Supreme Court Decides Not To Destroy The First Amendment Just Yet

from the phew dept

While we’ve been discussing a bunch of other Supreme Court end-of-term decisions this week, we should also call out two decisions the Supreme Court thankfully decided not to make. These non-decisions continue to help preserve First Amendment speech protections.

First, and most importantly, they rejected Alan Dershowitz’s attempt to appeal his laughably embarrassing SLAPP suit against CNN, which was filed in the hopes of getting it before this Supreme Court as part of the ongoing and extremely dangerous project by the rich and powerful to dismantle the “actual malice” standard found in NYT v. Sullivan. If you want to learn more about that dangerous project, listen to the podcast I recorded with reporter David Enrich, whose book, Murder the Truth, goes deep on this issue.

Dersh seemed to really hope that his case would be the one to overturn Sullivan, but it’s not to be. The Supreme Court denied cert. Of course, with that denial, Justice Clarence Thomas decides to pen another whiny blog about how much he hates the “actual malice” standard. He cites his own previous whining as well as his mentor’s, former Judge Laurence Silberman, who picked up the same cause soon after Thomas starting yelling about it.

The “actual malice” standard for public figures “bears ‘no relation to the text, history, or structure of the Constitution.’” Berisha v. Lawson, 594 U. S. ___, ___ (2021) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 2) (quoting Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251 (CADC 2021) (Silberman, J., dissenting)….

Instead, Thomas believes that public figures deserve extra special protection from critics, again citing his own previous whining:

Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby, 586 U. S. 1172, 1177 (2019) (THOMAS, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice standard for public figures.

Thankfully, seven other Justices have no interest in this. However, Thomas did get Gorsuch to sign on to this, which perhaps isn’t surprising, as he’s joined Thomas’s anti-actual malice crusade in the past. However, in Enrich’s book, he uncovers that Gorsuch’s hatred for “actual malice” was based on a study… that was wrong. Apparently Gorsuch hasn’t adjusted his position, even though the data he has relied on has been proven to be incorrect. Not great, but at least this misinterpretation hasn’t infected others on the court yet.

The actual malice standard is what makes First Amendment speech protections function in practice — it’s the mechanism that keeps powerful people from drowning critics in expensive litigation. I get that Clarence Thomas hates the fact that people criticize him and his rich and powerful friends, but that’s a reason for him to go retire somewhere, not to rewrite one of the core planks that makes the First Amendment work.

The other denial is a bit less eventful. The Court refused to hear an appeal from Donald Trump on his $5 million loss (by jury verdict) in one of the defamation suits filed by E. Jean Carroll against him:

In November, Trump came to the Supreme Court, asking the justices to hear his appeal. He contended that Carroll’s lawyers should not have been allowed to introduce testimony by other women who also alleged that Trump had assaulted them, as well as the 2005 “Access Hollywood” tape in which Trump bragged about grabbing women by their genitals.

In her brief responding to Trump’s petition, Carroll argued that even if the jury should not have been allowed to consider the evidence, it ultimately would not have made a difference because the rest of her case was so strong. She asked the justices to deny review.

On Monday, the justices did so, without a noted dissent from the denial.

Of course, this is just one of two separate cases that Trump lost to Carroll on, and he’s also appealing the other one — the $83 million verdict — and that’s still pending. However, for now Trump appears shocked that his buddies on the Supreme Court didn’t get him out of this particular pickle. Once again, nothing short of total, unconditional loyalty will ever satisfy Trump.

In the meantime, though, we have the Court passing on these two cases, both of which might have messed with the basic standards regarding defamation. Passing on both means that, for now, the Supreme Court hasn’t taken a sledgehammer to First Amendment protections.

Filed Under: 1st amendment, actual malice, alan dershowitz, clarence thomas, defamation, donald trump, e. jean carroll, free speech, neil gorsuch, nyt v. sullivan

Companies: cnn