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.
Just who are the CNN lawyers playing checkers whilst the opponents of Sullivan are playing chess? What an awful move.
ReplyDeleteFor maybe the first time in history, I agree with Rumpole here. The only acceptable reason to waive your right to file a response at the Supreme Court would be to save expense. But that isn't plausible for a company like CNN. Instead, the waiver comes across as a smug, entitled message that Sullivan is sacrosanct and that SCOTUS would never touch it, which is naive given that even members of SCOTUS's liberal wing have questioned the expansion of the decision. The media really can't seem to get out of their own way.
DeleteLike it would have mattered one way or another. They do what they do and cnn filing am opp brief means nothing in this case.
ReplyDeleteActually it does. They need four votes to hear the case and would have voted had the brief been submitted. But now the tenor has changed and even Justice Kagan appears to be amenable.
DeleteThere are only 2 votes that matter. Roberts and Barrett. The folks who want to toss it have 4 to review. A voluntary response to the cert petition meant nothing.
ReplyDelete