a filing with the U.S. Supreme Court challenges the legitimacy of an old court standard, established in New York Times v. Sullivan, that essentially allows media organizations to “falsely vilify, smear, and attack public figures with impunity.”

America’s legacy media outlets and corporations have, in recent years, become highly politicized. Donald Trump’s age? Huge problem. Joe Biden’s age? No big deal. Donald Trump’s government papers? A felony. Joe Biden’s government papers, in his garage no less? No big deal.

The new fight is coming on behalf of famed constitutional lawyer Alan Dershowitz, and now is pending before the U.S. Supreme Court.

The American Center for Law and Justice is working on the fight.

The origins of the case come from Dershowitz’ appearance before the U.S. Senate arguing against the impeachment of President Trump, an impeach-and-remove scheme that ultimately failed.

“We have filed a petition for writ of certiorari to the Supreme Court on behalf of Professor Dershowitz in his critical defamation case against CNN,” the ACLJ said.

“This case presents the court with an opportunity to reconsider whether the actual malice standard established in New York Times v. Sullivan remains consistent with the First Amendment’s original meaning and whether it adequately protects individuals’ reputational interests while preserving robust public debate.”

The problem with the law, the legal team said, is that there needs to be accountability for truth, constitutional fidelity, and a fundamental right to seek justice when wronged.

Dershowitz, a distinguished Harvard Law School professor emeritus and practicing attorney, testified to the Senate in 2020 when leftists were attacking Trump in one of several impeachment campaigns.

He explained why the Constitution would not authorize a conviction.

The legal team said, “In response to a question from Senator Ted Cruz (TX), Professor Dershowitz delivered a carefully crafted constitutional analysis that made critical distinctions about what conduct could and could not constitute an impeachable offense.”

That was that “actions motivated by ‘personal pecuniary interest’ – such as a president demanding a hotel with his name on it or a million-dollar kickback – would be ‘purely corrupt’ and present ‘an easy case’ for impeachment. This wasn’t a throwaway line. It was the central point of his constitutional argument.”

CNN, however, broadcast “to millions of viewers that Dershowitz had said the opposite of what he actually argued.”

One corporate statement was, “The Dershowitz Doctrine would make presidents immune from every criminal act.” Another charged Dershowitz was “essentially saying it doesn’t matter what the quid pro quo is as long as you think you should be elected.”

But the district court in the case acknowledged Dershowitz “said nothing of the kind.”

The ACLJ said, “Here’s where this case becomes critical for every American who values truth and accountability. According to Judge Lagoa in her concurring opinion, when the case was before the Eleventh Circuit Court of Appeals, CNN had ‘defamed’ Professor Dershowitz ‘under any common understanding of that term.’ Yet New York Times v. Sullivan and its impossibly high (and judicially created) actual malice ‘standard’ barred any remedy.”

The Sullivan opinion from the high court makes it “extremely” hard for any public figure to win such cases.

“As the Supreme Court explained in Anderson v. Liberty Lobby, Inc., under the Sullivan standard, a public figure cannot recover for defamation unless they prove by ‘clear and convincing evidence’ that the defendant acted with ‘actual malice’ – meaning the defendant either knew the statement was false or acted with ‘reckless disregard’ for whether it was true or false.”

Should the media get away with such behavior?

The ACLJ said the result of that standard is that “even when media organizations publish demonstrably false statements that destroy someone’s reputation, public figures are left without remedy if they cannot prove the publisher subjectively knew or strongly suspected the falsity.”

That is not what the writers of the First Amendment intended, the ACLJ said.

“The First Amendment protects not just speech and press, but also the right to ‘petition the Government for a redress of grievances.’ For two centuries before Sullivan, Americans understood that their right to have access to the courts to seek justice for wrongs done to them – including reputational harm. Defamation law had always (before the Sullivan case) operated under common-law principles that protected vigorous debate while holding speakers accountable for deliberate falsehoods. Remember, the First Amendment guarantee of free speech protects us from the government. CNN is not the government.”

The legal team said, “The First Amendment was designed to prevent government censorship – not to create a license for media organizations to systematically distort the truth with impunity.”

The ACLJ pointed out Dershowitz was a law clerk with the high court and worked on Justice Goldberg’s concurring opinion when Sullivan was released.

“He now believes that the justices went too far in protecting the media against lawsuits by private citizens who are deemed to be public figures,” the ACLJ said.

The brief points out that the circuits now are split on the dispute, and asks the high court to reconsider the burden it places on plaintiffs.

Further, it urges the court “to reconsider whether Sullivan itself should be discarded as inconsistent with the First and Fourteenth Amendments’ original meaning.”

The ACLJ said the fight is “about whether the First Amendment protects robust debate or shields profitable falsehoods. And fundamentally, it’s about whether Americans still have the right to petition their government – including the courts – for redress when they’ve been wronged.”