During final opinions week, the Supreme Court quietly upheld a free press precedent

Among the consequential decisions of the Supreme Court's current term, one was easy to overlook—the Court's refusal to hear a challenge to a landmark free press ruling, New York Times v. Sullivan (1964).

On June 29, 2026, the Court issued opinions about late-arriving mail-in ballots, the scope of President Trump’s executive powers, and cellphone data privacy. But that same day, the Court also declined to hear Dershowitz v. Cable News Network, Inc., a direct challenge to Sullivan.

Sullivan has long protected media outlets from defamation lawsuits from public officials or figures, and it is seen by their supporters as an important guardrail protecting the free press. These precedents, however, also have their share of critics, including Harvard Law School professor emeritus Alan Dershowitz and Supreme Court Justice Clarence Thomas.

In his petition to the Court, Dershowitz asked the justices to consider overturning Sullivan’s actual-malice test, which sets a high bar for public officials or figures to prove that media caused damage to their reputation. For a case to join the Court’s docket, at least four justices must vote to accept the case at their private conference. Only two justices, Thomas and Justice Neil Gorsuch (another public critic of Sullivan), indicated in a brief order that they would have taken Dershowitz’s case.

Sullivan and Other Precedents

In March 1964, a unanimous Supreme Court in New York Times v. Sullivan held that public officials could only succeed in defamation cases against the media if they could prove actual malice, meaning 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 the police department’s violent treatment of protestors. But many specific statements in the ad were later conceded to have been false.

The Supreme Court held that the First Amendment protected the newspaper from a lawsuit filed by a “public official” such as Sullivan unless actual malice could be proven. In the majority opinion, Justice William Brennan ruled that 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 later decisions clarified how far the actual malice standard actually reached . In Curtis Publishing Company v. Butts (1967), the Court held that public figures—notable people who were not public officials—had to meet the same defamation test as public officials under the New York Times precedent. But in Gertz v. Welch (1974), a divided Court declined to extend that test any further, holding that private individuals need only prove negligence to file for defamation, though they cannot collect damages without proving actual malice. “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.

The Appeal from Dershowitz

In his petition to the Court, Dershowitz argued that reporting from CNN about his appearance in Senate impeachment trial proceedings in 2020 against President Donald Trump caused him reputational harm. Dershowitz argued that CNN had edited part of a statement he made to Sen. Ted Cruz. Absent the actual-malice standard from the New York Times case, he contended, the omission would have been considered actionable as defamation in any court. A district court and the 11th Circuit Court of Appeals ruled against Dershowitz.

Dershowitz argued that CNN’s later reporting falsely claimed that he had told the Senate that bribery and exortion were not impeachable offenses. Dershowitz also claimed that the 11th Circuit Court of Appeal’s ruling on actual malice conflicted with those of four other federal appeals courts.

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.” It also declared that it had aired the full video of his comments and invited him on air on separate occasions to clarify his positions related to his Senate statements.

The Dissent from Justice Thomas

The Supreme Court denied Dershowitz’s petition with no comment except for a brief dissent from Justice Thomas, joined by Justice Gorsuch. “Because Dershowitz is a ‘public person,’ our precedents required him to prove not only the elements of common-law defamation, but also that the network acted with ‘actual malice,’” Thomas noted, pointing to the Gertz precedent.

“The ‘actual malice’ standard for public figures bears ‘no relation to the text, history, or structure of the Constitution,’” Thomas said, citing his dissent in Berisha v. Lawson (2021). “Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed.”

“I and others have thus called for reconsideration of the actual-malice standard for public figures. I would have granted certiorari to do so in this case.”

The “others” referenced in his dissent include Gorsuch, who also raised questions about the actual-malice standard in his dissent from denial of certiorari in Berisha. In that case, Berisha claimed that he had been 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 in 2021. “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.”

For now, the actual-malice standard remains the law of the land, and it continues to be referenced in legal actions. In Trump v. Carroll, the president’s lawyers have argued that Trump was not “speaking with actual malice” when he made comments critical of E. Jean Carroll. When a federal appeals court denied a rehearing en banc of Trump’s appeal, the judges were split on the actual-malice question. Two judges believed Trump “easily met the actual malice standard,” while two others said Trump’s defense never raised the question on appeal.

And a judge on July 2 ruled in favor of the Washington Post against Trump Media & Technology Group Corp., which sought $3.8 billion in damages from reporting by the Post in 2023. The judge determined that the “Plaintiff has failed to present evidence that would allow a jury to find by clear and convincing evidence that Defendant published the allegedly defamatory statements with actual malice.”

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