Alan Dershowitz v. Cable News Network, Inc.

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

No. 23-11270

ALAN M. DERSHOWITZ,

Plaintiff-Appellant,

versus

CABLE NEWS NETWORK, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cv-61872-AHS

Before GRANT, LAGOA, and WILSON, Circuit Judges.

GRANT, Circuit Judge:

While representing President Donald J. Trump in

impeachment proceedings before the Senate, law professor Alan

Dershowitz gave a statement about the scope of impeachable

offenses. That statement proved controversial, with many

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reporters and commentators characterizing it as out of bounds.

Dershowitz now claims that CNN in particular, along with its onair personalities, defamed him—intentionally misrepresenting his

comments to tarnish his reputation.

For a public figure like Dershowitz to prevail, defamation

law has long required proof of a speaker’s actual malice: knowledge

of or reckless disregard for the falsity of a statement. But here, the

available evidence points to the reporters’ sincere—if mistaken or

even overwrought—belief in the truth of their accusations.

Dershowitz has presented no evidence that shows otherwise. We

therefore affirm the district court’s order granting summary

judgment to CNN.

I.

Alan Dershowitz is a well-known professor emeritus at

Harvard Law School. He is also a practicing criminal defense

lawyer who made a name for himself representing prominent

figures in some of the most infamous criminal trials in recent

memory—O.J. Simpson and Jeffrey Epstein to name two. As

Dershowitz admits, he has welcomed the notoriety that has

followed.

The dispute here arises out of his representation of another

household name—President Donald Trump. Dershowitz

represented Trump in January 2020 during his first impeachment

trial. In that role he spoke twice on the Senate floor, first giving an

opening statement on January 27 and then returning for questions

two days later.

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Dershowitz’s response to one of those questions sparked

this dispute. Senator Ted Cruz asked: “As a matter of law, does it

matter if there was a quid pro quo? Is it true that quid pro quos are

often used in foreign policy?” Selections from Dershowitz’s

remarks are excerpted below, with the entirety in the Appendix.

The only thing that would make a quid pro quo

unlawful is if the quo were in some way illegal.

Now, we talked about motive. There are three

possible motives that a political figure can have . . . the

second is in his own political interest . . . . I want to

focus on the second one for just one moment.

Every public official whom I know believes that his

election is in the public interest. Mostly, you are right.

Your election is in the public interest. 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. . . .

[I]t cannot be a corrupt motive if you have a mixed

motive that partially involves the national interest,

partially involves electoral, and does not involve

personal pecuniary interest. . . .

[A] complex middle case is: I want to be elected. I

think I am a great President. I think I am the greatest

President there ever was, and if I am not elected, the

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national interest will suffer greatly. That cannot be

[an impeachable offense].

A swift reaction followed in the news and on social media.

Just moments after Dershowitz’s remarks, the Washington Post’s

live-blog coverage of the impeachment trial featured a bracing

headline: “Dershowitz argues that a president is immune if he

views his reelection as in the public interest.” Many Twitter users

reacted strongly as well. 1 One was Joe Lockhart, a CNN

contributor, who posted that Dershowitz’s argument was “crazy”

and “corrupt.” Paul Begala, an opinion columnist at CNN, had a

similar reaction, tweeting that Dershowitz’s statement was “[a]kin

to Nixon telling David Frost, ‘If the President does it, it isn’t illegal.’

Only this time it’s ‘If the President thinks it will help his re-election,

and he thinks his re-elections [sic] helps the country, it isn’t

illegal.’” 2

As for CNN itself, reporting about Dershowitz’s statement

began about twenty minutes after it took place, when a newsletter

was sent out with a headline reading “Dershowitz argues that

1 Since this suit began, Twitter has merged into X Corp. and the platform now

goes by the name “X.” Because the platform was still Twitter when these

events took place, we will proceed with that name. See Murthy v. Missouri, 144

S. Ct. 1972, 1982 n.1 (2024).

2 Quotations contained in the parties’ filings have sometimes included minor

and nonmaterial alterations to the content of the original sources. Here and

throughout, we have directly quoted the sources underlying the claims in this

case.

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reelection of any politician is in the national interest, therefore as a

motivation can’t be impeachable.” Within half an hour, a different

headline was published on CNN’s website: “Alan Dershowitz

argues presidential quid pro quos aimed at reelection are not

impeachable.”

That night and through the next morning, several of CNN’s

broadcasts and publications criticized Dershowitz and his

statement. The critics included Anderson Cooper, who on his

online show “Anderson Cooper Full Circle” said of Dershowitz’s

statement:

He’s essentially saying any politician, because it’s so

important that they get elected . . . that they decide

that it’s really important for everybody that they are

elected, umm, they can do essentially whatever they

want in order to get elected because it’s somehow in

the public interest.

And Begala wrote that “[t]he Dershowitz Doctrine would make

presidents immune from every criminal act.” The Appendix

includes other examples—criticism of Dershowitz’s comments was

widespread at CNN.

Elsewhere too: Business Insider published an article titled

“Trump lawyer Alan Dershowitz argues Trump can do whatever

he wants to get reelected if he believes another term is in the public

interest.” MSNBC published a blog post titled “Dershowitz shocks

with argument about Trump, political interests,” in which the

author called his statement “crazypants bonkers.” And so on.

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Dershowitz, unsurprisingly, was displeased with the

coverage. After he complained on Twitter that the media had

mischaracterized and distorted his statements, CNN allowed him

to go on air twice to explain his position. He participated in

interviews with CNN anchors Wolf Blitzer and Chris Cuomo on

January 30 and 31, respectively.

Unsatisfied, Dershowitz sued CNN for defamation, alleging

that the network had intentionally omitted key parts of his

statement and perpetrated “a deliberate scheme to defraud its own

audience” at his expense. The district court granted CNN’s motion

for summary judgment, reasoning that Dershowitz could not

establish that CNN had acted with actual malice.

II.

This Court reviews the district court’s grant of summary

judgment de novo, drawing “all reasonable inferences in the light

most favorable to the nonmoving party.” Walker v. Life Ins. Co. of N.

Am., 59 F.4th 1176, 1185 (11th Cir. 2023) (quotation omitted). In

defamation cases like this one, “the appropriate summary

judgment question will be whether the evidence in the record

could support a reasonable jury finding either that the plaintiff has

shown actual malice by clear and convincing evidence or that the

plaintiff has not.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–

56 (1986).

III.

Florida law, which we apply here, requires five elements for

a defamation claim: (1) publication; (2) falsity; (3) “knowledge or

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reckless disregard as to the falsity on a matter concerning a public

official”; (4) actual damages; and (5) defamatory content. Turner v.

Wells, 879 F.3d 1254, 1262 (11th Cir. 2018).

The third element resolves this case. The concept of actual

malice was incorporated into constitutional law in New York Times

Co. v. Sullivan, where the Supreme Court considered First

Amendment limits on state-tort defamation liability for public

officials. 376 U.S. 254, 256, 279–80 (1964). Public figures, the Court

said, cannot recover damages for defamation unless they prove

that an untrue statement was made “with knowledge that it was

false or with reckless disregard of whether it was false or not.” Id.

at 279–80. That is, “actual malice.” Id. at 280. Florida has since

implemented that same standard as a matter of state law. See Jews

for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).

A showing of actual malice requires “sufficient evidence to

permit the conclusion that the defendant in fact entertained serious

doubts as to the truth of his publication,” or that he “acted with a

high degree of awareness of probable falsity.” St. Amant v.

Thompson, 390 U.S. 727, 731 (1968); Masson v. New Yorker Mag., Inc.,

501 U.S. 496, 510 (1991) (alteration adopted and quotation

omitted). “Mere negligence” is not enough. Masson, 501 U.S. at

510. Instead, the speaker’s conduct must rise to the level of

recklessness. Nor should actual malice be confused with “evil

intent or a motive arising from spite or ill will.” Id. Speakers’

feelings about their subjects are irrelevant—all that matters are the

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speakers’ subjective beliefs about the truth of their own statements.

Turner, 879 F.3d at 1273.

Dershowitz, who no one disputes is a public figure, has

presented no evidence that CNN’s commentators or producers

acted with actual malice. To begin, CNN has offered unrefuted

evidence that its commentators believed in the truth of their

statements about Dershowitz; all of the journalists testified that

they believed their statements were fair and accurate. And

Dershowitz did not counter that evidence. Instead, he repeated a

boilerplate objection that the testimony was “scripted and selfserving.” Probably so. But that does not render it non-probative,

and in the absence of contrary evidence, questioning the witnesses’

credibility is not enough to create a factual dispute. See Penley v.

Eslinger, 605 F.3d 843, 853 (11th Cir. 2010).

Dershowitz next points to a series of internal emails and

phone calls at CNN, arguing that these show the network and its

commentators collaborating to deceive their viewers and damage

his reputation. For one, right after Dershowitz’s statement a CNN

correspondent emailed then–CNN President Jeff Zucker that

Dershowitz had “gone crazy.” “Yup,” Zucker replied, “Him and

Lindsay [sic] Graham.” And later that afternoon, Zucker held a

conference call with several producers, executives, and “news

gatherers.” One producer summarized that “very brief” meeting’s

takeaway as “Trump legal team making argument that a President

is King & can do whatever he wants.” Another producer echoed

that characterization.

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These communications suggest not conspiracy but sincerity,

however misplaced. To start, it appears that none of the

commentators who Dershowitz says defamed him participated in

Zucker’s conference call. And though Dershowitz argues that the

emails reveal “marching orders about how the story should be

spun,” the emails themselves do not support that contention; they

contain characterizations of Dershowitz’s remarks, but no

directives or orders. If anything, the communications tend to

support CNN’s position that the relevant speakers believed in the

truth of their reporting.

What’s more, the commentators all testified that they

reached their conclusions about the newsworthiness and

interpretation of Dershowitz’s statement independently of any

direction from Zucker or other leaders at CNN. Again, Dershowitz

disputes this testimony as “scripted and self-serving,” but without

any evidence his objection cannot move the needle. And at least

two commentators—Joe Lockhart and Paul Begala—tweeted

critically about Dershowitz’s statement while he was still speaking

or shortly after he concluded, refuting any contention that their

opinions were formed a few hours later at Zucker’s direction.

Dershowitz also contends that the similarity between the

reporting of CNN’s commentators is evidence that they “colluded

with each other and CNN staff to smear Dershowitz, whom they

all hated for sticking to his principles and defending Trump.”

Dershowitz’s assessment of the CNN commentators’ feelings

about him may well be accurate—but it is also irrelevant. As we

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have explained, the question is not whether they disliked

Dershowitz, Trump, or both; it is whether they knew their

statements were false. See Masson, 501 U.S. at 510. Again, all of the

commentators testified that they believed their statements were

true, and Dershowitz offers no evidence to contradict that

testimony. The fact that the CNN commentators all presented

similar interpretations of Dershowitz’s statements (as did many

other news outlets at the time) speaks to ideological lockstep, not

deliberate misrepresentation. Groupthink, however unwelcome,

is not the same thing as actual malice.

In a final effort, Dershowitz points to two out-of-circuit

cases that he says are highly analogous, but neither comparison

holds water. The first is Schiavone Construction Co. v. Time, Inc., in

which the Third Circuit concluded that a magazine’s decision to

deliberately ignore exculpatory evidence was enough to show

actual malice. 847 F.2d 1069, 1092 (3d Cir. 1988). Dershowitz

contends that his case is just like Schiavone—stronger, even—

because CNN “omitted key portions of what [he] said to make it

sound like he said the precise opposite.” But that’s not so. CNN

aired the full video of Dershowitz’s comments, and also invited

him on air (multiple times) to clarify his position. And unlike

Schiavone, we see no evidence here that the network intentionally

hid information that would have proven the challenged claims

untrue.

The second case Dershowitz offers is Goldwater v. Ginzburg,

414 F.2d 324 (2d Cir. 1969). There, the authors of an article about

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Senator Barry Goldwater had predetermined their message:

“Goldwater is so belligerent, suspicious, hot-tempered, and rigid

because he has deep-seated doubts about his masculinity.” Id. at

329. As research progressed, the authors ignored materials except

those that were derogatory of Goldwater—even when

complimentary statements expressly qualified the derogatory ones.

Id. The authors also conducted a sham poll of psychiatrists, the

result of which—of course—was highly critical of Goldwater. Id.

at 329–32. The Second Circuit upheld a jury verdict in favor of

Goldwater’s defamation claim. Id. at 328. Dershowitz, unlike

Goldwater, has offered no extrinsic evidence to show that the

commentators at CNN acted without regard for the truth of their

statements with the express purpose of destroying his reputation.

Nor has he shown that leaders at CNN instructed them to report

in a particular way as part of a scheme against him.

A better comparator than the ones Dershowitz proposes is

this Court’s recent decision in Project Veritas v. Cable News Network,

Inc., 121 F.4th 1267 (11th Cir. 2024). Anchors for CNN (also the

defendant there) incorrectly reported that an investigative

journalistic organization had been suspended from Twitter for

spreading misinformation when the real violation was that it had

allegedly posted private information.3 Id. at 1271–79, 1283–84. But

there, unlike here, the plaintiff offered ample evidence of actual

3 That, too, was flimsy because the “private information” was a house number

in the background of a video. Project Veritas, 121 F.4th at 1272, 1283.

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malice, showing that the anchors had plenty of reasons to doubt

what they reported. Id. at 1283–84.

To start, four days earlier, an article published on CNN’s

website had discussed the true cause for the suspension. Id. at 1272,

1283–84. And one CNN anchor who later echoed the

misinformation claim had already reported that sharing of private

information led to the suspension. Id. By relying on these

contradictions in its complaint, the plaintiff had “shouldered its

heavy burden” of alleging actual malice. Id. at 1283 (alteration

adopted and quotation omitted). Here, in contrast, Dershowitz has

offered no contradiction or other evidence that CNN’s

commentators doubted the truth of what they reported.

* * *

In his zealous and highly scrutinized representation,

Dershowitz made a spontaneous series of remarks before Congress

that, he says, were misinterpreted by pundits. But even if those

commentators did report incorrectly on Dershowitz’s statements,

he has offered no evidence that they did so intentionally. If

anything, the evidence shows that they believed in the truth of

their reporting, and that they formed their opinions independently.

Without evidence of actual malice Dershowitz’s defamation claim

cannot go forward, so we AFFIRM the district court’s grant of

summary judgment to CNN.

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Appendix

Dershowitz Statement:

Yesterday, I had the privilege of attending the rollingout of a peace plan by the President of the United

States regarding the Israel-Palestine conflict, and I

offered you a hypothetical the other day: What if a

Democratic President were to be elected and

Congress were to authorize much money to either

Israel or the Palestinians and the Democratic

President were to say to Israel “No; I am going to

withhold this money unless you stop all settlement

growth” or to the Palestinians “I will withhold the

money Congress authorized to you unless you stop

paying terrorists,[”] and the President said “Quid pro

quo. If you don’t do it, you don’t get the money. If

you do it, you get the money”? There is no one in this

Chamber who would regard that as in any way

unlawful. The only thing that would make a quid pro

quo unlawful is if the quo were in some way illegal.

Now, we talked about motive. There are three

possible motives that a political figure can have: One,

a motive in the public interest, and the Israel

argument would be in the public interest; the second

is in his own political interest; and the third, which

hasn’t been mentioned, would be in his own financial

interest, his own pure financial interest, just putting

money in the bank. I want to focus on the second one

for just one moment.

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Every public official whom I know believes that his

election is in the public interest. Mostly, you are right.

Your election is in the public interest. 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.

I quoted President Lincoln, when President Lincoln

told General Sherman to let the troops go to Indiana

so that they could vote for the Republican Party. Let’s

assume the President was running at that point and it

was in his electoral interests to have these soldiers put

at risk the lives of many, many other soldiers who

would be left without their company. Would that be

an unlawful quid pro quo? No, because the President,

A, believed it was in the national interest, but B, he

believed that his own election was essential to victory

in the Civil War. Every President believes that. That

is why it is so dangerous to try to psychoanalyze the

President, to try to get into the intricacies of the

human mind.

Everybody has mixed motives, and for there to be a

constitutional impeachment based on mixed motives

would permit almost any President to be impeached.

How many Presidents have made foreign policy

decisions after checking with their political advisers

and their pollsters? If you are just acting in the

national interest, why do you need pollsters? Why do

you need political advisers? Just do what is best for

the country. But if you want to balance what is in the

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public interest with what is in your party’s electoral

interest and your own electoral interest, it is

impossible to discern how much weight is given to

one or the other.

Now, we may argue that it is not in the national

interest for a particular President to get reelected or

for a particular Senator or Member of Congress—and

maybe we are right; it is not in the national interest

for everybody who is running to be elected—but for

it to be impeachable, you would have to discern that

he or she made a decision solely on the basis of, as the

House managers put it, corrupt motives, and it

cannot be a corrupt motive if you have a mixed

motive that partially involves the national interest,

partially involves electoral, and does not involve

personal pecuniary interest.

The House managers do not allege that this decision,

this quid pro quo, as they call it—and the question is

based on the hypothesis there was a quid pro quo. I

am not attacking the facts. They never allege that it

was based on pure financial reasons. It would be a

much harder case.

If a hypothetical President of the United States said

to a hypothetical leader of a foreign country: Unless

you build a hotel with my name on it and unless you

give me a million-dollar kickback, I will withhold the

funds. That is an easy case. That is purely corrupt

and in the purely private interest.

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But a complex middle case is: I want to be elected. I

think I am a great President. I think I am the greatest

President there ever was, and if I am not elected, the

national interest will suffer greatly. That cannot be

[an impeachable offense].

166 Cong. Rec. S650–51 (daily ed. Jan. 29, 2020) (statement

of Alan Dershowitz).

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CNN Commentary:

He’s essentially saying any politician, because it’s so

important that they get elected . . . that they decide

that it’s really important for everybody that they are

elected, umm, they can do essentially whatever they

want in order to get elected because it’s somehow in

the public interest.

Anderson Cooper, Anderson Cooper Full Circle (CNN online

broadcast, aired Jan. 29, 2020, at 6:34 p.m.).

This view of the executive, the executive power that

Dershowitz basically announced today, would make

the President a king. It would put the President

beyond the rule of law, and . . . you and I are talking

about a quid pro quo here of exchanging, withholding

military aid, but we could think of a lot of other things

that there’s no version, you know, could you kill your

opponent? Could you, you know, leak dirt on

someone? There’s countless[—]there’s no limit to

basically how badly behaved people could be, and

they could actually commit crimes which we know,

you know, Dershowitz is essentially saying it doesn’t

matter what the quid pro quo is as long as you think

you should be elected.

Anne Milgram, Anderson Cooper Full Circle (CNN online broadcast,

aired Jan. 29, 2020, at 6:35 p.m.).

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Having worked in about a dozen campaigns, there is

always the sense that, boy, if we win, it’s better for

the country. But that doesn’t give you license to

commit crimes or to do things that are unethical. So,

it was absurd. And what I thought when I was

watching was this is un-American. This is what you

hear from Stalin. This is what you hear from

Mussolini, what you hear from authori—, from

Hitler, from all the authoritarian people who

rationalized, uhh you know, in some cases genocide,

based on what was in the public interest.

Joe Lockhart, Erin Burnett OutFront (CNN television

broadcast, aired Jan. 29, 2020, at 7:11 p.m.).

I did not go to Harvard Law, but I did go to the

University of Texas School of Law, where I studied

criminal law and constitutional law, but never

dreamed a legendary legal mind would set them both

ablaze on the Senate floor.

The Dershowitz Doctrine would make presidents

immune from every criminal act, so long as they

could plausibly claim they did it to boost their reelection effort. Campaign finance laws: out the

window. Bribery statutes: gone. Extortion: no more.

This is Donald Trump’s fondest figurative dream: to

be able to shoot someone on Fifth Avenue and get

away with it.

Paul Begala, Presenting the Ludicrous ‘Dershowitz Doctrine,’ (CNN

online commentary, posted Jan. 29, 2020, at 9:11 p.m.).

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The President’s defense team [Dershowitz] seems to

be redefining the powers of the President, redefining

them towards infinity. . . . If you look at what he says

there it blows your mind. He says if a President is

running for re-election because he thinks getting

elected will help America, he can do anything,

anything. And that redefines the presidency and,

frankly, redefines America.

John Berman, New Day (CNN television broadcast, aired Jan. 30,

2020, at 6:17 a.m.).

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23-11270 LAGOA, J., Concurring 1

LAGOA, Circuit Judge, concurring:

I concur with the majority because, under New York Times

Co. v. Sullivan, 376 U.S. 254 (1964), we are obliged to hold publicfigure defamation plaintiffs to the actual-malice standard—a

standard that “has no relation to the text, history, or structure of the

Constitution.” Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 251

(D.C. Cir. 2021) (Silberman, J., dissenting in part). I write separately

to explain my view of the harm Sullivan has caused in our First

Amendment jurisprudence.

I.

As a preliminary matter, there can be little dispute that CNN

“defamed” Alan Dershowitz under any common understanding of

that term. CNN, through its various writers and anchors,

repeatedly misrepresented statements that Dershowitz made on

the floor of the Senate—that is, statements whose accuracy could

easily be verified against the Senate transcript and video footage,

and which CNN’s employees all could have watched live. In some

instances, they blurred the line between fact and commentary, and

in others, they simply lied about what Dershowitz had said. And—

though damages were not ultimately tested at trial—Dershowitz

offered evidence at the summary-judgment stage to show that he

was harmed as a result because news outlets he finds more

desirable stopped inviting him to speak after the CNN coverage,

and he was left with access only to platforms he found less

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2 LAGOA, J., Concurring 23-11270

desirable. All of this is to say, I agree with the district court that the

only thing standing between Dershowitz and justice is Sullivan.

Sullivan and its progeny are policy-driven decisions dressed

up as constitutional law, and they find little—if any—support in our

history.1 At common law, when the First and Fourteenth

Amendments were ratified, public figures asserting libel claims

were not held to any sort of heightened standard. McKee v. Cosby,

586 U.S. 1172, 1176–77 (2019) (Thomas, J., concurring in denial of

certiorari). From the Founding until Sullivan, defamation and libel

laws were “almost exclusively the business of state courts and

legislatures,” and “[u]nder the then prevailing state libel law, the

defamed individual had only to prove a false written publication

that subjected him to hatred, contempt, or ridicule.” Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 765 (1985)

(White, J., concurring in judgment). Truth was a defense, as it is

now, but “general injury to reputation” was presumed and

additional showings were required only for special and punitive

damages. See id.

Indeed, prior to Sullivan, instead of heightening the standard

a plaintiff had to meet in defamation actions, we “deemed libels

against public figures to be, if anything, more serious and injurious

1 As the district court observed in the summary judgment order below, Sullivan is “a great example of how bad facts can contribute to the making of unnecessary law, and why judges and Justices should not be in the business of

policy writing.” Dershowitz v. Cable News Network, Inc., 668 F. Supp. 3d 1278,

1286 (S.D. Fla. 2023).

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23-11270 LAGOA, J., Concurring 3

than ordinary libels.” McKee, 586 U.S. at 1177 (Thomas, J.,

concurring in denial of certiorari). Blackstone, for example,

defined libel as “malicious defamation[] of any person, and

especially a magistrate, made public by either printing, writing,

signs, or pictures, in order to provoke him to wrath, or expose him

to public hatred, contempt, and ridicule.” 4 William Blackstone,

Commentaries *150. And—far from endorsing greater skepticism

of public-figure defamation claims—Blackstone observed that

“[w]ords also tending to scandalize a magistrate, or a person in

public trust, are reputed more highly injurious than when spoken

of a private man.” 3 Blackstone *124. In 1808, the Supreme Judicial

Court of Massachusetts explained why this was so, noting that “the

publication of falsehood and calumny against public officers, or

candidates for public offices, is an offence most dangerous to the

people, and deserves punishment, because the people may be

deceived, and reject the best citizens, to their great injury, and it

may be to the loss of their liberties.” Commonwealth v. Clap, 4 Mass.

(1 Tyng) 163, 169–70 (Mass. 1808); see also, e.g., Nev. State J. Publ’g

Co. v. Henderson, 294 F. 60, 63 (9th Cir. 1923) (affirming the propriety

of a jury instruction that included, in part, the admonition that

“[n]either the newspaper nor the citizen may with impunity falsely

charge the candidate or the public officer with specific acts of

criminality or shameful misconduct”). Justice Story, riding circuit

in Rhode Island, declared it “as plain and well settled as any

doctrine of the law” that, as to libel, “[t]he liberty of speech, or of

the press, has nothing to do with this subject. They are not

endangered by the punishment of libellous publications. The

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4 LAGOA, J., Concurring 23-11270

liberty of speech and the liberty of the press do not authorize

malicious and injurious defamation.” Dexter v. Spear, 7 F. Cas. 624,

624 (C.C.D. R.I. 1825) (No. 3867).

II.

Sullivan, however, upended this “plain and well settled”

model and took “the first major step in what proved to be a

seemingly irreversible process of constitutionalizing the entire law

of libel and slander.” Dun & Bradstreet, 472 U.S. at 766 (White, J.,

concurring in judgment). In Sullivan, the Court usurped control

over this field of speech-related torts and invented “a federal rule

that prohibits a public official from recovering damages for a

defamatory falsehood relating to his official conduct unless he

proves that the statement was made with ‘actual malice’—that is,

with knowledge that it was false or with reckless disregard of

whether it was false or not.” 367 U.S. at 279–80. Three years later,

this same rule was extended to “public figures” in addition to public

officials. See Dun & Bradstreet, 472 U.S. at 766 (White, J., concurring

in judgment) (citing Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155

(1967)). Certain members of the Court attempted to extend this

principle even further. In Rosenbloom v. Metromedia, Inc., 403 U.S. 29

(1971), for example, at least three Justices would have stretched

Sullivan to apply to private plaintiffs, imposing an across-the-board

actual-malice standard. See Dun & Bradstreet, 472 U.S. at 766

(White, J., concurring in judgment) (citing Rosenbloom, 403 U.S. at

52–57). Fortunately for private plaintiffs, the authoring Justices

failed to secure a majority vote as to that point. Three years later,

however, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court

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held for the first time that falsity and harm were not enough, and

even private plaintiffs must show some sort of “fault,” negligence

at the least, to recover for defamation. See Dun & Bradstreet, 472

U.S. at 766 (White, J., concurring in judgment) (citing Gertz, 418

U.S. at 347, 350). And, even with that proof of culpable fault,

damages were not presumed but had to be proven. See id. (citing

Gertz, 418 U.S. at 349). Finally, Gertz established that no plaintiff

could recover punitive damages for defamation without showing

Sullivan-style malice. See id. (citing Gertz, 418 U.S. at 350). With

this series of cases—Sullivan, Curtis, Rosenbloom, and Gertz—one

generation of the Supreme Court succeeded in imposing federal

constitutional limitations (seemingly untethered to the

Constitution’s original meaning) on all defamation claims brought

by all manner of plaintiffs.

Justice White recognized the ill-fated trajectory of this line

of cases after originally joining the majority in Sullivan. In his

concurrence in Dun & Bradstreet, Justice White described his

epiphany as follows:

I joined the judgment and opinion in New York

Times. I also joined later decisions extending the New

York Times standard to other situations. But I came to

have increasing doubts about the soundness of the

Court’s approach and about some of the assumptions

underlying it. I could not join the plurality opinion

in Rosenbloom, and I dissented in Gertz, asserting that

the common-law remedies should be retained for

private plaintiffs. I remain convinced that Gertz was

erroneously decided. I have also become convinced

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6 LAGOA, J., Concurring 23-11270

that the Court struck an improvident balance in

the New York Times case between the public’s interest

in being fully informed about public officials and

public affairs and the competing interest of those who

have been defamed in vindicating their reputation.

472 U.S. at 767 (White, J., concurring in judgment). In the

explanation that followed, Justice White elaborated on the central

problem in Sullivan: A people who govern themselves, as the

Founders intended us to do, are entitled to adequate information

about their government and their representatives, and that essential

flow of information warrants First Amendment protection; but

protecting lies—by insulating those who spread them behind an

iron barrier, to be breached only by a showing of actual malice—

does nothing to support an informed populus and, instead, has the

contrary effect of leaving lies uncorrected. See id. at 767–69; see also

id. at 769 (“Also, by leaving the lie uncorrected, the New York Times

rule plainly leaves the public official without a remedy for the

damage to his reputation. Yet the Court has observed that the

individual’s right to the protection of his own good name is a basic

consideration of our constitutional system, reflecting ‘“our basic

concept of the essential dignity and worth of every human being—

a concept at the root of any decent system of ordered liberty.”’”

(quoting Gertz, 418 U.S. at 341)).

As the Court concluded in Gertz, “there is no constitutional

value in false statements of fact. Neither the intentional lie nor the

careless error materially advances society’s interest in ‘uninhibited,

robust, and wide-open’ debate on public issues.” 418 U.S. at 340.

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But that is precisely Sullivan’s effect. Under the actual-malice

standard, the public’s “only chance of being accurately informed is

measured by the public [figure’s] ability himself to counter the lie,

unaided by the courts. That is a decidedly weak reed to depend on

for the vindication of First Amendment interests.” Dun &

Bradstreet, 472 U.S. at 768–69 (White, J., concurring in judgment);

see also Rosenbloom, 403 U.S. at 46 (“While the argument that public

figures need less protection because they can command media

attention to counter criticism may be true for some very prominent

people, even then it is the rare case where the denial overtakes the

original charge. Denials, retractions, and corrections are not ‘hot’

news, and rarely receive the prominence of the original story.”);

Gertz, 418 U.S. at 370 (White, J., dissenting) (“As I see it, there are

wholly insufficient grounds for scuttling the libel laws of the States

in such a wholesale fashion, to say nothing of deprecating the

reputation interest of ordinary citizens and rendering them

powerless to protect themselves.”).

Quite the journey we have taken from Sullivan’s attempt to

protect the public’s interest in being fully informed on matters of

public import. But that, in fact, precisely identifies the error at the

heart of Sullivan: In “federaliz[ing] major aspects of libel law by

declaring unconstitutional in important respects the prevailing

defamation law in all or most of the 50 States,” Gertz, 418 U.S. at

370 (White, J., dissenting), the Court “made little effort to ground

[its] holdings in the original meaning of the Constitution,” McKee,

586 U.S. at 1173 (Thomas, J., concurring in denial of certiorari). As

Justice Thomas pointedly observed in McKee, in its attempt to strike

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8 LAGOA, J., Concurring 23-11270

a balance between “the law of defamation and the freedoms of

speech and press protected by the First Amendment,” Gertz, 418

U.S. at 355 (Douglas, J., dissenting), the Sullivan Court consulted a

wide variety of sources: “general proposition[s]” about the value

of free speech and the inevitability of false statements, see Sullivan,

376 U.S., at 269–72 & n.13; judicial decisions involving criminal

contempt and official immunity, id. at 272–73, 282–83; public

responses to the Sedition Act of 1798, id. at 273–77; comparisons

of civil libel damages to criminal fines, id. at 277–78; policy

arguments against “self-censorship,” id. at 278–79; the “consensus

of scholarly opinion,” id. at 280 n.20; and state defamation laws, id.,

at 280–82. McKee, 586 U.S. at 1175 (Thomas, J., concurring in denial

of certiorari). But notably absent from this litany of sources is

anything informing the original meaning of the First Amendment

or the original understanding of the Fourteenth Amendment at the

time of its ratification.2 Thus although the Court declared that its

2 I recognize the “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the

scope of the right against the Federal Government).” N.Y. State Rifle & Pistol

Ass’n, Inc. v. Bruen, 597 U.S. 1, 37 (2022); see also United States v. Rahimi, 602

U.S. 680, 692 n.1 (2024) (same). As in Bruen and Rahimi, resolving this dispute

is unnecessary here because the public understanding of the right to free

speech was, for all relevant purposes, the same with respect to public figures

at both moments in our constitutional history—and, as I explain throughout,

the actual-malice standard did not emerge until a century after ratification of

the Fourteenth Amendment.

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actual-malice standard was “required by the First and Fourteenth

Amendments,” Sullivan, 376 U.S. at 283, “it made no attempt to

base that rule on the original understanding of those provisions,”

McKee, 586 U.S. at 1175 (Thomas, J., concurring in denial of

certiorari). On the contrary, the Court itself has subsequently

acknowledged that “the rule enunciated in the New York Times

case . . . is . . . largely a judge-made rule of law,” which “is not

revealed simply by its literal text, but rather is given meaning

through the evolutionary process of common-law adjudication.”

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501–02

(1984).

III.

What, then, does the original meaning of the First

Amendment tell us about the propriety of an actual-malice

standard? To understand the original meaning of the First

Amendment is to understand law as those who ratified it did. Our

starting place is, therefore, the natural law and our accompanying

natural rights as they were understood pre-ratification. Natural

rights are those that we possess innately as human beings; their

existence does not depend on government endowment. See

generally Jud Campbell, Natural Rights and the First Amendment, 127

Yale L.J. 246, 268–80 (2017). As to expression, our Founders

recognized a variety of natural rights, including (as relevant here)

speaking, writing, and publishing. See id. at 269; see also, e.g.,

4 Annals of Cong. 918 (1794) (statement of Rep. William Giles)

(addressing the “the inalienable privilege of thinking, of speaking,

of writing, and of printing”); Proposal by Roger Sherman to House

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10 LAGOA, J., Concurring 23-11270

Committee of Eleven ( July 21–28, 1789), in The Complete Bill of

Rights: The Drafts, Debates, Sources, and Origins 83 (Neil H.

Cogan ed., 1997) (“Speaking, writing and publishing” are among

“certain natural rights which are retained”); Resolution of the

Virginia House of Delegates, Va. Gazette, & Gen.

Advertiser (Richmond), Jan. 3, 1798, at 2 (referring to the “natural

right of speaking and writing freely”); Letter from Thomas

Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of

Thomas Jefferson, 676, 678 ( Julian P. Boyd ed. 1971) (“[R]ights

which it is useless to surrender to the government” include “the

rights of thinking, and publishing our thoughts by speaking or

writing”); Letter from Thomas Paine to Thomas Jefferson (Mar.

1788), in 13 The Papers of Thomas Jefferson at 4, 5 (1956)

(“[N]atural rights” include “the rights of thinking, speaking,

forming and giving opinions”). The “liberty of the press,” meaning

the freedom to print information, fell within the scope of natural

rights that pre-existed our Bill of Rights. See, e.g., James Alexander,

Letter to the Editor, Pa. Gazette (Philadelphia), Nov. 24, 1737,

reprinted in Freedom of the Press from Zenger to Jefferson, 62, 66

(Leonard W. Levy ed., 1996) (identifying “freedom of speech and

liberty of the press” as “natural rights”). Closely related to

freedom of the press—distinct, according to some; overlapping

according to others—was the freedom to publish, most closely

encapsulating that which we now think of as “journalism.” See

Campbell at 270 (first citing 8 Annals of Cong. 2147–48 (1798)

(statement of Rep. Otis) (distinguishing “the liberty of writing,

publishing, and speaking” from “the freedom of the press”), then

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citing American Intelligence, Indep. Gazetteer (Philadelphia), Jan. 5,

1789, at 3 (“Freedom of speech, which is nothing more than the

freedom of press, is the great bulwark of liberty”), and then citing

Of the Liberty of the Press and Elections, London Evening Post, Oct.

29, Nov. 9, Nov. 14, 1754, reprinted in 16 Scots Magazine 518–19

(1754) (referring generally to “the liberty of individuals to

communicate their thoughts to the public”)). There is little doubt,

then, that our Founding generation recognized the freedoms to

think, speak, write, print, and share ideas as natural rights endowed

in the people by their Creator, not their government.

With the natural right established, we turn to the limits the

government was authorized to impose on speech. 3 Those limits

turn on two central inquiries: the scope of the natural right and the

extent to which we, as a people, agreed to some restraint of the

natural right in exchange for the benefits that nationhood offered.

Enter here the concept of natural law, which, at the least, provides

the understanding that, regardless of any government structure,

one individual may not interfere with another’s natural rights. See

Campbell at 271; Philip A. Hamburger, Natural Rights, Natural Law,

and American Constitutions, 102 Yale L.J. 907, 922–30 (1993)

(“[B]eing equally free, individuals did not have a right to infringe

the equal rights of others, and, correctly understood, even selfpreservation typically required individuals to cooperate—to avoid

3 Hereinafter, I use “speech” as a catch-all term to encompass oral speech,

writing, printing, circulating, and otherwise expressing one’s ideas to an audience.

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12 LAGOA, J., Concurring 23-11270

doing unto others what they would not have others do unto them.”

(citing John Locke, Two Treatises of Government 290 (Peter

Laslett et., 2d ed. 1967) (bk. II, ch. ii, § 8))). As James Wilson

explained it in his 1790 Lectures on Law, as to avoiding injury and

injustice under the natural law, each person may act “for the

accomplishment of those purposes, in such a manner, and upon

such objects, as his inclination and judgment shall direct; provided

he does no injury to others; and provided some publick interests do

not demand his labours. This right is natural liberty.” James

Wilson, Of the Natural Rights of Individuals, in 2 Collected Works of

James Wilson 1055–56 (Kermit L. Hall & Mark David Hall eds.,

2007).

Consider also social-contract theory, or the idea that those

who formed a body politic surrendered some of their liberty in

doing so. Views on this were quite varied. See Campbell at 273–75.

Blackstone, for one, believed that “every man, when he enters into

society, gives up a part of his natural liberty.” 1 Blackstone *125.

Others viewed it as “necessary to give up [natural] liberty” or at

least necessary to “surrender[] the power of controuling . . . natural

alienable rights.” 1 Zephaniah Swift, A Digest of the Laws of the

State of Connecticut 15 (New Haven, S. Converse 1822);

Theophilus Parsons, Essex Result, reprinted in Memoir of

Theophilus Parsons 359, 366 (Boston, Ticknor & Fields 1861). At

the other end of the spectrum were those who held fast that “the

people surrender nothing” in establishing a nation. The Federalist

No. 84, at 578 (Alexander Hamilton) ( Jacob E. Cooke ed., 1961).

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These competing views on the limits imposed by a social

contract largely mirrored competing views on the scope of natural

rights themselves: Thomas Jefferson, for one, maintained that “the

idea is quite unfounded, that on entering into society we give up

any natural right,” but this view traveled hand in hand with his

belief that natural rights were inherently limited by a bar on

“commit[ting] aggression on the equal rights of another” and the

“natural duty of contributing to the necessities of the society.”

Letter from Thomas Jefferson to Francis W. Gilmer ( June 7, 1816),

reprinted in 15 Writings of Thomas Jefferson 23, 24 (Andrew A.

Lipscomb & Albert Ellery Bergh eds., 1905); see also Campbell at

274. In other words, if the natural law already imposed measured

limits on the exercise of a natural right, nothing additional need be

sacrificed by entry into the social contract of a structured society.

Natural law scholar Jud Campbell has summarized the result

of these tensions and balances, explaining that “whether inherently

limited by natural law or qualified by an imagined social contract,

retained natural rights were circumscribed by political authority to

pursue the general welfare. Decisions about the public good,

however, were left to the people and their representatives—not to

judges—thus making natural rights more of a constitutional

lodestar than a source of judicially enforceable law.” Campbell at

276. Thus, the Founders simultaneously understood that freedom

of speech was both a natural right not dependent on government

creation, and also subject to certain limitations for the public

good—so long as those limitations did not abridge the natural right

as it existed in a system of natural law. And while the freedoms of

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14 LAGOA, J., Concurring 23-11270

speech and of the press were both viewed as natural rights, they

were viewed as properly subject to different regulation, with

recognition that written statements were “more extended” and

“more strongly fixed,” thus “posing a greater threat to public

order.” Id. at 280 (citing James Sullivan, Dissertation upon the

Constitutional Freedom of the Press in the United States 12

(Boston, Joseph Nancrede ed.,1801)).

We turn next to the contours of the natural right and the

natural law, and the types of restriction that were viewed as

consistent with those boundaries. The Founders widely believed

that “opinions,” as James Madison observed to his colleagues, “are

not the objects of legislation.” Annals of Cong. 934 (1794)

(statement of Rep. James Madison); see also Francis Hutcheson, An

Inquiry into the Original of Our Ideas of Beauty and Virtue: In

Two Treatises 185 (Knud Haakonssen ed., 2004) (1726) (explaining

that “the Right of private Judgment, or of our inward Sentiments,

is unalienable; since we cannot command ourselves to think what

either we our selves or any other Person please”). In other words,

opinion, understood as non-volitional thought, was not subject to

government regulation at the time of the Founding. See Campbell

at 281 (first citing PA Const. of 1776, ch. 1, § 12 (protecting the

freedom to express “sentiments”), and then citing PA Const. of

1790, art. IX, § 7 (enshrining freedom of “thoughts and opinions”));

see also Letter from Thomas Jefferson to David Humphreys (Mar.

18, 1789), in 14 The Papers Of Thomas Jefferson, at 676, 678 (1958)

(identifying “the rights of thinking, and publishing our thoughts by

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speaking or writing,” as natural rights not surrendered to

government restriction).

But the freedom of opinion raises another question: What

forms an opinion? History confirms that the freedom to express

opinions was, indeed, limited to honest statements and did not

encompass dishonesty or deceit. For instance, even in the debates

over the Sedition Act, a persistent and widespread consensus

emerged that “well-intentioned statements of opinion, including

criticisms of government, were constitutionally shielded.”

Campbell at 284; see also Alexander Addison, Analysis of the Report

of the Committee of the Virginia Assembly, on the Proceedings of

Sundry of the Other States in Answer to their Resolutions 42

(Philadelphia, Zachariah Poulson Jr., ed., 1800) (“[I]t is well known

that, as by the common law of England, so by the common law of

America, and by the Sedition act, every individual is at liberty to

expose, in the strongest terms, consistent with decency and truth

all the errors of any department of the government.”).

Consistent with the notion that the natural right to free

speech coexisted with a limitation forbidding injurious lies, “10 of

the 14 States that had ratified the Constitution by 1792 had

themselves provided constitutional guarantees for free

expression,[4] and 13 of the 14 nevertheless provided for the

4 See Del. Const. 1792, Art. I, § 5; Ga. Const. 1777, Art. LXI; Md. Const. 1776,

Declaration of Rights, § 38; Mass. Const. 1780, Declaration of Rights, Art. XVI;

N.H. Const. 1784, Art. 1, § 22; N.C. Const. 1776, Declaration of Rights, Art.

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16 LAGOA, J., Concurring 23-11270

prosecution of libels.[ 5]” Gertz, 418 U.S. at 380–81 (White, J.,

dissenting) (citing Roth v. United States, 354 U.S. 476, 482 (1957)).

IV.

What do we take away from the original sources? As the

Supreme Court observed in Roth, “[t]he protection given speech

and press was fashioned to assure unfettered interchange of ideas

for the bringing about of political and social changes desired by the

people,” 354 U.S. at 484, but such assurance focused on the

exchange of ideas in service of advancing truth and imposed no

additional burdens to recovery based on the harmed party’s station

in society. In a 1774 letter to the inhabitants of Quebec, the

Continental Congress expressed the following objective:

The last right we shall mention, regards the

freedom of the press. The importance of this

consists, besides the advancement of truth, science,

XLIII; Vt. Const. 1777, Declaration of Rights, Art. XIV; Va. Bill of Rights, 1776,

§ 12.

5 See Act to Secure the Freedom of the Press (1804), 1 Conn. Pub. Stat. Laws

355 (1808); Del. Const. 1792, Art. I, § 5; Ga. Penal Code, Eighth Div., § 8 (1817),

Digest of the Laws of Ga. 364 (Prince 1822); Act of 1803, c. 54, II Md. Public

General Laws 1096 (Poe 1888); Commonwealth v. Kneeland, 37 Mass. 206, 232

(Mass. 1838); Act for the Punishment of Certain Crimes Not Capital (1791),

Laws of N.H. 253 (1792); Act Respecting Libels (1799), N.J. Rev. Laws 411

(1800); People v. Croswell, 3 Johns. Cas. 337 (N.Y. 1804); Act of 1803, c. 632, 2

Laws of N.C. 999 (1821); Pa. Const. 1790, Art. 9, § 7; R.I. Code of Laws (1647),

Proceedings of the First General Assembly and Code of Laws 44–45 (1647);

R.I. Const. 1842, Art. I, § 20; Act of 1804, 1 Laws of Vt. 366; Commonwealth v.

Morris, 3 Va. (1 Va. Cas.) 176 (Va. 1811).

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morality, and arts in general, in its diffusion of liberal

sentiments on the administration of Government, its

ready communication of thoughts between subjects,

and its consequential promotion of union among

them, whereby oppressive officers are shamed or

intimidated, into more honourable and just modes of

conducting affairs.

1 Journals of the Continental Congress 108 (1774). This

statement from the Continental Congress, as the Court said in

Roth, supports a conclusion that “[a]ll ideas having even the

slightest redeeming social importance—unorthodox ideas,

controversial ideas, even ideas hateful to the prevailing climate of

opinion—have the full protection of the guaranties, unless

excludable because they encroach upon the limited area of more

important interests.” Roth, 354 U.S. at 484. Among those

“excludable” expressions, we can only conclude, are those that

patently do not serve “the advancement of truth.” See 1 Journals

of the Continental Congress 108.

Notably absent from the historical discussion is anything

resembling a heightened requirement making it more difficult to

prosecute libel or slander directed at an official (much less a “public

figure”) rather than a private citizen. On the contrary, the accepted

consensus was that public officials could sue for libel “upon the

same footing with a private individual” because “[t]he character of

every man should be deemed equally sacred, and of consequence

entitled to equal remedy.” Tunis Wortman, A Treatise, Concerning

Political Enquiry, and the Liberty of the Press 259 (New York George

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18 LAGOA, J., Concurring 23-11270

Forman, ed., 1800); accord St. George Tucker, View of the

Constitution of the United States with Selected Writings 237–38 (Clyde

N. Wilson, ed., 1999) (1803) (“[T]he judicial courts of the respective

states are open to all persons alike, for the redress of injuries of this

nature; there, no distinction is made between one individual and

another; the farmer, and the man in authority, stand upon the same

ground: both are equally entitled to redress for any false aspersion

on their respective characters, nor is there any thing in our laws or

constitution which abridges this right.”).

From all this, I conclude, as Justice White did in Gertz, that

“[s]cant, if any, evidence exists that the First Amendment was

intended to abolish the common law of libel, at least to the extent

of depriving ordinary citizens of meaningful redress against their

defamers.” 418 U.S. at 381 (White, J., dissenting). What the

historical documents suggest is that, in its original context, the First

Amendment was intended to protect free dissemination of ideas—

all manner of ideas, particularly those out of fashion or

disfavored—but not the dissemination of lies. See, e.g., 10 Benjamin

Franklin Writings 38 (1907) (“If by the Liberty of the Press were

understood merely the Liberty of discussing the Propriety of

Public Measures and political opinions, let us have as much of it as

you please: But if it means the Liberty of affronting, calumniating,

and defaming one another, I, for my part, own myself willing to

part with my Share of it when our Legislators shall please so to

alter the Law, and shall cheerfully consent to exchange my Liberty

of Abusing others for the Privilege of not being abus’d

myself.”); Frank Luther Mott, Jefferson and the Press 14 (1943)

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(explaining that Thomas Jefferson endorsed the language of the

First Amendment as ratified only after suggesting that “[t]he

people shall not be deprived of their right to speak, to write, or

otherwise to publish anything but false facts affecting injuriously the

life, liberty or reputation of others”).

And we held onto that principle for the first two centuries of

our national existence. See, e.g., Near v. Minnesota, 283 U.S. 697, 715

(1931) (“But it is recognized that punishment for the abuse of the

liberty accorded to the press is essential to the protection of the

public, and that the common-law rules that subject the libeler to

responsibility for the public offense, as well as for the private injury,

are not abolished by the protection extended in our [state and

federal] Constitutions. The law of criminal libel rests upon that

secure foundation.” (citation omitted)).

Just a decade before Sullivan, the Supreme Court reiterated

as much, explaining that “[l]ibelous utterances not being within the

area of constitutionally protected speech, it is unnecessary, either

for us or for the State courts, to consider the issues behind the

phrase ‘clear and present danger.’” Beauharnais v. People of the State

of Ill., 343 U.S. 250, 266 (1952). But, as we know, this interpretation

of the First Amendment, true to its original meaning, fell apart

shortly thereafter.

V.

As expressed by Justice White, Sullivan and its progeny

represent “an ill-considered exercise of the power entrusted to [the]

Court.” Gertz, 418 U.S. at 370 (White, J., dissenting). The lasting

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20 LAGOA, J., Concurring 23-11270

effect of Sullivan, as anyone who ever turns on the news or opens a

social media app knows well, is that media organizations can “cast

false aspersions on public figures with near impunity,” Tah, 991 F.3d

at 254 (Silberman, J., dissenting in part), causing untold harm to

public figures and the general public alike. Jettisoning the original

meaning of the First Amendment—and centuries of common law

faithful to that meaning—has left us in an untenable place, where

by virtue of having achieved some bit of notoriety in the public

sphere, defamation victims are left with scant chance at recourse

for clear harms. But until the Supreme Court reconsiders Sullivan,

we are bound by it, and I therefore must concur.

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23-11270 WILSON, J., Concurring 1

WILSON, Circuit Judge, Concurring:

I concur with the majority but write separately to express

my reservations about suggestions that the Supreme Court should

reconsider New York Times Co. v. Sullivan, 376 U.S. 254 (1964). “Fidelity to precedent—the policy of stare decisis—is vital to the

proper exercise of the judicial function.” Citizens United v. FEC, 558

U.S. 310, 377 (2010) (Roberts, C.J., concurring). I believe that Sullivan reflects “the accumulated wisdom of judges who have previously tried to solve the same problem,” Ramos v. Louisiana, 590 U.S.

83, 115–16 (2020) (Kavanaugh, J., concurring).

To be sure, our understanding of the First Amendment

should be guided by its original meaning and heed common law

traditions. But “ambiguous historical evidence,” Gamble v. United

States, 587 U.S. 678, 691 (2019), does not justify casting aside a unanimous Supreme Court decision and nearly sixty years of settled

precedent. The “real-world consequences” and reliance interests at

stake counsel us to pump the brakes before calling to overrule Sullivan. See Ramos, 590 U.S. at 122 (Kavanaugh, J., concurring).

I.

Adherence to precedent is “a foundation stone of the rule of

law.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014).

Stare decisis is the “means by which we ensure that the law will not

merely change erratically, but will develop in a principled and intelligible fashion,” and “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.” Vasquez v. Hillery, 474 U.S. 254, 265–66 (1986); accord. Payne USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 42 of 56

2 WILSON, Jr., Concurring 23-11270

v. Tennessee, 501 U.S. 808, 827 (1991). Indeed, “the entire idea of stare

decisis is that judges do not get to reverse a decision just because

they never liked it in the first instance.” Knick v. Twp. of Scott, 588

U.S. 180, 224 (2019) (Kagan, J., dissenting).

“The Framers of our Constitution understood that the doctrine of stare decisis is part of the ‘judicial Power’ and rooted in Article III of the Constitution.” Ramos, 590 U.S. at 116 (Kavanaugh, J.,

concurring). Alexander Hamilton wrote that to “avoid an arbitrary

discretion in the courts, it is indispensable” that federal judges

“should be bound down by strict rules and precedents, which serve

to define and point out their duty in every particular case that

comes before them.” Id. (quoting The Federalist No. 78, p. 529 ( J.

Cooke ed. 1961)). Blackstone wrote that “it is an established rule to

abide by former precedents,” to “keep the scale of justice even and

steady, and not liable to waver with every new judge’s opinion.” Id.

(quoting 1 W. Blackstone, Commentaries on the Laws of England

69 (1765)).

Of course, Judges and even Justices, are fallible. Cf. Brown v.

Allen, 344 U.S. 443, 540 (1953) ( Jackson, J., concurring). And it is

especially important for the Court to correct errors in constitutional rulings, which “Congress cannot override . . . by ordinary

legislation.” Gamble, 587 U.S. at 691. But even in constitutional

cases, the Supreme Court “has always held that ‘any departure’”

from precedent “demands special justification.” Michigan, 572 U.S.

at 798 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). This is

especially true when the constitutional protections recognized by

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23-11270 WILSON, J., Concurring 3

the precedent have “become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 443 (2000). The strength of the case

for adhering to such decisions only grows in proportion to their

“antiquity.” Montejo v. Louisiana, 556 U.S. 778, 792 (2009).

In his concurring opinion in Ramos v. Louisiana, Justice Kavanaugh synthesized the Supreme Court’s “varied and somewhat

elastic stare decisis factors” into “three broad considerations” to determine what qualifies as a “special justification” or “strong

grounds” to overrule a prior constitutional decision. 590 U.S. at

121.

First, the precedent must be “egregiously wrong as a matter

of law.” Id. at 122. “A garden-variety error or disagreement does

not suffice to overrule.” Id. at 121–22. The Court examines factors

such as “the quality of the precedent’s reasoning, consistency and

coherence with other decisions, changed law, changed facts, and

workability.” Id. at 122. Second, the Court considers whether “the

prior decision caused significant negative jurisprudential or realworld consequences.” Id. This includes both “jurisprudential consequences,” such as “workability, . . . consistency and coherence

with other decisions,” and “the precedent’s real-world effects on

the citizenry.” Id. Finally, the Court examines whether “overruling

the prior decision unduly upset reliance interests.” Id. “This consideration focuses on the legitimate expectations of those who have

reasonably relied on the precedent. In conducting that inquiry, the

Court may examine a variety of reliance interests and the age of

the precedent, among other factors.” Id.

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4 WILSON, Jr., Concurring 23-11270

Using Ramos as my guide, I first inquire into “how wrong”

Sullivan is as a matter of law before turning to a “sober appraisal of

the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the

other.” Id. at 122–23 (quotation marks omitted).

A. Step One: Was Sullivan Wrongly Decided?

Before overturning a long-settled precedent like Sullivan, the

Court requires more than “just an argument that the precedent was

wrongly decided.” Halliburton Co. v. Erica P. John Fund, 573 U.S. 258,

266 (2014). The First Amendment’s history and jurisprudence tell

us Sullivan was, at the very least, not “egregiously wrong,” see Ramos, 590 U.S. at 122 (Kavanaugh, J., concurring).

In Sullivan, a unanimous Supreme Court held that the First

Amendment, as applied to the states through the Fourteenth

Amendment, limits application of state libel and defamation laws.

376 U.S. at 283. The “constitutional guarantees” of free press required “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual

malice’—that is, with knowledge that it was false or with reckless

disregard of whether it was false or not.” Id. at 279–80.

Sullivan’s “actual malice” requirement “has its counterpart

in rules previously adopted by a number of state courts and extensively reviewed by scholars for generations.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 502 (1984). The rule is premised

both on “common-law tradition” and “the unique character of the

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23-11270 WILSON, J., Concurring 5

interest” it protects. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491

U.S. 657, 685–86 (1989) (footnote omitted).

Sullivan was “widely perceived as essentially protective of

press freedoms,” and “has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions

brought by public officials and public figures.” Herbert v. Lando, 441

U.S. 153, 169 (1979). It “honored both the Court’s previous recognition that ‘libel’ is not protected by the First Amendment and its

concomitant obligation to determine the definitional contours of

that category of unprotected speech.” Lee Levine & Stephen

Wermiel, What Would Justice Brennan Say to Justice Thomas?, 34

Commn’s Law. 1, 2 (2019).

For decades after Sullivan, even as defamation plaintiffs petitioned the Court to limit or overrule the case, the Court refused.

Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82 La.

L. Rev. 81, 84 & n.18 (2021). Although it faced some academic skepticism since the 1980s, 1 a “growing movement to engineer the overruling of Sullivan” has emerged in recent years, fueled by the idea

that it represents an exercise of “judicial policymaking.” See Samantha Barbas, New York Times v. Sullivan: Perspectives from History, 30

Geo Mason L. Rev. F. 1, 2 (2023).

These calls intensified in 2019, after Justice Thomas authored an opinion concurring in the denial of certiorari in McKee v.

1 E.g., Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U. Chi.

L. Rev. 782 (1986).

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6 WILSON, Jr., Concurring 23-11270

Cosby to question Sullivan’s actual-malice requirement. 586 U.S.

1172, 1172 (2019). According to Justice Thomas, the unanimous

Sullivan Court and the decades of Supreme Court caselaw that applied it failed to make “a sustained effort to ground their holdings

in the Constitution’s original meaning.” Id. at 1175. In his view,

these rulings “broke sharply from the common law of libel, and

there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.” Id. at

1176. Rather, Sullivan “and the Court’s decisions extending it were

policy-driven decisions masquerading as constitutional law.” Id. at

1173. Justice Gorsuch later echoed this critique in Berisha v. Lawson,

141 S. Ct. 2424, 2425 (2021) (Gorsuch, J., dissenting from denial of

certiorari).

In perhaps their own form of “ideological lockstep” or “unwelcome groupthink,” others echoed this “originalist” interpretation of state libel law. E.g., Tah v. Glob. Witness Publ’g, Inc., 991 F.3d

231, 251 (D.C. Cir. 2021) (Silberman, J., dissenting). The district

court here did the same, criticizing Sullivan as “a great example of

how bad facts can contribute to the making of unnecessary law,

and why judges and Justices should not be in the business of policy

writing.” Dershowitz v. Cable News Network, Inc., 668 F. Supp. 3d

1278, 1286–87 (S.D. Fla. 2023).

But a policy argument couched in history is still a policy argument. And experience tells us that “disputed history provides

treacherous ground on which to build decisions written by judges

who are not expert at history.” Cf. McDonald v. City of Chicago, 561

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U.S. 742, 914 (2010) (Breyer, J., dissenting). See generally Schafer, supra, at 132–44 (detailing the flaws in McKee and Berisha’s historical

analysis).2

History’s flaws are especially apparent when confronting the

law of libel in the United States, which “is not now, nor ever was,

tidy.” Schafer, supra, at 97. “The founding generation and the Congresses of the Reconstruction were not of one mind when it came

to the common law of libel or the effect, if any, the First and Fourteenth Amendments had on it.” Id. “We know very little of the precise intentions of the framers and ratifiers of the speech and press

clauses of the first amendment” when it comes to defamation actions. Ollman v. Evans, 750 F.2d 970, 996 (D.C. Cir. 1984) (Bork, J.,

concurring). “But we do know that they gave into our keeping the

2 See also, e.g., Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82

La. L. Rev. 81, 150 (2021) (“The freedom of the press that Thomas and Gorsuch espouse is not an originalist one; it is a monarchist’s one, predating the

Founding and purporting to import into the First Amendment today common

law rules long ago rejected by the Founders and early courts. This approach,

however, violates Thomas’s own instruction that what matters for the purposes of an originalist inquiry is the ‘founding era understanding.’ Indeed,

Thomas’s view ignores that there was a Revolution, and that no small complaint of that Revolution was England’s abuses of prosecutions of early American printers. It also ignores everything that happened between 1789 and 1868

when the Fourteenth Amendment made the First Amendment applicable as

against the States. Thomas’s failure to deal with this history draws into question his supposed commitment to it.”); Josh Blackman, Originalism and Stare

Decisis in the Lower Courts, 13 N.Y.U. J.L. & Liberty 44, 54–55 (2019) (recognizing the Seditious Conspiracy Act provides “some originalist basis to impose a

higher bar for libel suits filed by government officials”).

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8 WILSON, Jr., Concurring 23-11270

value of preserving free expression and, in particular, the preservation of political expression, which is commonly conceded to be the

value at the core of those clauses.” Id.

The Founders rejected early attempts to “transplant the

English rule of libels on government to American soil.” See City of

Chicago v. Trib. Co., 307 Ill. 595, 603 (1923). And “the restricted rules

of the English law in respect of the freedom of the press in force

when the Constitution was adopted were never accepted by the

American colonists.” Grosjean v. Am. Press Co., 297 U.S. 233, 249

(1936). Rather, “[o]ne of the objects of the Revolution was to get

rid of the English common law on liberty of speech and of the

press.” Henry Schofield, Freedom of the Press in the United States, 9

Proc. Am. Soc. Soc’y 67, 76 (1914).

Conflicting history aside, “[i]t is ironic that an approach so

utterly dependent on tradition is so indifferent to our precedents.”

Michael H. v. Gerald D., 491 U.S. 110, 138 (1989) (Brennan, J., dissenting). The Supreme Court’s First Amendment jurisprudence “is one

of continual development, as the Constitution’s general command

that ‘Congress shall make no law . . . abridging the freedom of

speech, or of the press,’ has been applied to new circumstances requiring different adaptations of prior principles and precedents.”

Denver Area Educ. Telecommc’ns Consortium, Inc. v. FCC, 518 U.S. 727,

740 (1996). Sullivan is part of a “judicial tradition of a continuing

evolution of doctrine to serve the central purpose of the first

amendment.” Ollman, 750 F.2d at 995 (Bork, J., concurring).

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23-11270 WILSON, J., Concurring 9

The consistent, guiding principle since the Founding and

throughout our country’s history is that the First Amendment

“rests on the assumption that the widest possible dissemination of

information from diverse and antagonistic sources is essential to

the welfare of the public, that a free press is a condition of a free

society.” Associated Press v. United States, 326 U.S. 1, 20 (1945).

The First Amendment “preserve[s] an uninhibited marketplace of ideas in which truth will ultimately prevail.” Red Lion

Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). Our “profound national

commitment to the free exchange of ideas . . . demands that the

law of libel carve out an area of ‘breathing space’ so that protected

speech is not discouraged.” Harte-Hanks Commc’ns, 491 U.S. at 686.

Allowing states to punish all errors in statements about the official

conduct of public figures would be antithetical to the First Amendment, because “[w]hatever is added to the field of libel is taken

from the field of free debate.” Sullivan, 376 U.S. at 272. We must

“protect some falsehood in order to protect speech that matters.”

Gertz v. Robert Welch, Inc., 418 U.S. 323, 340–41 (1974).

Playing a key role in the marketplace, the “press serves and

was designed to serve as a powerful antidote to any abuses of

power by governmental officials and as a constitutionally chosen

means for keeping officials elected by the people responsible to all

the people whom they were selected to serve.” Mills v. Alabama, 384

U.S. 214, 219 (1966). “Suppression of the right of the press to praise

or criticize governmental agents . . . muzzles one of the very

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10 WILSON, Jr., Concurring 23-11270

agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.” Id.

What was true in 1791, 1868, and 1964 remains true today:

a libel law regime that allows public figures and officials to silence

“speech that matters,” Gertz, 418 U.S. at 340–41, absent complete

accuracy, “dampens the vigor and limits the variety of public debate” and is “inconsistent with the First and Fourteenth Amendments.” Sullivan, 376 U.S. at 279.

B. Negative Jurisprudential or Real-World Consequences

At most, the complex history of libel law shows that Sullivan’s interpretation of the First Amendment was a “garden-variety

error or disagreement” not “egregiously wrong.” See Ramos, 590

U.S. at 121–22 (Kavanaugh, J., concurring). So I move to whether

the decision “caused significant negative jurisprudential or realworld consequences.” See id. at 122. Again, the answer is no. Sullivan’s actual-malice rule—shaped by the realities of libel litigation

and refined by decades of precedent—represents a careful balance

between the central First Amendment right to free discussion

about matters of public concern and “the individual’s interest in his

reputation.” Herbert, 441 U.S. at 169; accord Monitor Patriot Co. v. Roy,

401 U.S. 265, 276 (1971).

Looking first to jurisprudential consequences, such as consistency and workability, Sullivan’s actual-malice rule allows courts

to “expeditiously weed out unmeritorious defamation suits” while

“preserv[ing] First Amendment freedoms and giv[ing] reporters,

commentators, bloggers, and tweeters (among others) the

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23-11270 WILSON, J., Concurring 11

breathing room they need to pursue the truth.” Kahl v. Bureau of

Nat’l Affs., Inc., 856 F.3d 106, 109 (D.C. Cir. 2017) (Kavanaugh, J.).

A return to the common-law defense that “the alleged libel

was true in all its factual particulars,” rather than malice, would be

nearly unworkable. See Sullivan, 376 U.S. at 279. The “difficulties of

separating fact from fiction convinced the Court in New York Times,

Butts, Gertz, and similar cases to limit liability to instances where

some degree of culpability is present in order to eliminate the risk

of undue self-censorship and the suppression of truthful material.”

Bose Corp., 466 U.S. at 513 (citation modified); see also Sullivan, 376

U.S. at 279 (citing examples). And hinging liability for public criticism on a judge or jury’s determination of what is true deviates

from the “marketplace of ideas” the First Amendment protects—

where truth depends on an idea’s competition with other ideas, not

a government censor. Jane E. Kirtley Uncommon Law: The Past, Present and Future of Libel Law in a Time of “Fake News” and “Enemies of

the American People”, 2020 U. Chi. L.F. 117, 123 (2020); see also Hustler

Mag., Inc. v. Falwell, 485 U.S. 46, 56 (1988) (“For it is a central tenet

of the First Amendment that the government must remain neutral

in the marketplace of ideas.”).

As far as “real-world effects on the citizenry,” Sullivan allowed the public and the press to criticize public officials, 376 U.S.

at 282–83, and public figures, Gertz, 418 U.S. at 351–52, and contribute to vital national dialogue without fear of unwarranted retaliation. Over the last sixty years, Sullivan’s “actual malice” requirement has consistently “ensure[d] that debate on public issues

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12 WILSON, Jr., Concurring 23-11270

remains uninhibited, robust, and wide-open,” while balancing the

individual’s interest in his reputation. Milkovich v. Lorain J. Co., 497

U.S. 1, 20 (1990) (internal quotation marks omitted).

Although today’s media landscape has changed, the interests

on both sides of Sullivan’s equation remain almost the same. On

one side, Sullivan safeguards a First Amendment right to public debate that is “not only an aspect of individual liberty—and thus a

good unto itself—but also is essential to the common quest for

truth and the vitality of society as a whole.” Falwell, 485 U.S. at 51

(quoting Bose Corp., 466 U.S. at 503–04). Placing “the burden of

proving truth upon media defendants who publish speech of public

concern deters such speech because of the fear that liability will

unjustifiably result,” and “would be antithetical to the First Amendment’s” central protections. Phila. Newspapers, Inc. v. Hepps, 475 U.S.

767, 777–78 (1986).

Constitutional safeguards that protect “the free flow of ideas

and opinions on matters of public interest and concern,” Falwell,

485 U.S. at 50, are just as critical today as they were sixty years ago.3

3 During the Civil Rights Movement, libel suits became “formidable legal

bludgeon[s]” for pro-segregation government officials “to swing at out-of-state

newspapers whose reporters cover racial incidents.” Brief of the American

Civil Liberties Union and the New York Civil Liberties Union as Amici Curiae

at 6, N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (Nos. 39 & 40). By the time

Sullivan reached the Supreme Court, national media outlets faced over $288

million in potential damages for their reporting on the Civil Rights Movement.

Samantha Barbas, New York Times v. Sullivan: Perspectives from History, 30

Geo Mason L. Rev. F. 1, 5 (2023). See generally Christopher W. Schmidt, New USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 53 of 56

23-11270 WILSON, J., Concurring 13

Public and government officials continue to threaten libel suits, not

for their common-law purpose of protecting one’s character and

image, but to threaten and silence dissenters and critics. Sullivan’s

longstanding protections are critical if the press is to continue its

function as the “constitutionally chosen means for keeping officials

elected by the people responsible to all the people whom they were

selected to serve.” Mills, 384 U.S. at 219. 4

On the other side, the concern about injuries to an individual’s reputation are mostly unchanged. “The sort of robust political

debate encouraged by the First Amendment is bound to produce

speech that is critical” of public officials or public figures. Falwell,

485 U.S. at 51. And plaintiffs who cannot show “actual malice” may

suffer some unwarranted reputational harm which cannot “easily

be repaired by counterspeech.” Id. at 52. Now, just as then, public

figures “have a more realistic opportunity to counteract false

York Times v. Sullivan and the Legal Attack on the Civil Rights Movement, 66 Ala.

L. Rev. 293 (2014).

4 American press freedoms once ranked among the broadest in the world, in

part because of Sullivan. See International Libel & Privacy Handbook xv–xvi

(Charles J. Glasser Jr. ed., 2d ed. 2009) (“In essence, the U.S. model is based on

the press-friendly moral engine that drives American media law.”). But “[a]fter

a century of gradual expansion of press rights in the United States, the country

is experiencing its first significant and prolonged decline in press freedom in

modern history.” World Press Freedom Index: United States, REPORTERS

WITHOUT BORDERS, https://rsf.org/en/country/united-states#laws-19525.

Int’l Women’s Media Found., Journalists Under Fire: U.S. Media Report Daily

Threats, Harassment and Attacks at Home 15 (2024) (documenting “surging harassment and threats against journalists” in the United States).

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14 WILSON, Jr., Concurring 23-11270

statements than private individuals normally enjoy,” and perhaps

even more so with new technology creating new “channels of effective communication.” See Gertz, 418 U.S. at 344.

Public criticism, even false criticism, “is not always a pleasant

or painless experience, but it cannot be avoided if the political arena

is to remain as vigorous and robust as the first amendment and the

nature of our polity require.” Ollman, 750 F.2d at 1002 (Bork, J.,

concurring). Two decades after Sullivan, Chief Justice Rehnquist,

writing for a unanimous Supreme Court, reiterated that a state’s

“interest in protecting public figures from emotional distress” cannot justify denying First Amendment protection. Falwell, 485 U.S.

at 50. Rather, the danger to reputation is one we have chosen to

tolerate in pursuit of “individual liberty” and “the common quest

for truth and the vitality of society as a whole.” Id. at 50–51 (quoting Bose Corp., 466 U.S. at 503–04). After all, “one of the prerogatives

of American citizenship is the right to criticize public men and

measures.” Id. at 51 (quoting Baumgartner v. United States, 322 U.S.

665, 673–74 (1944)) (alteration adopted).

The “real world” consequences of stripping away Sullivan’s

protections in our current media climate would do the opposite of

“preserve an uninhibited marketplace of ideas,” Red Lion Broad. Co.,

395 U.S. at 390, and “muzzle[] one of the very agencies the Framers

of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.” Mills, 384 U.S. at 219.

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C. Reliance Interests

Beyond Sullivan’s correctness and its real-world implications,

“the antiquity of the precedent” and the “reliance interests at

stake” counsel us to proceed with caution before calling for the

Court to overturn Sullivan. See Montejo, 556 U.S. at 792–93. Sullivan

has “become part of the fabric of American law” and been “woven

into a long line of federal and state cases.” Roy S. Gutterman, Actually . . . A Renewed Stand for The First Amendment Actual Malice Defense, 68 Syracuse L. Rev. 579, 580, 602 (2018). Its “recognition that

libel law could violate the First Amendment was the critical step

that made possible all the Court’s subsequent defamation decisions

and the many restrictions later imposed on libel law by state judges

and legislatures.” David A. Anderson, The Promises of New York

Times v. Sullivan, 20 Roger Williams U. L. Rev. 1, 23 (2015).

The “evenhanded, predictable, and consistent development

of legal principles” and “reliance on judicial decisions,” Payne, 501

U.S. at 827, is “particularly important in the area of free speech for

precisely the same reason that the actual malice standard is itself

necessary.” Harte-Hanks Commc’ns, Inc., 491 U.S. at 686. First

Amendment freedoms “are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter

their exercise almost as potently as the actual application of sanctions.” NAACP v. Button, 371 U.S. 415, 433 (1963); accord. Thomas v.

Collins, 323 U.S. 516, 529–30 (1945). “Uncertainty as to the scope of

the constitutional protection can only dissuade protected speech—

the more elusive the standard, the less protection it affords.” HarteHanks Commc’ns, Inc., 491 U.S. at 686.

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16 WILSON, Jr., Concurring 23-11270

Overruling Sullivan would be especially disruptive because

the case defines “the central meaning of the First Amendment” and

influenced “virtually all of the Supreme Court’s subsequent First

Amendment jurisprudence.” Wermiel, supra, at 2. Casting the decision aside in favor of varied, plaintiff-friendly state libel laws

would “create an inevitable, pervasive, and serious risk of chilling

protected speech pending the drawing of fine distinctions that, in

the end, would themselves be questionable.” Cf. Citizens United, 558

U.S. at 327.

II.

Out of respect for unanimous Supreme Court precedent,

and the press freedoms that played a critical role in securing the

civil rights many in this country hold dear, judges should reconsider

their calls for the Supreme Court to overrule Sullivan. “For it is hard

to overstate the value, in a country like ours, of stability in the law.”

Knick, 588 U.S. at 224 (Kagan, J., dissenting).