Supreme Court asked to reduce protections for media when they defame a celebrity

For 60 years, the U.S. Supreme Court precedent set in the case New York Times v. Sullivan has protected media outlets in many defamation fights.

That’s because the fight over the publication’s factually inaccurate statements generated the opinion that public officials had to prove “actual malice” to recover damages for defamatory falsehoods.

Now a case is being submitted to the high court that would change that.

Taking up the fight on behalf of famed lawyer, legal analyst and commentator Alan Dershowitz are Jay and Jordan Sekulow of the American Center for Law and Justice.

They explain, “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. 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.”

They warned, “When mainstream media outlets can falsely vilify, smear, and attack public figures with impunity, there is a fundamental problem in the law. This case represents far more than one man’s fight to clear his name – it’s a battle for truth, constitutional fidelity, and the fundamental right to seek justice when wronged.”

At issue are CNN falsehoods about Dershowitz.

The lawyer appeared before the U.S. Senate when it was considering one of the Democrats’ failed impeach-and-remove schemes against President Donald Trump.

He “delivered a carefully crafted constitutional analysis that made critical distinctions about what conduct could and could not constitute an impeachable offense,” they explain. “Professor Dershowitz was crystal clear: 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.”

But CNN characterized his comments as, “The Dershowitz Doctrine would make presidents immune from every criminal act.” Another CCN statement was that Dershowitz was “essentially saying it doesn’t matter what the quid pro quo is as long as you think you should be elected.”

The ACLJ explained, “The problem? As even the district court acknowledged, Professor Dershowitz ‘said nothing of the kind.'”

The problem is that public figures are left without remedy when defamed “if they cannot prove the publisher subjectively knew or strongly suspected the falsity.”

That’s the precedent under Sullivan, and that’s the precedent that needs to change, the ACLJ noted.

“This is not what the Framers intended. 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 ACLJ explained,

Sullivan, the legal team said, incorrectly “closed the courthouse doors to those seeking to vindicate their reputations.”

The ACLJ now is asking the justices to take up the fight.

“The questions presented in this case extend far beyond one plaintiff’s injury. The actual malice standard affects how millions of Americans receive information about public affairs and how accountability mechanisms function in modern media.”

The appeal points out that the circuit appeals courts are divided on the issue, and explains how Sullivan places a “burden” on plaintiffs beyond “clear and convincing evidence.”

Lastly, the Sullivan precedent violates the original meaning of the First and 14th Amendments.