The Eleventh Circuit affirmed the grant of summary judgment for CNN in Alan Dershowitz’s defamation action over how CNN reported on his defense of Donald Trump during the first impeachment. The record did not allow a reasonable jury to find, certainly not by clear-and-convincing evidence, that the reporters spoke with actual malice–rather, the “evidence points to the reporters’ sincere—if mistaken or even overwrought—belief in the truth of their accusations.”
It seems to me this should have been resolved on opinion. The statements at issue (reproduced in the opinion) characterize Dershowitz’s statements and suggest the negative consequences that would flow from his positions. These are not the falsifiable statements of fact that form the basis for defamation liability. The court therefore need not have reached actual malice.
Here is why that matters: Judge Lagoa wrote a concurring opinion to “explain my view of the harm Sullivan has caused in our First Amendment jurisprudence” and offer a lengthy non-historian’s historical analysis of defamation law and why Sullivan is inconsistent with the original understanding. Judge Wilson concurred to offer a stare decisis argument for retaining Sullivan, including that it was rightly decided as a matter of the purposes and evolution of the First Amendment, as well as whatever ambiguous history we have. He closes by urging lower-court judges to stop calling for SCOTUS to overrule the case, as it undermines stability in the law.
Dershowitz will seek cert [Update: I wrote that as a prediction; CNN reports that Dershowitz plans to ask SCOTUS to overrule Sullivan). Could this be the case the Court uses to address the issue? What will Roberts, Kavanaugh, and Barrett do with this? And does the fact that this should be an opinion case make it the wrong vehicle (a la Coral Ridge Ministries, Thomas’s latest missive on Sullivan, which neither opinion cites).
Posted by Howard Wasserman on September 3, 2025 at 02:35 PM