Blog Post | 115 KY. L. J. ONLINE | October 30, 2026
Malice, Actually: Dershowitz v. CNN and the Future of the Actual Malice Standard
By: Ethan J. Huffaker, Staff Editor, Vol. 115
The actual malice standard has been a distinctive feature of First Amendment jurisprudence since its introduction in New York Times v. Sullivan, but it has recently come under attack.[1] For seven years, Justices Thomas and Gorsuch have repeatedly signaled their willingness to overturn the longstanding doctrine.[2] Their objections are twofold.[3] First, they argue that the standard is a judicially created doctrine with no basis in the original public meaning of the First Amendment.[4] Second, they argue that the advent of the internet and the ease of publication it has engendered has weakened the justification for the rule.[5]
In the most recent case before the Court, famous Harvard law professor Alan Dershowitz directly asked the Court to overrule Sullivan and its related precedents.[6] The Court denied certiorari, but Justices Thomas and Gorsuch reiterated their desire to overrule Sullivan.[7] Dershowitz v. Cable News Network therefore provides an interesting case study. It illustrates the importance of the First Amendment principles first expressed in New York Times v. Sullivan while also providing an opportunity to discuss the impact of reforms on good-faith media actors.
In President Donald Trump’s first impeachment, Dershowitz defended the President against allegations that he engaged in an improper quid pro quo with Ukrainian President Volodymyr Zelensky.[8] Dershowitz argued that the President’s request for damaging information against Joe Biden was not a ground for impeachment.[9] According to Dershowitz, a quid pro quo could only be a ground for impeachment if the “quo” were illegal.[10] According to Dershowitz, because President Trump’s request was animated by the belief “that his election is in the public interest . . .[,] that [belief] cannot be the kind of quid pro quo that results in impeachment.”[11]
That last creative argument was not received well by the anchors on the Cable News Network (CNN) or by those on social media platforms.[12] While initially commentators for the most part accurately characterized Dershowitz’s comments, eventually, their faithfulness to his exact argument faltered.[13] Anderson Cooper, for instance, stated that Dershowitz argued that “[politicians] can do essentially whatever they want in order to get elected because it’s somehow in the public interest.”[14] Other commentators strayed further, with Paul Begala writing “[t]he Dershowitz Doctrine would make presidents immune from every criminal act.”[15] “[D]ispleased with the coverage,” Dershowitz sought and received two opportunities to explain his views in interviews with CNN hosts.[16]
Apparently dissatisfied with those remedial interviews, Dershowitz then filed a defamation suit in federal court.[17] After years of litigation, Dershowitz uncovered communications that he suggested showed that the CNN anchors “hated” him because he had defended the President.[18] Internal meetings, e-mails, and phone calls confirmed that CNN had decided on the story that President Trump’s legal team was arguing that the President was a “King [and] c[ould] do whatever he wants.”[19] Both the district court and Eleventh Circuit found that this evidence did not amount to actual malice.[20] Instead, it was only evidence of “foolishness, apathy, and an inability to string together a series of common legal principles” or “[g]roupthink.”[21]
The case provides a modern example of the value of Sullivan’s rule. Sullivan’s basic insight was, as Madison put it: “‘[s]ome degree of abuse is inseparable from the proper use of a thing; and in no instance is this more true than in that of the press.’”[22] From this insight, Sullivan taught that the First Amendment protects those erroneous statements that are “inevitable” in free debate.[23] While the CNN anchors certainly misinterpreted Dershowitz’s precise argument, they incidentally made contributions, however meritorious, to a discussion on the proper scope of the executive power and the Trump administration. These undesirable results of “groupthink” or “foolishness,” are the very kinds of common human follies that can be expected from a robust political debate, and the kind of slight exaggerations and misrepresentations on display are perfectly foreseeable results of almost any modern political conversation. That such small foibles should receive reasonable constitutional protection is fundamental to protecting the free flow of debate, lest speakers be too afraid of costly litigation to contribute to the discourse.
The modern debate regarding Sullivan should respect this basic insight. Justice Gorsuch rightly points out that “publishing without investigation, fact-checking, or editing” has often, regrettably, been a viable legal strategy for media defendants.[24] But that development has not been because of Sullivan itself. Rather, the court’s decisions interpreting the actual malice standard after Sullivan have protected much more than the inevitable misstatements that the court sought to protect in Sullivan. Since Sullivan, the court has rejected the view that even an “extreme departure from journalistic standards” may result in a finding of actual malice.[25] Instead, current doctrine eschews any objective measure of reckless disregard of truth or falsity in favor of requiring a showing of a “’high degree of awareness of probable falsity’” or that the defendant “‘entertained serious doubts as to the truth of his publication.’”[26] Consequently, even those exercises of the freedom of the press that are objectively far beyond the proper use of that power have been upheld.
If the Court does find that Sullivan’s core insight is sound but that circumstances require further protection of private plaintiffs, it should consider its missteps in this area before it seeks to chart a completely different course. The actual malice standard is a rare exception to the general practice that objective standards may be applicable to First Amendment cases.[27] In ensuring a proper balance between the harms wrought on private plaintiffs and the values underlying the First Amendment, the court should consider what a more objective standard could do to further the standard’s goal of encouraging productive speech. Doing so would likely avoid the untoward consequences overturning Sullivan would have on good-faith actors while effectively providing plaintiffs a remedy for truly egregious conduct.
[1] New York Times v. Sullivan, 376 U.S. 254, 279-80 (1978); see Lyrissa Lidsky, Defamation Law and the Crumbling Legitimacy of the Fourth Estate, Knight First Amend. Inst. (Jul. 11, 2024) https://knightcolumbia.org/blog/defamation-law-and-the-crumbling-legitimacy-of-the-fourth-estate.
[2] See McKee v. Cosby, 586 U.S. __ , __ (2019) (Thomas, J., concurring in denial of certiorari); Berisha v. Lawson, 594 U.S. __ , __ (2021) (Gorsuch, J., dissenting in denial of certiorari); Dershowitz v. Cable News Network, Inc., 609 U.S. __ , __ (2026) (Thomas, J., dissenting in denial of certiorari).
[3] McKee, 586 U.S. __ (slip op. at 2-3); Berisha, 594 U.S. __ (slip op. at 2-3) (Thomas, J., dissenting in denial of certiorari); id. (slip op. at 2, 4-8) (Gorsuch, J., dissenting in denial of certiorari).
[4] McKee, 586 U.S. __ (slip op. at 2) (arguing that the court in Sullivan was not “applying the First Amendment as it was understood by the people who ratified it”); Berisha, 594 U.S. (slip op. at 2) (Thomas, J., dissenting in denial of certiorari) (arguing that the actual malice standard “bears ‘no relation to the text history or structure of the Constitution’”); id. (slip op. at 2, 4-8) (Gorsuch, J., dissenting in denial of certiorari) (arguing that the founders understood that the liberty of the press came with corresponding duties to not produce defamatory material).
[5] Berisha, 594 U.S. __ , (slip op. at 3) (Thomas, J., dissenting in denial of certiorari) (arguing that the doctrine has led to widespread lies being spread in the modern technological age); id. (slip op. at 4-8) (Gorsuch, J., dissenting in denial of certiorari) (arguing that the incentives in the “new media world” have encouraged falsehoods in quantities far beyond what Sullivan imagined and that the public figure doctrine of the court does not reflect modern realities).
[6] Dershowitz, 609 U.S. __ (slip op. at 1) (Thomas, J., dissenting in denial of certiorari).
[7] Id. at 1-2.
[8] See Dershowitz v. Cable News Network, 153 F.4th 1189, 1191 (11th Cir. 2025); Trump Impeachment: The Short, Medium, and Long Story, British Broadcasting Corporation (February 5, 2020), https://www.bbc.com/news/world-us-canada-49800181.
[9] See Dershowitz, 153 F.4th at 1191; Trump Impeachment: The Short Medium, and Long Story.
[10] Id.
[11] Id.
[12] Id.
[13] See id. at 1192.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 1193–94.
[19] Id. at 1193.
[20] Id.; Dershowitz v. Cable News Network, 668 F.Supp.3d 1278, 1290 (S.D. Fla. 2023).
[21] Dershowitz, 668 F.Supp.3d at 1285; Dershowitz, 153 F.4th at 1194.
[22] Sullivan, 376 U.S. at 271 (quoting 4 Elliot’s Debates on the Federal Constitution 571 (1876)).
[23] Id.
[24] Berisha v. Lawson, 594 U.S. , (2021) (Gorsuch, J., dissenting in denial of certiorari) (emphasis in original); see also Welch v. American Publishing Co., 3 S.W.3d 724, 726, 730 (Ky. 1999) (holding that a reporter merely glancing at a piece and publishing it did not constitute actual malice).
[25] Harte-Hanks Commc’n, Inc. v. Connaughton, 491 U.S. 657, 665 (1989).
[26] Id. at 667 (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964); St. Amant v. Thompson, 390 U.S. 730, 731 (1968)).
[27] See Counterman v. Colorado, 600 U.S. 66, 108–09 (2023) (Barrett, J., dissenting) (collecting different areas where the First Amendment allows an objective standard).