Officials at Simon & Schuster this week applauded the Supreme Court’s decision not to take up a case that sought to challenge a key protection for authors and journalists. But in separate dissents, Justices Clarence Thomas and Neil Gorsuch lashed out at the current media landscape and suggested the legal standard at issue in the case, which was established in the landmark civil rights era case New York Times v. Sullivan, should be revisited.
The case in question involves Guy Lawson’s 2015 book Arms and the Dudes: How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History, the basis for the movie War Dogs.
In 2017, Shkelzen Berisha, the son of the former Prime Minister of Albania, sued Lawson and S&S arguing that the book’s portrayal of his involvement in corrupt arms deals was defamatory. In December, 2018, a district court judge dismissed the lawsuit, holding that Berisha, as a “limited public figure,” failed to show “actual malice.” In other words, by the standard set in the Supreme Court’s unanimous 1964 decision in New York Times v. Sullivan, Berisha failed to show that Lawson and S&S had published statements they knew to be false, or with “reckless disregard” as to whether or not they were false.
The 11th Circuit Court of Appeals unanimously affirmed the decision in September, 2020. And with the Supreme Court’s denial of Certiorari last week the case is now over.
In a brief statement, S&S officials said they were gratified by the Supreme Court’s 7-2 ruling. “[The decision] affirms long held rights and protections for authors and journalists under the First Amendment and puts an end to a lawsuit that should never have been brought in the first place,” the statement reads.
But the biggest takeaway from the case may be that two of the court’s conservative justices apparently believe there should be more cases like Berisha’s.
In dissents that take aim more at today’s fractured media landscape than the merits of the case, Thomas and Gorsuch question how well the standard articulated by the court in 1964 in Sullivan holds up today.
“What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable,” Gorsuch writes. “If ensuring an informed democratic debate is the goal, how well do we serve that interest with rules that no longer merely tolerate but encourage falsehoods in quantities no one could have envisioned almost 60 years ago?”
While today's media landscape is obviously different and challenging, the standard articulated in the New York Times v. Sullivan is widely regarded as a pillar of the American free press. Before the decision, handed down in March, 1964, public officials in southern states had effectively used the threat of libel and defamation actions against news organizations to suppress coverage of the civil rights movement. But the actual malice standard adopted by the court effectively mitigated the risk from costly defamation claims.
Gorsuch and Thomas are far from the only federal judges to urge a re-thinking of the Sullivan standard in recent years—though it is unclear from both dissents how the court's intervention—as opposed to Congress's—would alleviate the problems that have emerged in today’s media—a point Gorsuch acknowledged.
“I do not profess any sure answers. I am not even certain of all the questions we should be asking,” Gorsuch conceded in his dissent. “But given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”