Last week’s double-header about the attack on Times v Sullivan, the 1964 Supreme Court decision that is supposed to protect tough journalism about public figures, started with a parable about Alan Dershowitz. Dershowitz is the famous Harvard constitutional law professor who’s represented, among others, OJ, Epstein, and Trump. He also helped write the Times v Sullivan decision, when he was a law clerk for one of the justices at the time, and forcefully defended the decision as recently as 2014. 

Now, just a decade or so later, he’s suing CNN for defamation – and in legal filings related to that case is arguing that Times v Sullivan might have to be overturned. He’s done a massive flip-flop.

We reached out to Alan Dershowitz to ask about this last week, as we were putting together the episode, and he and I ended up playing phone tag. He responded to an email with his phone number; I tried him a couple times and it went straight to voice mail; we were approaching our deadline so finally I just sent him an email with our questions asking him to respond by 6 PM on Wednesday. 6 PM came and went, so we filed the episode. Then I guess he called me around 10 PM that night and left a voice mail saying there was something wrong with his phone, I’d have to dial him twice to get through (Do Not Disturb mode?). I tried him a couple times the next day, but both times he picked up and said he couldn’t talk then he was busy. I tried to schedule a time via text but that didn’t work. Then of course when he finally called me I wasn’t available again. So he ended up just leaving his comment in my voice mail box. This was after the deadline and after we’d aired mind you, so I figured I’d share it here: 

AI transcription on this is bad, here’s what he actually said:

Hi, it's Alan Dershowitz.

We, guess we don't have a chance to talk. I just wanna make my one point. What I'm challenging is the…is who makes the decision on malice. Um, um. Some courts have held, including in my case, that the judge makes that decision, takes it away from the jury.

I think that violates the defendant's 7th Amendment rights to trial by jury. So what we're pushing for is a ruling that although malice remains a requirement for a public figure…but that um, if there's any, any evidence to support malice at all, uh, the issue goes to a jury rather than having a judge take that issue away from the jury. So that's the issue we're, we're trying to raise, and I think eventually the Supreme Court will, um, come down on that side. That's, I think, the right answer, and there's nothing in it that's inconsistent with Sullivan. Sullivan didn't decide that issue.

All right, thanks, bye.

What Dershowitz is talking about here when he says “malice” is the concept of “actual malice.” This a concept that the Supreme Court came up with in the Times v Sullivan case and has affirmed in subsequent cases. Basically, when a public figure sues for defamation, they have to prove four things. The statement about them has to be: 

1. Communicated to a third party.
2. False.
3. Harmful to their reputation
4. And here’s the part that came from Times v Sullivan: they have to show that the reporter or news outlet or whoever made the false, harmful statement did so with actual malice. Meaning: it can’t be an honest mistake, or a gray area. They have to have demonstrably not given a shit, to put it in lay terms, about the truth – or purposely lied to hurt somebody.

“Actual malice” is what Times v Sullivan is about. What Dershowitz seems to be saying in this voicemail comment is that in practice, a lot of times judges end up deciding about whether the actual malice threshold might be reached. He’s saying his goal is not to weaken that standard; just to make sure that it’s always a jury deciding it. 

Basically, he’s trying to say here that he’s arguing for a pretty nuanced change to procedure, and that it wouldn’t fundamentally alter Sullivan’s protections for journalists.

Well, a couple things. 

One: in practice, I think this change would make a big difference for journalists getting sued for defamation. The difference between being able to have a judge toss out a case early, and having to wait until you go to trial and assemble a jury to decide it is huge in terms of time and money and months – even years – of stress spent defending a case. 

And two: reading Dershowitz’s case and other things he’s said about it, I don’t come away with the impression that he is only arguing itty bitty point. 

If you look at the filings in his appeal you’ll see him arguing that the circuit court should, “encourage the Supreme Court to revisit the New York Times v. Sullivan actual malice standard.”

And that if he doesn’t succeed in his argument, “that the Sullivan line of cases should be reconsidered, reframed, and perhaps overruled.”

So I dunno. Seems like he’s gunning for Sullivan to me.

SPEECH Act To The Rescue!

Another legal story we told in these episodes was the creation of the SPEECH Act, in 2010. This is the law that protects Americans from defamation judgements in other countries that have weaker free speech protections than us. 

I mentioned that my lawyers had once used the SPEECH Act to fight off a legal threat I was facing, in England. It was from the Birmingham City Council, which had gotten wind of some information my co-reporter Hamza Syed and I had gotten a hold of that they didn’t want us to report on, and sent us a mean letter, saying that among other things we could be sued for defamation. 

Our American lawyers wrote back a badass letter detailing all the ways they would never win against us. But maybe my favorite part was about the SPEECH Act, which they put in a little footnote – a defense upon a defense upon a defense:

When I read this I went and looked the SPEECH Act up, and learned the story of Rachel Ehrenfeld and her quest to close this loophole in the First Amendment that a Saudi sheikh had attacked her through. I’ve always been very grateful to Rachel Ehrenfeld – and the members of Congress in 2010 for passing the law – and I’m so glad we were able to tell that story on the show. 

It’s scary now that all of these imperfect but still powerful protections we have for tough journalism in this country are now in the crosshairs. It’s important that we learn about them, not take them for granted, and fight to keep them, because I really do worry that if they get weakened at all – even if the only thing that happens is the actual malice decision does get moved to the jury stage – we will never get these defenses back.

Hang in there.

Brian