Two conservative Supreme Court 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 defamation precedent from the 1960s.
The dissent from the court’s conservative wing effectively called on the justices to revisit long-standing defamation precedent, echoing President Donald Trump’s 2016 call to loosen US defamation laws.
Dershowitz, who has represented such celebrities as Trump, OJ Simpson and Leona Helmsley, claimed CNN misleadingly edited a piece of her defense about the “quid pro quo” during Trump’s first impeachment trial to make it appear that she contradicted her full statements and used that clip to damage her reputation.
Justices Clarence Thomas and Neil Gorsuch – appointed by Presidents George H.W.
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The conservatives wrote, “Predictably, Dershowitz did not prevail under the precise standard that this Court created in New York Times Co. v. Sullivan. Dershowitz now asks this Court to overrule Sullivan and related precedents.”
Dershowitz also responded to the dissent in comments to Fox News Digital, calling it “impossible” to exceed the majority’s standard.
“All the judges agreed that CNN lied about me,” he said Monday.
“But the majority ruled, in dissent, that I must prove actual malice by clear and convincing evidence – an impossible standard that I believe will be rejected in years to come.”
The Sullivan case came to light when the commissioner of Montgomery, Alabama, sued the Times for defamation over a full-page advertisement criticizing how the city treated civil rights protesters.
An Alabama jury awarded damages to LB Sullivan, even though he was not named in the advertisement. The Supreme Court later reversed the decision, holding that a public official cannot succeed in a defamation case unless he can prove that 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 has no connection to the text, history, or structure of the Constitution,” Thomas and Gorsuch wrote Monday in the Dershowitz case.
“Instead, the Founding Generation believed that, if anything, public figures had stronger claims for damages if they were defamed.”
As a historical example, Thomas and Gorsuch pointed to the Sedition Act of 1798, which set a very low threshold for defamatory statements about public officials.
Then-Rep. Matthew Lyon, D-Vt., was prosecuted under the law for portraying President John Adams as a man with “ridiculous pomposity, foolish admiration and a boundless thirst for selfish greed” during American tensions with France.
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President Thomas Jefferson allowed that law to expire in 1801 and pardoned many of those caught in its trap.
More recently, Trump has called for loosening of US defamation laws, similar to the concerns expressed by Thomas and Gorsuch about the court’s defamation jurisprudence.
While running for president in 2016, Trump promised to “open up our defamation laws” if elected in order to advance the ideological group he frequently calls “fake news.”
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Trump said journalists who “knowingly write negative, horrible and false articles – we can sue them and win a lot of money.”
He has often highlighted the defenseless CNN more than others – famously sparring regularly with its then-White House correspondent, podcaster Jim Acosta.
During a 2017 incident, Acosta repeatedly interrupted Trump during a press conference, leading the President to demand that he “not be rude.” Trump informed Acosta that he would not take a question from him because “you are fake news.”
Justices Samuel Alito and Clarence Thomas wait to leave the podium after the inauguration ceremony at the U.S. Capitol in Washington, DC, on January 20, 2025. (Chip Somodevilla/AFP via Getty Images)
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“We’re going to open up defamation laws, and we’re going to have people sue you like you’ve never been sued before,” Trump said at the 2016 event.
The decision, along with Trump’s lawsuit against the network, founded by Ted Turner, over the use of the term “Big Lie” to describe its claims about the 2020 election, leaves open the possibility that the court could reconsider Sullivan, though such a change appears unlikely in the near future.
Fox News Digital contacted CNN for comment on the disagreement.
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