The fortress holds: Why the ‘actual malice’ standard still stands

For more than 50 years, the Supreme Court’s historic New York Times Co. v. Sullivan case has done quiet, essential work. On June 29, the Court let it keep doing that work, declining to hear Alan Dershowitz’s $300 million defamation suit against CNN, and leaving the lower court rulings undisturbed. The decision arrived without fanfare. Its significance should not.

Dershowitz had asked the justices to dismantle the precedent outright, describing it as “an impregnable fortress that protects media irresponsibility while denying public figures any remedy for egregious misrepresentations.” I would put it differently. The fortress is not a flaw in the design; it is the design.

We forget what Sullivan was built to withstand. In 1964, Alabama officials were using common-law libel to punish The New York Times for an advertisement supporting civil rights demonstrators, and the damages threatened to silence coverage of the segregated South. A unanimous Court answered that a public official — and, before long, any public figure — must prove a falsehood was published with knowledge of its falsity or reckless disregard for the truth (“actual malice”). Honest error, the inescapable byproduct of vigorous reporting, would not be treated as a lie. 

Dershowitz’s own case shows the standard functioning exactly as intended. A federal judge dismissed his claims in 2023, and the U.S. Court of Appeals for the Eleventh Circuit affirmed in 2025, because he offered no evidence that any CNN commentator harbored serious doubts about the accuracy of their account of his Donald Trump impeachment remarks. That is not a shield for irresponsibility. It is a doctrine drawing the line where it belongs: between a disagreement over interpretation and a knowing falsehood.

The challenge to Sullivan is no longer fringe, however. Justices Clarence Thomas and Neil Gorsuch dissented from the denial of review, as each has urged for years. Thomas contends the actual malice standard “bears no relation to the text, history, or structure of the Constitution,” recalling that the common law once let public figures sue for libel like anyone else.

Gorsuch, dissenting in Berisha v. Lawson in 2021, raised a subtler point: the media world that justified Sullivan encompassed a few professional outlets with reputational reasons to get it right, but has splintered into an endless stream of monetized falsehood, so the doctrine may now “protect the powerful, not the press.”

These arguments deserve a serious hearing, not a reflexive dismissal. But they remain the position of two justices, and the Court’s repeated refusal to revisit Sullivan, with Dershowitz merely the latest petitioner turned away, tells us a great deal about institutional prudence. As CNN’s counsel argued, the precedent is “a cornerstone of modern constitutional law,” and uprooting it would inflict “lasting damage to a wide range of precedent.” Six decades of doctrine governing public figures, limited-purpose public figures, and matters of public concern rest on that single foundation. To overturn it would not restore some lost equilibrium. It would invite a flood of strategic lawsuits designed to bleed critics into silence.

That is the real answer to the disinformation worry. If falsehood online is the ailment, gutting Sullivan is not the remedy; it is a cure that would chill far more truthful speech than false. Anti-SLAPP statutes in most states already let defendants dispatch meritless suits early. And the standard already reaches genuine bad actors; a publisher who relies on sources it knows to be unreliable, or does not care whether a claim is true, can be held to account. Dershowitz could not clear that bar because the proof was never there.

The durability of the actual malice standard is not inertia, nor is it media capture. It is a hard-won recognition that a democracy that punishes every misstatement about its most powerful citizens will soon discover that no one dares say anything about them at all. The fortress Dershowitz decried is the one protecting the rest of us. The Court was right to leave its walls intact.

Stuart N. Brotman is Digital Media Laureate at The Media Institute and the author of “Free Expression Under Fire: Defending Free Speech and Free Press Across the Political Spectrum.” He can be reached at snbrotman@gmail.com.