The ACLJ just filed a landmark case against CNN at the U.S. Supreme Court after the news agency defamed Harvard Law School professor emeritus and famed constitutional lawyer Alan Dershowitz during his Senate oral arguments against the impeachment of President Trump. We have filed a petition for writ of certiorari to the Supreme Court on behalf of Professor Dershowitz in his critical defamation case against CNN.
This case presents the Court with an opportunity to reconsider whether the actual malice standard established in New York Times v. Sullivan remains consistent with the First Amendment’s original meaning and whether it adequately protects individuals’ reputational interests while preserving robust public debate.
When mainstream media outlets can falsely vilify, smear, and attack public figures with impunity, there is a fundamental problem in the law. This case represents far more than one man’s fight to clear his name – it’s a battle for truth, constitutional fidelity, and the fundamental right to seek justice when wronged.
Take action with the ACLJ as we hold CNN accountable, add your name to the petition: Make CNN Pay for Its Lies at the Supreme Court.
What Happened: CNN’s Systematic Distortion
On January 29, 2020, Professor Dershowitz – a distinguished Harvard Law School professor emeritus and practicing attorney – appeared on the Senate floor to defend the Constitution and establish why the Constitution would not authorize a conviction of President Trump. Professor Dershowitz served as part of a distinguished legal team, alongside White House Counsel Pat Cipollone, now-Attorney General Pam Bondi, Jordan, and myself, among others.
In response to a question from Senator Ted Cruz (TX), Professor Dershowitz delivered a carefully crafted constitutional analysis that made critical distinctions about what conduct could and could not constitute an impeachable offense.
Professor Dershowitz was crystal clear: Actions motivated by “personal pecuniary interest” – such as a President demanding a hotel with his name on it or a million-dollar kickback – would be “purely corrupt” and present “an easy case” for impeachment. This wasn’t a throwaway line. It was the central point of his constitutional argument.
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CNN’s coverage, however, focused on portions of Professor Dershowitz’s statement while omitting his repeated qualifications regarding personal pecuniary interest, broadcasting to millions of viewers that Dershowitz had said the opposite of what he actually argued. As one CNN commentator wrote, “The Dershowitz Doctrine would make presidents immune from every criminal act.” Another claimed Dershowitz was “essentially saying it doesn’t matter what the quid pro quo is as long as you think you should be elected.”
The problem? As even the district court acknowledged, Professor Dershowitz “said nothing of the kind.”
The Constitutional Crisis: New York Times v. Sullivan Gone Wrong
Here’s where this case becomes critical for every American who values truth and accountability. According to Judge Lagoa in her concurring opinion, when the case was before the Eleventh Circuit Court of Appeals, CNN had “defamed” Professor Dershowitz “under any common understanding of that term.” Yet New York Times v. Sullivan and its impossibly high (and judicially created) actual malice “standard” barred any remedy.
In New York Times v. Sullivan, the Supreme Court created a new constitutional rule that makes it extremely difficult for public figures to win defamation cases. As the Supreme Court explained in Anderson v. Liberty Lobby, Inc., under the Sullivan standard, a public figure cannot recover for defamation unless they prove by “clear and convincing evidence” that the defendant acted with “actual malice” – meaning the defendant either knew the statement was false or acted with “reckless disregard” for whether it was true or false. The result? Even when media organizations publish demonstrably false statements that destroy someone’s reputation, public figures are left without remedy if they cannot prove the publisher subjectively knew or strongly suspected the falsity.
This is not what the Framers intended. The First Amendment protects not just speech and press, but also the right to “petition the Government for a redress of grievances.” For two centuries before Sullivan, Americans understood that their right to have access to the courts to seek justice for wrongs done to them – including reputational harm. Defamation law had always (before the Sullivan case) operated under common-law principles that protected vigorous debate while holding speakers accountable for deliberate falsehoods. Remember, the First Amendment guarantee of free speech protects us from the government. CNN is not the government.
But Sullivan effectively eliminated the right to petition for redress when it comes to public figures who have been defamed. By establishing a nearly insurmountable standard, Sullivan closed the courthouse doors to those seeking to vindicate their reputations. The First Amendment was designed to prevent government censorship – not to create a license for media organizations to systematically distort the truth with impunity.
Dershowitz was a law clerk when the Supreme Court decided the Sullivan case. He worked on Justice Goldberg’s concurring opinion. He now believes that the Justices went too far in protecting the media against lawsuits by private citizens who are deemed to be public figures.
As Judge Lagoa powerfully wrote in her concurrence, “Sullivan and its progeny are policy-driven decisions dressed up as constitutional law, and they find little—if any—support in our history.” She’s absolutely right. The decision lacks any foundation in the Constitution’s original meaning and has evolved into near-absolute immunity for media defendants, even when they deliberately misrepresent verifiable public statements.
What We Will Argue: The Circuit Split and Constitutional Questions
The questions presented in this case extend far beyond one plaintiff’s injury. The actual malice standard affects how millions of Americans receive information about public affairs and how accountability mechanisms function in modern media. Our certiorari petition to the Supreme Court presents three critical questions for the Court’s review:
First, we will ask the Court to resolve a clear circuit split. The Second, Third, Fifth, and Ninth Circuits have all held that deliberately omitting exculpatory information from someone’s statement can establish actual malice. The Eleventh Circuit said no – even systematic omission of qualifying language isn’t enough. This conflict demands a resolution – for everyone’s benefit.
Second, we will ask the Court to reconsider Sullivan’s placement of the burden on plaintiffs and its requirement of “clear and convincing evidence.” This heightened standard has no basis in common law and transforms Sullivan into an insurmountable barrier to justice.
Third, and most fundamentally, we will urge the Court to reconsider whether Sullivan itself should be discarded as inconsistent with the First and Fourteenth Amendments’ original meaning.
Why This Matters
This case presents the Supreme Court with an opportunity to address whether the actual malice standard, as currently applied, strikes the proper constitutional balance between two essential values: the freedom of the press to vigorously scrutinize public figures and the individual’s right to protect their reputation from knowing or reckless falsehoods. It’s about whether the First Amendment protects robust debate or shields profitable falsehoods. And fundamentally, it’s about whether Americans still have the right to petition their government – including the courts – for redress when they’ve been wronged.
The Founders understood that access to justice is a cornerstone of liberty. Yet Sullivan has effectively stripped public figures of this fundamental right when it comes to reputational harm, no matter how deliberate or egregious the falsehood.
Professor Dershowitz deserves better. So do the American people. They deserve a media that values truth (or which at least must answer for lies). They deserve courts that provide meaningful remedies for deliberate distortions and injuries. They deserve the right to seek justice when wronged. And they deserve constitutional interpretation faithful to the Founders’ vision – not judge-made policy masquerading as law.
The ACLJ is committed to taking this important battle to the Supreme Court. We recognize that the Court faces difficult questions about how to reconcile competing constitutional values and how to apply founding-era principles to contemporary circumstances. We believe the facts of this case – involving systematic omission of key qualifications from an easily verifiable statement – demonstrate that the actual malice standard has evolved beyond what the First Amendment requires or the common law tradition supports.
Take action with the ACLJ as we hold CNN accountable, add your name to the petition: Make CNN Pay for Its Lies at the Supreme Court.
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