Thursday, April 06, 2023

Dershowitz Sees Reversal of Litigation Fortune

 By John R. Byrne:

Judge Singhal just granted summary judgment to CNN in a high-profile defamation case. The Plaintiff, Alan Dershowitz, alleged that a host of CNN anchors and commentators misconstrued statements he made to the US Senate during President Trump’s impeachment trial. 

The order candidly touches on the evolution of the news media and the state of First Amendment jurisprudence more broadly.

Some good legal trivia in the order too, including this about the Supreme Court's landmark defamation decision--New York Times Co. v. Sullivan:

“In Sullivan, an advertisement containing false information was published in the
New York Times. In total the circulation of the paper in the entire state of Alabama—
where the concerned parties’ alleged injury occurred—was 394 copies."

394! 

Bottom line: CNN’s reporters may have “spun” Dershowitz's comments but there wasn’t evidence that they spoke with actual malice, the governing standard.

Worth a read. Order excerpted below.

Dershowitz Order by John Byrne on Scribd

15 comments:

  1. Anonymous8:36 AM

    Funny how this judicial decision in a case involving the contexts of speech, journalistic standards, and political commentary reads much like a non-contextual dicta-filled political statement instead of a straightforward application of evidence (or lack thereof) to an established and binding standard. As a judicial opinion, it is less judicial and more opinion than it needed to be.

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    1. Anonymous9:20 AM

      Dershowitz was wronged. Sullivan precludes him from seeking redress. The judge was right to explain why.

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  2. Anonymous9:05 AM

    Definitely the right result. Somewhat surprised Dershowitz even filed the case. Judge is right that Sullivan is due for revisitation.

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  3. Anonymous9:32 AM

    Why is it Dershowitz experiences reversal of litigation fortune and not CNN experiences reversal of litigation fortune?

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  4. Anonymous9:34 AM

    Overruling Sullivan is on the Federalist Society list not surprising

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  5. Anonymous10:09 AM

    Will Justice Thomas sue ProPublica? Damning article.


    https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow

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  6. Anonymous12:25 PM

    They all do it….exhibit a is the fing gift shop that sells all of their swag in the lobby of the Supreme Court. Disgusting.

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  7. Anonymous12:31 PM

    Sullivan is bad law and always has been. Not because the resulting policy is bad (the policy is actually pretty damn good, and I'd vote for it in a referendum any day), but because judges do not have any business making policy determinations to begin with.

    The problem is that neither party is genuinely committed to the judicial philosophy that the constitution, as written, controls. If they were, judicial decisions on, for example, establishment clause issues that allow all sorts of religious establishment would be unconstitutional (e.g. "in god we trust" on government issued license plates, "one nation under god" codified at 4 USC section 4, giving tax breaks to religions, allowing school voucher money to be paid to religious schools, etc.). Same thing with the second amendment being a thing of the "well regulated militia." The day that a federalist society/originalist/strict constructionist judge has the sack to acknowledge those issues in an order like Judge Singhal's order (rather than parroting their distaste for the right's pet issue of abortion), that's the day that I will respect them as intellectually honest. Until then, it's all just politics disguised as juris prudence.

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  8. Anonymous12:34 PM

    Judge Singhal may indeed be correct about whether the rule announced in Times v. Sullivan is correct as a constitutional matter. But, candidly, what Judge Singhal thinks about the correctness of Times v. Sullivan is irrelevant, and drafting an opinion like this (including his personal musings on the merits and demerits of Supreme Court jurisprudence) shows remarkably bad judgment on his part. And I don't mean to pick just on Judge Singhal -- many lower-court judges in judicial opinions now, for whatever reason, feel the need to let the world know their personal opinions on Supreme Court precedent. Leave personal opinions to law reviews, articles, and speeches; in judicial opinions, focus on applying dutifully the law to the facts.

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  9. Anonymous1:32 PM

    12:34 is spot on. Just grandstanding.

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    1. Anonymous1:57 PM

      LOL. Literally the opposite of grandstanding. How is a decision that says “actual malice” gives the media too much rope going to get favorable media attention?? Probably why more opinions like this need to be written that explain why the judges have to rule the way they do—following the law—even if the law is bad.

      grandstanding
      /ˈɡran(d)ˌstandiNG/

      noun

      the action of behaving in a showy or ostentatious manner in an attempt to attract favorable attention from spectators or the media.

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  10. Anonymous3:43 PM

    Attracting favorable attention from FedSoc.

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  11. Anonymous10:38 AM

    Thomas financial disclosure form through this


    https://www.courtlistener.com/financial-disclosures/

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  12. I agree with 343

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    1. Anonymous10:10 PM

      True. The opinion says judges should say what the law is, not what it should be, and says judges should follow the law, not be legislators, and that’s pretty much what FedSoc stands for. I guess that’s bad huh?

      Delete