Global Freedom of Expression

Berisha v. Lawson (Dissent)

Closed Contracts Expression

Key Details

  • Mode of Expression
    Books / Plays
  • Date of Decision
    July 2, 2021
  • Outcome
    Motion Denied
  • Case Number
    594 U. S. ____ (2021)
  • Region & Country
    United States, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    Defamation / Reputation
  • Tags
    Defamation, Public Figures, Disinformation, Misinformation, Actual Malice

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Case Analysis

Case Summary and Outcome

Justices Thomas and Gorsuch of the Supreme Court of United States dissented from the denial of certiorari and stated that a case involving the “actual malice doctrine”, established in the case of New York Times v. Sullivan, should be heard by the Court so that the doctrine could be reconsidered. The doctrine applies to defamation suits involving a public figure and requires the proof of actual malice on the part of a publisher when a false statement has been published. An Albanian individual had sued an American journalist for defamation after he published a book in which the individual was described as a member of the Albanian mafia. The District and Circuit Courts in Florida applied the doctrine and found in favor of the journalist. The Supreme Court refused to hear the individual’s appeal. Justice Thomas stated that there had been no justification for the Court to implement the doctrine in the Sullivan case and that First Amendment protection should be given to “public figures”. Justice Gorsuch emphasized the importance of freedom of the press and that the doctrine may have been applicable in the past but stressed that the current media landscape meant that the doctrine now encouraged the publication of falsehoods and the extension of the category of people categorized as “public figures” left too many people without legal recourse when they have been defamed.


Facts

In 2015, Guy Lawson published a book about three Miami youngsters who became international arms dealers. The book included details of the youngsters traveling to Albania and meeting Shkelzen Berisha – portrayed in the book as part of the Albanian mafia. The book was later turned into the movie, War Dogs.

Berisha sued Lawson for defamation under Florida law, arguing that he was not part of the Albanian mafia and that the sources Lawson relied on to make that claim were “flimsy” [p. 1].

The District Court held that Berisha was a public figure and as such the only question was whether Lawson, as the publisher, had acted with “actual malice”. The “actual malice” principle had been established in the Supreme Court case of New York Times v Sullivan, and requires that “public figures cannot establish libel without proving by clear and convincing evidence that the defendant acted with ‘actual malice’—that is with knowledge that the published material ‘was false or with reckless disregard of whether it was false’” [p. 1]. The Court held that Berisha had not been able to satisfy that high standard.

The Eleventh Circuit affirmed the decision of the District Court.

Berisha then appealed to the Supreme Court, seeking a reconsideration of the “actual malice” principle as applied to public figures.


Decision Overview

The Supreme Court denied certiorari meaning that the matter was not heard by the Court. Justices Thomas and Gorsuch dissented from that denial of certiorari, and would have granted certiorari. Both justices provided separate dissenting opinions. The central issue addressed by the two justices was whether the “actual malice” proof required for public figures in defamation cases should be reconsidered.

Justice Thomas referred to his dissent in McKee v. Cosby in which he had noted that the principle should be reconsidered and that there was no historical reason for the court to have introduced the requirement to prove actual malice. He noted that the Court in Sullivan had not provided sufficient explanation for introducing a new requirement “so long after the First Amendment’s ratification” [p. 2].

Justice Thomas focused on the position of public figures, and emphasized that, historically, “the common law deemed libels against public figures to be . . . more serious and injurious than ordinary libels” [p. 2]. He referred to the Gertz v. Robert Welch, Inc. case – which had justified the actual malice requirement on the basis that public figures “invite attention and comment” – and stated that this should not mean those public figures lose their right to the remedies for victims of defamatory falsehoods, and stressed that the requirement applies even when the public figure has “not voluntarily sought attention” [p. 2].

Justice Thomas also noted the “real-world effects” of the actual malice doctrine and how “[p]ublic figure or private, lies impose real harm” [p. 3]. He stated that “[i]nstead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires” [p. 3].

Justice Gorsuch emphasized the importance of the freedom of the press and that “democracy cannot function without the free exchange of ideas” [p. 1]. However, he also stressed that the right includes a duty – here, that “those exercising the freedom of the press had a responsibility to try to get the facts right—or, like anyone else, answer in tort for the injuries they caused” [p. 1]. He explained that the right to freedom of the press meant that there could be no government-imposed restraints on publication, but that did not mean that there would be no consequences for the press defaming individuals.

Justice Gorsuch also highlighted that before the Sullivan case in 1964 the jurisprudence was that all persons could receive damages when false statements were made about them. He explained that the Sullivan case introduced the doctrine that government public officials had to demonstrate actual malice in the publication of false statements and then that the Curtis Publishing Co. v. Butts case extended that to “public figures” more broadly before the Gertz case extended it to anyone who had “achieved pervasive fame or notoriety’ and those ‘limited’ public figures who ‘voluntarily injec[t]’ themselves or are ‘drawn into a particular public controversy’.” [p. 2]. Justice Gorsuch accepted that these developments were “necessary to implement the First Amendment interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” [p. 3].

However, Justice Gorsuch stated that the developments in media technology has necessitated a change in the doctrine. He noted that where in the past media publication required heavy investment, with large staff components including investigative journalists, editors and fact-checkers, this was no longer the case. Digital advancements have meant that anyone can publish anything instantaneously and Justice Gorsuch referred to a Pew Research Center study which had found that “our new media environment also facilitates the spread of disinformation” [p. 4]. He emphasized that the old press model placed value on truth and reliability whereas the new model prioritized profit, and consequently the justification for the Sullivan doctrine may no longer be relevant.

Justice Gorsuch described the Sullivan doctrine as accepting that “the publication of some false information was a necessary and acceptable cost to pay to ensure truthful statements vital to democratic self-government were not inadvertently suppressed” but that the consequences of the doctrine’s application has been that there are very few successful defamation cases brought against media defendants [p. 5]. He added that “publishing without investigation, fact-checking, or editing has become the optimal legal strategy” [p. 5] and that the Sullivan doctrine appears now to go against the goal of democratic debate by encouraging falsehoods. He added that the expansion of the definition of “public figure” has also weakened the purpose of the Sullivan doctrine (which had been limited to government public officials), and so there are more people affected by the actual malice requirement than before: “[r]ules intended to ensure a robust debate over actions taken by high public officials carrying out the public’s business increasingly seem to leave even ordinary Americans without recourse for grievous defamation” [p. 7].

Justice Gorsuch noted that a series of cases and justices had expressed concern about the continued applicability of the actual malice doctrine and stated that “the Court would profit from returning its attention” to the consideration of the doctrine [p. 7].


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

The dissenting opinion of Justice Thomas and Justice Gorsuch contracts freedom of expression by calling for a reconsideration of a long established precedent with the aim of curbing disinformation and false news, and protecting the right of reputation of the public figures.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
  • U.S., Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
  • U.S., Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)
  • U.S., McKee v. Cosby, 139 S. Ct. 675 (2019)
  • U.S., Tah v. Global Witness Publishing, No. 19-7132 (D.C. Cir. 2021).
  • U.S., Herbert v. Lando, 441 U. S. 153, 171 (1979)
  • U.S., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)
  • U.S., Lovell v. City of Griffin, 303 U.S. 444 (1938)
  • U.S., Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971)
  • U.S., Rosenblatt v. Baer, 383 U.S. 75 (1966)
  • U.S., Rosanova v. Playboy Enterprises, Inc., 580 F. 2d 859, 861 (CA5 1978)
  • U.S., Dexter v. Spear, 7 F. Cas. 624 (No. 3,867) (CC RI 1825)
  • U.S., Hibdon v. Grabowski, 195 S. W 3d 48, 59, 62 (Tenn. App. 2005)
  • U.S., Coughlin v. Westinghouse Broadcasting & Cable, Inc., 476 U. S. 1187 (1986)

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

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