Alan Dershowitz has pledged to escalate his unsuccessful defamation lawsuit against CNN to the United States Supreme Court, aiming to contest the historic 1964 New York Times v. Sullivan ruling. This bold move has the potential to revolutionize current defamation laws, much to the anticipation of Justice Clarence Thomas, should the court decide to hear the case and Dershowitz emerge victorious.

Attorney Jay Sekulow, who, like Dershowitz, played a role in defending former President Donald Trump during his initial impeachment trial concerning the Ukraine aid controversy, is now, after more than five years, representing the esteemed criminal defense attorney and Harvard Law School professor emeritus for statements made during that trial. Sekulow’s efforts are on behalf of the American Center for Law and Justice.

The petition for a writ of certiorari has been in preparation since November, when Dershowitz requested an extension from Justice Thomas to file it. Justice Thomas, who oversees cases from the 11th U.S. Circuit Court of Appeals, approved the extension. Dershowitz proceeded to submit the petition on December 29, following his earlier statements to Law&Crime in September.

In his petition, which comes after the federal district court dismissed his case and the 11th Circuit upheld that dismissal, Dershowitz argues that the Supreme Court should reconsider Times v. Sullivan. This landmark decision introduced the “actual malice” standard for defamation claims by public officials and figures.

The petition raises critical questions, such as whether the “actual malice” standard established in Sullivan—or its subsequent interpretations—should be abolished, or at least modified for private individuals who are public figures. It also questions whether the Supreme Court should revise the clear-and-convincing and burden-of-proof requirements laid out in Sullivan.

Dershowitz additionally asked the justices to resolve a circuit split, answering whether a “defendant’s systematic omission of qualifying and limiting language from a plaintiff’s recorded statement constitutes proof of actual malice” under Sullivan “sufficient to survive summary judgment, as the Second, Third, Fifth, and Ninth Circuits have held, and contrary to what the Eleventh Circuit held below.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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