Retired Harvard Law professor Alan Dershowitz has asked the U.S. Supreme Court to take up his lawsuit against CNN over its reporting on his defense of President Donald Trump, in a case that could roll back barriers to defamation claims the court established in its landmark 1964 New York Times v. Sullivan ruling.
Dershowitz said in his court petition filed last week that Sullivan has become “an impregnable fortress that protects media irresponsibility while denying public figures any remedy for egregious misrepresentations.”
In an interview, Dershowitz said he thinks the Supreme Court’s high bar for defamation claims in Sullivan should apply only to government officials, and that such a change would not affect “good journalism.”
A CNN spokesperson declined to comment.
The Supreme Court in its Sullivan ruling and subsequent decisions said that in order to win a libel suit, a public figure must demonstrate the offending statement was made with “actual malice,” meaning with knowledge it was false or with reckless disregard as to whether it was false.
The Supreme Court frequently chooses not to take up cases, and Dershowitz’s petition comes less than a year after the justices declined to hear an appeal by casino mogul Steve Wynn, who also targeted the court’s Sullivan standard in challenging the dismissal of a defamation lawsuit Wynn brought against the Associated Press.
The court in recent years has turned away other opportunities to revisit its actual malice standard, including a 2021 denial that drew dissents from conservative Justices Clarence Thomas and Neil Gorsuch.
Dershowitz said he believes his petition has a better chance because it gives the court “a series of graded options.” For example, the justices could keep Sullivan intact but lower the evidentiary standard for proving actual malice.
Dershowitz’s defamation lawsuit against CNN stemmed from the network’s coverage of his remarks defending Trump in his first impeachment trial in 2020. Dershowitz offered an expansive defense of presidential power that provoked astonishment among Democrats.
CNN reported that Dershowitz said during Trump’s trial, “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 an impeachment.”
– the first is narco-terrorism, which is drug trafficking to support a foreign terrorist organization.
Dershowitz said this was only part of his remarks, and that CNN repeatedly aired that particular clip to make it seem as if he was “a constitutional scholar and intellectual who had lost his mind,” the lawsuit said.
A federal judge in Fort Lauderdale, Florida, ruled for CNN in April 2023. The 11th U.S. Circuit Court of Appeals also sided with CNN in August, finding that Dershowitz presented no evidence that CNN’s reporters and commentators operated with actual malice.
