There are certain Supreme Court case names people just know. Marbury v. Madison. Brown v. Board of Education. Miranda v. Arizona. I think you can also put New York Times Co. v. Sullivan on that list. But should the case, which set the standard for defamation cases, be added to the "endangered precedent" list?
The New York Times, of all periodicals, covered the latest installment in Allen Dershowitz's defamation lawsuit against CNN here. The case, you may recall, was filed in our district, with Judge Singhal ultimately granting summary judgment to CNN. In so doing, though, Judge Singhal openly questioned the legal soundness of Sullivan, calling it “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.” On appeal, Judge Lagoa seemed to echo those sentiments, writing, “the only thing standing between Dershowitz and justice is Sullivan.”
It now looks like some of the Supreme Court justices may be open to taking a closer look at the Sullivan standard. When Dershowitz filed his cert petition, CNN waived its right to file a response, which may have been an effort to signal confidence in the continuing vitality of Sullivan. But the Supreme Court appears to have interpreted the move as whistling past the graveyard. It just ordered CNN to file a response.
Very interesting stuff. For lawyers who defend the media in defamation cases, there could be a boom in business on the horizon.
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