Another challenge to a landmark Supreme Court free press decision

The Supreme Court is currently considering a petition to reconsider one of its most important rulings limiting media outlets from lawsuits filed by public officials or figures. The precedent, New York Times v. Sullivan (1964), is not without its share of critics, but its defenders argue that it has stood the test of time as a bulwark protecting the free press.

In Dershowitz v. Cable News Network, Inc., Harvard Law School professor emeritus Alan Dershowitz argues that reporting from CNN about his appearance in Senate impeachment trial proceedings in 2020 against President Donald Trump caused him reputational harm. Dershowitz argues that the omission of language by CNN from a statement he made to Sen. Ted Cruz would have been considered as defamation in any court if the precedent of “actual malice” from the New York Times case didn’t exist.

Dershowitz filed suit in the United States District Court for the Southern District of Florida, alleging that CNN had defamed him under Florida law. The court ruled for CNN, as did the 11th Circuit Court of Appeals. The courts acknowledged that CNN made mistakes in its reporting but not at the level of violating the actual malice test from Sullivan.

Now, Dershowitz and his attorneys want the Supreme Court to reconsider the landmark case.

Sullivan and Its Legacy

In March 1964, a unanimous Supreme Court in New York Times v. Sullivan held that public officials in defamation cases against the media needed to prove actual malice or that a statement “was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

Montgomery, Alabama’s police commissioner, L. B. Sullivan, had sued the New York Times for libel after it ran a full-page advertisement from civil right activists that criticized Sullivan’s police department and its treatment of civil rights protestors. But many specific statements in the ad were later conceded to have been false. Two courts in Alabama had ruled in Sullivan’s favor.

In New York Times v. Sullivan, the Supreme Court said the First Amendment protected the newspaper from a lawsuit filed by a “public official” such as Sullivan unless actual malice could be proven. Sullivan’s claims didn’t meet this rigorous standard. In his opinion for the Court, Justice William Brennan said the case needed to be considered in the context “of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Two other decisions extended the actual malice standard to “public figures”—notable figures who were not public officials. In Curtis Publishing Company v. Betts (1967), the Court held that public figures had to meet the same defamation test as public officials did under the New York Times precedent. And in Gertz v. Welch (1974), a divided Court ruled that the actual malice standard did not apply to people outside of those categories. “Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation,” wrote Justice Lewis Powell.

Recent Cases

In recent years, those precedents have faced several challenges in court. Former Alaska Governor Sarah Palin sued the New York Times in 2017 after its editorial page published a map from Palin’s political action committee that used crosshairs to mark the district of Democratic Congresswoman Gabrielle Giffords and 19 other districts. It initially claimed a link between the map and Giffords’ shooting, then retracted the statement. Palin claimed the newspaper defamed her reputation.

Palin’s case went to court twice. After an initial ruling was overturned due to procedural errors, a jury ruled in favor of the New York Times in April 2025. It found that the newspaper’s action did not meet the high standards of the actual malice test.

On June 27, 2022, the Supreme Court denied an appeal in Coral Ridge Ministries Media, Inc. v. Southern Poverty Law Center. Coral Ridge Ministries sought damages from the Southern Poverty Law Center (or SPLC) after the Center placed Coral Ridge on a “hate group” map. The map made Coral Ridge Ministries ineligible to take part in AmazonSmile, a program from the online retailer that gives a small royalty to non-profits granted access to the Smile program.

A federal judge ruled that the SPLC’s labeling of Coral Ridge Ministries was protected First Amendment speech since Coral Ridge Ministries met the definition of a public figure. A federal appeals court upheld the decision. The court’s denial of certiorari was accompanied by a dissent from denial authored by Justice Clarence Thomas, who has been a vocal critic of the 1964 New York Times v. Sullivan decision.

Thomas specifically called on the Court to review the actual malice standard. “This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” The actual malice standard, Thomas said, was almost impossible to satisfy.

Justice Neil Gorsurch also raised questions about the actual malice standard in his dissent from denial of certiorari in Berisha v. Lawson (2021). Berisha claimed he was falsely linked to illicit arms dealing in a book published by Simon & Schuster. “Rules intended to ensure a robust debate over actions taken by high public officials carrying out the public’s business increasingly seem to leave even ordinary Americans without recourse for grievous defamation,” Gorsuch wrote. “At least as they are applied today, it’s far from obvious whether Sullivan’s rules do more to encourage people of goodwill to engage in democratic self-governance or discourage them from risking even the slightest step toward public life.”

Dershowitz’s Claims Explained

In his petition to the Supreme Court, Dershowitz and his attorneys focused on whether CNN’s errors and omissions constituted actual malice under the Sullivan definition; whether Sullivan’s actual malice test should be discarded altogether (or at least as to private citizens who are public figures); and whether the Court should modify the evidentiary standards for actual malice.

Dershowitz’s claims rested on his response to Cruz’s questions about what three categories pertained to constitutional standards for impeachment: (1) actions motivated by the public interest, (2) actions motivated by electoral interest, and (3) actions motivated by “personal pecuniary interest.” Dershowitz told Cruz in his testimony that actions related to the last category were “purely corrupt” as impeachable offenses.

However, Dershowitz argued that CNN’s subsequent reporting linked Dershowitz to including bribery and extortion as non-impeachable actions in his Senate exchange. Dershowitz also claimed the 11th Circuit Court of Appeals ruling on actual malice conflicted with similar decisions from the Second, Third, Fifth, and Ninth Circuits.

Additionally, Dershowitz questioned the distinction between public officials and private citizens categorized as public figures in defamation cases. “Even if some heightened protection for criticism of public officials might find policy support, Sullivan’s extension to private citizens who are public figures lacks any justification or historical anchor,” he told the Court.

In its response brief, CNN pointed to the fact that all courts “agreed that Dershowitz could not survive summary judgment because he had ‘no evidence’ that any CNN commentators entertained serious doubts that they had accurately represented Dershowitz’s statements in the Senate.” CNN also contested most of Dershowitz’s other claims and denied a circuit split. CNN pointed to the fact that it aired the full video of his comments and invited him on air on separate occasions to clarify his positions related to his Senate statements.

“Because Sullivan is a cornerstone of modern constitutional law, this Court could not remove the decision without causing lasting damage to a wide range of precedent,” it concluded.

So far, Dershowitz’s petition has been presented twice in private conference to the Justices. When the Court does act, it would not be surprising to see some comment from Justices Thomas or Gorsuch if the petition is denied.

Scott Bomboy is the editor in chief of the National Constitution Center.