Alan Dershowitz is determined to take his defamation case against CNN to the U.S. Supreme Court, aiming to challenge the pivotal 1964 New York Times v. Sullivan decision. This case could potentially reshape defamation law significantly, a change that would likely receive a warm reception from Justice Clarence Thomas if the Supreme Court agrees to hear it and Dershowitz succeeds.

Joining Dershowitz in his quest is attorney Jay Sekulow, who, like Dershowitz, was part of the legal team defending President Donald Trump during his first impeachment trial. This trial, which scrutinized Trump’s handling of aid to Ukraine, concluded with his acquittal. Now, over five years later, Sekulow and the American Center for Law and Justice are stepping in to defend Dershowitz over statements made during that very trial.

The move towards the Supreme Court began in earnest last November when Dershowitz requested an extension from Justice Thomas to prepare his case, a request that was granted. On December 29, Dershowitz formally filed his petition for a writ of certiorari, following up on earlier comments made to Law & Crime in September.

The petition comes in the wake of a federal district court dismissing Dershowitz’s case, a decision that was upheld by the 11th Circuit Court of Appeals. In his petition, Dershowitz argues that the Supreme Court should reconsider the “actual malice” standard established in Times v. Sullivan, which applies to public officials and figures bringing defamation claims.

The petition poses critical questions, including whether the “actual malice” standard should be entirely abandoned or at least modified for private citizens who have become public figures. It also questions whether the evidentiary standards set by Sullivan should be adjusted.

Furthermore, Dershowitz seeks to address a division among circuit courts over whether systematically omitting qualifying language from a recorded statement can demonstrate actual malice under Sullivan. Different circuits, such as the Second, Third, Fifth, and Ninth, have ruled affirmatively on this issue, while the 11th Circuit has taken an opposing stance.

As forecast, Dershowitz repeatedly cited the concurrence of U.S. Circuit Judge Barbara Lagoa, a Trump appointee who agreed that precedent meant the $300 million suit had to be dismissed while also saying that CNN had “simply lied” about Dershowitz on air.

Dershowitz’s tossed suit claimed the network “falsely” portrayed him as “a constitutional scholar and intellectual who had lost his mind” by misleadingly editing his impeachment defense of Trump to make it seem as if he had said the president could have an illegal motive and still avoid impeachment.

During the trial, Sen. Ted Cruz, R-Texas, asked Dershowitz if it mattered whether there was a quid pro quo, after it was alleged that Trump abused his power by corruptly withholding military aid to Ukraine on the condition that its president announce an investigation into Joe Biden ahead of the 2020 election.

“The only thing that would make a quid pro quo unlawful is if the ‘quo’ were in some way illegal,” Dershowitz began to answer, naming as “three possible motives” for seeking the “quo” the public interest, political self-interest, and financial self-interest.

Left: Personal attorney to President Donald Trump, Jay Sekulow, speaks with reporters after Trump was acquitted in an impeachment trial on charges of abuse of power and obstruction of Congress on Capitol Hill in Washington, Wednesday, Feb. 5, 2020. (AP Photo/Patrick Semansky).

On “public interest,” Dershowitz told Cruz that “[e]very public official that I know believes that his election is in the public interest, and mostly you’re right — your election is in the public interest — and if a president does something which he believes will help him get elected — in the public interest — that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz alleged in his complaint that CNN’s selective editing and quote selection put forth a “one-sided and false narrative that Professor Dershowitz believes and argued that as long as the President believes his reelection is in the public interest, that he could do anything at all – including illegal acts – and be immune from impeachment.”

While the suit survived a motion to dismiss, with a federal judge agreeing in May 2021 that CNN had “presented an official proceeding in a misleading manner,” the case nosedived at summary judgment.

The case didn’t fare better at the 11th Circuit, except for Lagoa’s statement quoting the late Senior U.S. Circuit Judge Laurence Silberman that Times v. Sullivan “has no relation to the text, history, or structure of the Constitution.”

In Lagoa’s view, the precedent has caused “harm” to First Amendment “jurisprudence,” and Dershowitz’s case was a prime example.

“In some instances, [CNN] blurred the line between fact and commentary, and in others, they simply lied about what Dershowitz had said,” the circuit judge wrote, adding that the “only thing standing between Dershowitz and justice is Sullivan.”

Picking up where Lagoa left off, Dershowitz, who five decades ago defended the First Amendment rights of neo-Nazis to march in the streets of Skokie, Ill., now argues at the highest court in the land that free speech protections for the press as articulated in Sullivan have “devolved into near-absolute immunity for media defendants, even when they profoundly misrepresent verifiable public statements” — even creating a “license to lie.”

“Under the common law, the media already can perform aggressive reporting without liability for good-faith mistakes, under common law privileges. That freedom would remain fully protected without Sullivan,” the petition said. “Truth would still remain a complete defense. Strict liability would still be precluded. To the extent media organizations have relied on Sullivan as a license to lie, they have relied on a constitutional error and injustice.”

In response to Law&Crime’s question about whether overturning Times v. Sullivan and its progeny would open the door to “libel warfare,” as critics warn, Dershowitz emphasized that his petition raises other outcomes “short” of that.

“We present a series of options short of overruling Sullivan: limiting it to government officials, as it originally was; changing the malice burden to preponderance; leaving malice to [a] jury,” he said. “These changes should create a fairer balance.”

Nonetheless, the petition does contemplate discarding Sullivan “altogether.”

Time will tell if the Supreme Court sees this case as the ideal vehicle to deal a “devastating” blow and “open up those libel laws.”