Still Just Two Votes (No Evidence of More) for Overruling “Actual Malice” Test in Defamation Cases

From today’s dissent from the denial of certiorari in Dershowitz v. CNN, Inc., written by Justice Thomas, joined by Justice Gorsuch:

Alan Dershowitz sued respondent, a major news network, alleging that it defamed him. 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.” See Gertz v. Robert Welch, Inc. (1974). Predictably, Dershowitz did not prevail under that exacting standard, which this Court created in New York Times Co. v. Sullivan. Dershowitz now asks this Court to overrule Sullivan and related precedents.

The “actual malice” standard for public figures “bears ‘no relation to the text, history, or structure of the Constitution.'” Berisha v. Lawson (2021) (Thomas, J., dissenting from denial of certiorari); see also Gertz (White, J., dissenting); case below (Lagoa, J., concurring). Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby (Thomas, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice standard for public figures. See, e.g., Berisha (Gorsuch, J., dissenting from denial of certiorari); Tah v. Global Witness Publishing, Inc. (D.C. Cir. 2021) (Silberman, J., dissenting); Gertz (White, J., dissenting). I would have granted certiorari to do so in this case.

As the citations show, Justices Thomas and Gorsuch have been arguing in favor of revisiting Sullivan and its progeny in similar years—but there’s no evidence any Justices have joined them, despite those arguments. Then-Professor Kagan expressed skepticism  in 1993 about Sullivan, and, even more, about some of the cases extending it beyond public officials (Sullivan itself spoke only of lawsuits brought by public officials), but I’ve seen no evidence that she’s willing to reverse any of the precedents beyond that. And I haven’t seen any evidence that the other Justices, including those who often agree with Justices Thomas and Gorsuch on other matters, agree with them on reversing the First Amendment defamation cases.

Recall that it takes four votes for the Court to agree to hear a case, and five votes for it to decide it on the merits (including in a way that would overrule a precedent). At this point, Sullivan and its progeny look fairly secure.