CNN Challenges SCOTUS on Alan Dershowitz’s Controversial ‘Alternate’ Facts: A Legal Showdown

Renowned criminal defense attorney and law professor Alan Dershowitz has been described as “uniquely unfit” to instigate a constitutional clash over the First Amendment. According to CNN, his defamation lawsuit is destined for failure regardless of the circumstances, a sentiment they expressed to the Supreme Court on Friday.

The opposition brief submitted by CNN urged the Supreme Court to recognize Dershowitz’s primary grievance: pundits from CNN and other media outlets allegedly “misinterpreted” his defense of President Donald Trump during the 2020 Ukraine impeachment trial. CNN argued that this complaint does not constitute a valid defamation case and certainly doesn’t warrant revisiting the pivotal 1964 New York Times v. Sullivan precedent.

CNN’s legal team, from Gibson, Dunn & Crutcher LLP and Davis Wright Tremaine LLP, highlighted that several media organizations had similarly interpreted Dershowitz’s comments at the time. Furthermore, Dershowitz was invited on-air twice by CNN following his criticisms of their coverage. Consequently, the network contended that the Supreme Court should dismiss any attempt to significantly limit the freedom of the press and the public to engage in discussions about the President’s justifications for maintaining his role in office.

The brief firmly stated, “[H]e loses under any evidentiary standard because he had no evidence,” asserting that Dershowitz’s arguments present opinions and interpretations as though they were factual claims.

CNN concluded that Dershowitz could not conceal these critical weaknesses in his case.

During the impeachment trial, Sen. Ted Cruz, R-Texas, asked Dershowitz if it mattered whether there was a quid pro quo, after House Democrats 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.

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 commentary, selective editing, and quote selection knowingly or recklessly 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.”

That, he said, “falsely” portrayed him as “a constitutional scholar and intellectual who had lost his mind.”

Law&Crime has been following the case since it was filed. Most recently, Dershowitz asked the justices to grant his petition for a writ of certiorari, following back-to-back losses in district court and then before the 11th U.S. Circuit Court of Appeals.

He repeatedly cited the concurrence of U.S. Circuit Judge Barbara Lagoa, a Trump appointee who agreed that Sullivan meant the $300 million suit had to be dismissed while also offering a separate opinion saying that CNN had “simply lied” about Dershowitz on air. There was nothing to be done in light of Sullivan, Lagoa noted.

Among the questions Dershowitz subsequently presented to SCOTUS was whether the “actual malice standard established in Sullivan, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures.”

On that point, CNN responded that Dershowitz has “courted the notoriety that follows the representation of controversial clients, such as O.J. Simpson, Claus Von Bulow, and President Trump,” making him a “uniquely unfit petitioner to force a constitutional showdown over Sullivan.”

In addition, CNN said he “ignores a fatal—and glaring—vehicle problem,” namely that Florida law independently adopted the same “actual malice” standard.

“No matter what, Dershowitz loses under Florida’s parallel actual-malice standard,” CNN stated. “This Court should not even contemplate whether to modify Sullivan when the claims ‘are independently subject to an actual-malice standard as a matter of state law.’”

In parting shots, the network suggested Dershowitz’s decision to sue and appeal all the way up to SCOTUS shows he was no “hapless private citizen thrust into the public spotlight” when he defended the president of the United States in front of the nation.

“And he even treated the filing of his petition in this Court as an opportunity to rotate the public spotlight back in his direction,” the brief said. “Dershowitz’s legal arguments inhabit an alternate universe of facts.”

“In every way, Dershowitz’s position—not Sullivan—is the aberration,” CNN added, asking the justices to reject the petition once and for all.

Dershowitz has said that his petition, which included potential outcomes “short” of overturning Sullivan in its entirety, aims to “create a fairer balance.” Now the ball is in the justices’ court.