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A Warning Sign for Journalists in Alan Dershowitz’s Failed Lawsuit Against CNN

The onetime Trump lawyer lost his defamation case against the cable news network, but the ruling nonetheless took aim at a long-standing legal precedent that protects press freedom.

Attorney Alan Dershowitz outside the U.S. Capitol
Sarah Silbiger/Getty Images
Attorney Alan Dershowitz outside the U.S. Capitol on January 29, 2020, when he was representing Trump in his first impeachment trial

A federal judge overseeing a defamation case between CNN and retired Harvard University law professor Alan Dershowitz ruled in favor of the network on Tuesday, but not before declaring his hostility to Supreme Court precedents on defamation law. His ruling underscores the growing hostility toward high thresholds for defamation lawsuits within the conservative legal movement—and the reasons why they should stay intact.

Judge Raag Singhal was appointed by President Trump to the federal bench in Florida in 2019. Two years later, he was assigned to oversee Dershowitz’s lawsuit against CNN. The case stemmed from Dershowitz’s defense of Trump during his first impeachment trial in the Senate for allegedly soliciting foreign interference in the 2020 election (by withholding aid to Ukraine unless President Volodomyr Zelenskiy investigated Joe Biden’s son, Hunter Biden).

Speaking to the senators, Dershowitz discussed at length the various states of mind and motives that a president might have when making a quid pro quo exchange in foreign policy that could have political benefits. Along the way, he appeared to argue that the Senate should not convict a president for such an exchange, even if the president did it for his own personal political benefit—so long as the president believed that the country would also benefit.

“A complex middle case is, ‘I want to be elected. I think I am a great president. I think I am the greatest president there ever was, and if I am not elected, the national interest will suffer greatly.’ That cannot be an impeachable offense,” he told senators.

More than a few observers of the trial immediately thought that Dershowitz was arguing that a president could get away with any impeachable offense if he claimed that it was in the public interest. While Dershowitz had prefaced his remarks by stating that a quid pro quo would only be unlawful if the quo itself was illegal, that context was left out of clips that CNN aired. Dershowitz himself appeared on CNN to defend his argument on multiple occasions in the days that followed. He later sued the network for defaming him.

It is not easy to win a defamation case in the United States. Generally speaking, a plaintiff must show that the defendant acted with “actual malice.” That standard can typically only be met if the defendant published false information about the plaintiff and either knew it was false when they published it or acted with “reckless disregard for the truth” while publishing it. The federal courts, starting with the 1964 Supreme Court case New York Times v. Sullivan, have typically recognized this as a high threshold to clear for First Amendment reasons.

Singhal is not a fan of Sullivan, to say the least. He devotes a few pages of his ruling to complaining about how the courts handled the dispute in the 1960s, which centered on an ad that ran in the Times seeking donations to defend Martin Luther King Jr. Montgomery Police Commissioner L.B. Sullivan, though he wasn’t mentioned in the ad, felt it had defamed him, so he sued the paper and a group of ministers named in the ad, winning $500,000 in damages in the Alabama courts. The U.S. Supreme Court overturned that judgment. “Sullivan was decided in 1964 when Justice Brennan created the actual malice standard, and is a great example of how bad facts can contribute to the making of unnecessary law, and why judges and justices should not be in the business of policy writing,” Singhal argued.

He went on to compare Sullivan to two since-overturned Supreme Court rulings: Dred Scott, which is widely regarded as the worst decision in the court’s history, and Roe v. Wade, a decision that Americans largely supported before the Supreme Court overturned it last summer. “Policy-based judicial opinions have had a twisted history in American jurisprudence,” he argued. “Some rulings are just ridiculously bad despite what common sense demands and what the author may have thought. Other decisions cause deep-rooted political and emotional turmoil by creating a ‘constitutional right’ that others then believe in, that isn’t anywhere in the U.S. Constitution.” He cited Dred Scott for the “ridiculously bad” one and Roe for the “political and emotional turmoil” one.

Singhal’s argument is partly based on holding a different method of reading the Constitution than the Sullivan court did. But it is also rooted in an outcome-minded frustration with Sullivan’s effect on modern political discourse. He noted at one point that Sullivan had been written “at a time when people got their news from Walter Cronkite or David Brinkley as opposed to Twitter.” Changing technology informed at least part of his analysis of the constitutional issues. “In this ‘information age’ of instant communication, immediate and intense analysis is sure to follow any such speech,” he wrote. “And it did. [CNN commentator Paul] Begala issued comments over social media from an airplane!”

At least one of the Supreme Court justices who has also called for Sullivan to be “revisited” took a similar approach. Justice Neil Gorsuch, writing in a dissent from the court’s refusal to hear a case in 2021, suggested that Sullivan’s reasoning was outdated in “a new era where the old economic model that supported reporters, fact-checking, and editorial oversight is disappearing.” He lamented that “it seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy.” (Emphasis his.) And he said the court should take another look at the issue to account for “the momentous changes in the nation’s media landscape since 1964.” Two years earlier, Justice Clarence Thomas wrote that he did not think the actual malice standard reflected the original public understanding of the First Amendment.

To Singhal’s credit, his denunciations of Sullivan did not actually affect the outcome of the case. He ruled that Dershowitz had not met the actual malice threshold for any of his defamation claims and had not proven, even after extensive discovery and depositions, that CNN producers and anchors had plotted to falsely misrepresent his impeachment testimony. “The evidence in the record does not support a conclusion that CNN ran a ‘story line’ that would establish actual malice,” he noted. “There was nothing ‘created’ to fulfill a preconceived narrative; Dershowitz’ statement was played in full and then subjected to independently developed commentary throughout the day and following morning.”

Last October, I wrote about Singhal’s approach to this case in the context of another defamation lawsuit against CNN, one brought by Trump earlier that month. The former president is suing the network over comparisons that some of its anchors and guests have made between Trump and German dictator Adolf Hitler. The actual legal case is fairly tenuous. Comparing public figures to Hitler is so common in American political discourse that we would need to build a second legal system just to hear the defamation cases for it. But the lawsuit is nonetheless notable because Trump filed it in a district where four of the five sitting judges are Trump appointees, and one of them is Judge Raag Singhal.

Singhal is far from alone among Floridians who are averse to Sullivan. Last month, I wrote about a bill in Florida that would rewrite that state’s defamation laws in an apparent effort to undermine press freedom. The bill is tailor-made to allow a legal challenge to Sullivan to reach the Supreme Court. While this may be the preferred outcome for Florida’s Republican lawmakers and Governor Ron DeSantis, it could be counterproductive for conservative media outlets in the state, many of whom raised similar concerns in recent weeks.

Look no further than last week’s major ruling against Fox News in the ongoing lawsuit by Dominion Voting Systems. Judge Eric Davis, a local judge in Delaware, rejected most of Fox’s defenses as a matter of law and ordered the case to trial solely on whether Fox acted with actual malice when making false claims about the 2020 election. While this is still a serious threshold to overcome, it will be substantially easier for Dominion to prevail on those narrower grounds. Davis’s careful 130-page ruling is akin to letting a football team start a drive on its opponents’ 20-yard line. Without Sullivan, it would effectively start on the goal line.

The Dominion ruling also showed that Sullivan and the actual malice standard can still hold reckless and malicious publishers accountable in the modern media age, despite the fears of Singhal and Gorsuch about its viability in the modern age. And Singhal’s own ruling shows that Sullivan hasn’t caused confusion in the lower courts or proved to be unworkable, two reasons that the Supreme Court usually cites when overturning precedents: He certainly had no trouble applying the actual malice standard to Dershowitz’s claims despite his clear disdain for it.

As long as right-wing litigants try to engineer challenges to Sullivan before sympathetic judges, however, that legal precedent—to say nothing of free speech and press freedom as we know them today—won’t truly be safe. And if Florida Republicans have their way, an even more direct challenge could be looming on the horizon.