USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 1 of 56

FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11270
____________________

ALAN M. DERSHOWITZ,
Plaintiff-Appellant,
versus

CABLE NEWS NETWORK, INC.,

Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-61872-AHS
____________________

Before GRANT, LAGOA, and WILSON, Circuit Judges.

GRANT, Circuit Judge:
While representing President Donald J. Trump in
impeachment proceedings before the Senate, law professor Alan
Dershowitz gave a statement about the scope of impeachable
offenses. That statement proved controversial, with many
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 2 of 56

2 Opinion of the Court 23-11270

reporters and commentators characterizing it as out of bounds.

Dershowitz now claims that CNN in particular, along with its on-
air personalities, defamed him—intentionally misrepresenting his
comments to tarnish his reputation.
For a public figure like Dershowitz to prevail, defamation
law has long required proof of a speaker’s actual malice: knowledge
of or reckless disregard for the falsity of a statement. But here, the
available evidence points to the reporters’ sincere—if mistaken or
even overwrought—belief in the truth of their accusations.
Dershowitz has presented no evidence that shows otherwise. We
therefore affirm the district court’s order granting summary
judgment to CNN.
I.
Alan Dershowitz is a well-known professor emeritus at
Harvard Law School. He is also a practicing criminal defense
lawyer who made a name for himself representing prominent
figures in some of the most infamous criminal trials in recent
memory—O.J. Simpson and Jeffrey Epstein to name two. As
Dershowitz admits, he has welcomed the notoriety that has
followed.
The dispute here arises out of his representation of another
household name—President Donald Trump. Dershowitz
represented Trump in January 2020 during his first impeachment
trial. In that role he spoke twice on the Senate floor, first giving an
opening statement on January 27 and then returning for questions
two days later.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 3 of 56

23-11270 Opinion of the Court 3

Dershowitz’s response to one of those questions sparked

this dispute. Senator Ted Cruz asked: “As a matter of law, does it
matter if there was a quid pro quo? Is it true that quid pro quos are
often used in foreign policy?” Selections from Dershowitz’s
remarks are excerpted below, with the entirety in the Appendix.
The only thing that would make a quid pro quo
unlawful is if the quo were in some way illegal.

Now, we talked about motive. There are three

possible motives that a political figure can have . . . the
second is in his own political interest . . . . I want to
focus on the second one for just one moment.

Every public official whom I know believes that his

election is in the public interest. Mostly, you are right.
Your election is in the public interest. If a President
does something which he believes will help him get
elected—in the public interest—that cannot be the
kind of quid pro quo that results in impeachment. . . .

[I]t cannot be a corrupt motive if you have a mixed

motive that partially involves the national interest,
partially involves electoral, and does not involve
personal pecuniary interest. . . .

[A] complex middle case is: I want to be elected. I

think I am a great President. I think I am the greatest
President there ever was, and if I am not elected, the
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 4 of 56

4 Opinion of the Court 23-11270

national interest will suffer greatly. That cannot be

[an impeachable offense].

A swift reaction followed in the news and on social media.

Just moments after Dershowitz’s remarks, the Washington Post’s
live-blog coverage of the impeachment trial featured a bracing
headline: “Dershowitz argues that a president is immune if he
views his reelection as in the public interest.” Many Twitter users
reacted strongly as well. 1 One was Joe Lockhart, a CNN
contributor, who posted that Dershowitz’s argument was “crazy”
and “corrupt.” Paul Begala, an opinion columnist at CNN, had a
similar reaction, tweeting that Dershowitz’s statement was “[a]kin
to Nixon telling David Frost, ‘If the President does it, it isn’t illegal.’
Only this time it’s ‘If the President thinks it will help his re-election,
and he thinks his re-elections [sic] helps the country, it isn’t
illegal.’” 2
As for CNN itself, reporting about Dershowitz’s statement
began about twenty minutes after it took place, when a newsletter
was sent out with a headline reading “Dershowitz argues that

1 Since this suit began, Twitter has merged into X Corp. and the platform now
goes by the name “X.” Because the platform was still Twitter when these
events took place, we will proceed with that name. See Murthy v. Missouri, 144
S. Ct. 1972, 1982 n.1 (2024).
2Quotations contained in the parties’ filings have sometimes included minor
and nonmaterial alterations to the content of the original sources. Here and
throughout, we have directly quoted the sources underlying the claims in this
case.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 5 of 56

23-11270 Opinion of the Court 5

reelection of any politician is in the national interest, therefore as a

motivation can’t be impeachable.” Within half an hour, a different
headline was published on CNN’s website: “Alan Dershowitz
argues presidential quid pro quos aimed at reelection are not
impeachable.”
That night and through the next morning, several of CNN’s
broadcasts and publications criticized Dershowitz and his
statement. The critics included Anderson Cooper, who on his
online show “Anderson Cooper Full Circle” said of Dershowitz’s
statement:
He’s essentially saying any politician, because it’s so
important that they get elected . . . that they decide
that it’s really important for everybody that they are
elected, umm, they can do essentially whatever they
want in order to get elected because it’s somehow in
the public interest.

And Begala wrote that “[t]he Dershowitz Doctrine would make

presidents immune from every criminal act.” The Appendix
includes other examples—criticism of Dershowitz’s comments was
widespread at CNN.
Elsewhere too: Business Insider published an article titled
“Trump lawyer Alan Dershowitz argues Trump can do whatever
he wants to get reelected if he believes another term is in the public
interest.” MSNBC published a blog post titled “Dershowitz shocks
with argument about Trump, political interests,” in which the
author called his statement “crazypants bonkers.” And so on.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 6 of 56

6 Opinion of the Court 23-11270

Dershowitz, unsurprisingly, was displeased with the

coverage. After he complained on Twitter that the media had
mischaracterized and distorted his statements, CNN allowed him
to go on air twice to explain his position. He participated in
interviews with CNN anchors Wolf Blitzer and Chris Cuomo on
January 30 and 31, respectively.
Unsatisfied, Dershowitz sued CNN for defamation, alleging
that the network had intentionally omitted key parts of his
statement and perpetrated “a deliberate scheme to defraud its own
audience” at his expense. The district court granted CNN’s motion
for summary judgment, reasoning that Dershowitz could not
establish that CNN had acted with actual malice.
II.
This Court reviews the district court’s grant of summary
judgment de novo, drawing “all reasonable inferences in the light
most favorable to the nonmoving party.” Walker v. Life Ins. Co. of N.
Am., 59 F.4th 1176, 1185 (11th Cir. 2023) (quotation omitted). In
defamation cases like this one, “the appropriate summary
judgment question will be whether the evidence in the record
could support a reasonable jury finding either that the plaintiff has
shown actual malice by clear and convincing evidence or that the
plaintiff has not.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–
56 (1986).
III.
Florida law, which we apply here, requires five elements for
a defamation claim: (1) publication; (2) falsity; (3) “knowledge or
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 7 of 56

23-11270 Opinion of the Court 7

reckless disregard as to the falsity on a matter concerning a public

official”; (4) actual damages; and (5) defamatory content. Turner v.
Wells, 879 F.3d 1254, 1262 (11th Cir. 2018).
The third element resolves this case. The concept of actual
malice was incorporated into constitutional law in New York Times
Co. v. Sullivan, where the Supreme Court considered First
Amendment limits on state-tort defamation liability for public
officials. 376 U.S. 254, 256, 279–80 (1964). Public figures, the Court
said, cannot recover damages for defamation unless they prove
that an untrue statement was made “with knowledge that it was
false or with reckless disregard of whether it was false or not.” Id.
at 279–80. That is, “actual malice.” Id. at 280. Florida has since
implemented that same standard as a matter of state law. See Jews
for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).
A showing of actual malice requires “sufficient evidence to
permit the conclusion that the defendant in fact entertained serious
doubts as to the truth of his publication,” or that he “acted with a
high degree of awareness of probable falsity.” St. Amant v.
Thompson, 390 U.S. 727, 731 (1968); Masson v. New Yorker Mag., Inc.,
501 U.S. 496, 510 (1991) (alteration adopted and quotation
omitted). “Mere negligence” is not enough. Masson, 501 U.S. at
510. Instead, the speaker’s conduct must rise to the level of
recklessness. Nor should actual malice be confused with “evil
intent or a motive arising from spite or ill will.” Id. Speakers’
feelings about their subjects are irrelevant—all that matters are the
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 8 of 56

8 Opinion of the Court 23-11270

speakers’ subjective beliefs about the truth of their own statements.

Turner, 879 F.3d at 1273.
Dershowitz, who no one disputes is a public figure, has
presented no evidence that CNN’s commentators or producers
acted with actual malice. To begin, CNN has offered unrefuted
evidence that its commentators believed in the truth of their
statements about Dershowitz; all of the journalists testified that
they believed their statements were fair and accurate. And
Dershowitz did not counter that evidence. Instead, he repeated a
boilerplate objection that the testimony was “scripted and self-
serving.” Probably so. But that does not render it non-probative,
and in the absence of contrary evidence, questioning the witnesses’
credibility is not enough to create a factual dispute. See Penley v.
Eslinger, 605 F.3d 843, 853 (11th Cir. 2010).
Dershowitz next points to a series of internal emails and
phone calls at CNN, arguing that these show the network and its
commentators collaborating to deceive their viewers and damage
his reputation. For one, right after Dershowitz’s statement a CNN
correspondent emailed then–CNN President Jeff Zucker that
Dershowitz had “gone crazy.” “Yup,” Zucker replied, “Him and
Lindsay [sic] Graham.” And later that afternoon, Zucker held a
conference call with several producers, executives, and “news
gatherers.” One producer summarized that “very brief” meeting’s
takeaway as “Trump legal team making argument that a President
is King & can do whatever he wants.” Another producer echoed
that characterization.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 9 of 56

23-11270 Opinion of the Court 9

These communications suggest not conspiracy but sincerity,

however misplaced. To start, it appears that none of the
commentators who Dershowitz says defamed him participated in
Zucker’s conference call. And though Dershowitz argues that the
emails reveal “marching orders about how the story should be
spun,” the emails themselves do not support that contention; they
contain characterizations of Dershowitz’s remarks, but no
directives or orders. If anything, the communications tend to
support CNN’s position that the relevant speakers believed in the
truth of their reporting.
What’s more, the commentators all testified that they
reached their conclusions about the newsworthiness and
interpretation of Dershowitz’s statement independently of any
direction from Zucker or other leaders at CNN. Again, Dershowitz
disputes this testimony as “scripted and self-serving,” but without
any evidence his objection cannot move the needle. And at least
two commentators—Joe Lockhart and Paul Begala—tweeted
critically about Dershowitz’s statement while he was still speaking
or shortly after he concluded, refuting any contention that their
opinions were formed a few hours later at Zucker’s direction.
Dershowitz also contends that the similarity between the
reporting of CNN’s commentators is evidence that they “colluded
with each other and CNN staff to smear Dershowitz, whom they
all hated for sticking to his principles and defending Trump.”
Dershowitz’s assessment of the CNN commentators’ feelings
about him may well be accurate—but it is also irrelevant. As we
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 10 of 56

10 Opinion of the Court 23-11270

have explained, the question is not whether they disliked

Dershowitz, Trump, or both; it is whether they knew their
statements were false. See Masson, 501 U.S. at 510. Again, all of the
commentators testified that they believed their statements were
true, and Dershowitz offers no evidence to contradict that
testimony. The fact that the CNN commentators all presented
similar interpretations of Dershowitz’s statements (as did many
other news outlets at the time) speaks to ideological lockstep, not
deliberate misrepresentation. Groupthink, however unwelcome,
is not the same thing as actual malice.
In a final effort, Dershowitz points to two out-of-circuit
cases that he says are highly analogous, but neither comparison
holds water. The first is Schiavone Construction Co. v. Time, Inc., in
which the Third Circuit concluded that a magazine’s decision to
deliberately ignore exculpatory evidence was enough to show
actual malice. 847 F.2d 1069, 1092 (3d Cir. 1988). Dershowitz
contends that his case is just like Schiavone—stronger, even—
because CNN “omitted key portions of what [he] said to make it
sound like he said the precise opposite.” But that’s not so. CNN
aired the full video of Dershowitz’s comments, and also invited
him on air (multiple times) to clarify his position. And unlike
Schiavone, we see no evidence here that the network intentionally
hid information that would have proven the challenged claims
untrue.
The second case Dershowitz offers is Goldwater v. Ginzburg,
414 F.2d 324 (2d Cir. 1969). There, the authors of an article about
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 11 of 56

23-11270 Opinion of the Court 11

Senator Barry Goldwater had predetermined their message:

“Goldwater is so belligerent, suspicious, hot-tempered, and rigid
because he has deep-seated doubts about his masculinity.” Id. at
329. As research progressed, the authors ignored materials except
those that were derogatory of Goldwater—even when
complimentary statements expressly qualified the derogatory ones.
Id. The authors also conducted a sham poll of psychiatrists, the
result of which—of course—was highly critical of Goldwater. Id.
at 329–32. The Second Circuit upheld a jury verdict in favor of
Goldwater’s defamation claim. Id. at 328. Dershowitz, unlike
Goldwater, has offered no extrinsic evidence to show that the
commentators at CNN acted without regard for the truth of their
statements with the express purpose of destroying his reputation.
Nor has he shown that leaders at CNN instructed them to report
in a particular way as part of a scheme against him.
A better comparator than the ones Dershowitz proposes is
this Court’s recent decision in Project Veritas v. Cable News Network,
Inc., 121 F.4th 1267 (11th Cir. 2024). Anchors for CNN (also the
defendant there) incorrectly reported that an investigative
journalistic organization had been suspended from Twitter for
spreading misinformation when the real violation was that it had
allegedly posted private information.3 Id. at 1271–79, 1283–84. But
there, unlike here, the plaintiff offered ample evidence of actual

3 That, too, was flimsy because the “private information” was a house number

in the background of a video. Project Veritas, 121 F.4th at 1272, 1283.

USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 12 of 56

12 Opinion of the Court 23-11270

malice, showing that the anchors had plenty of reasons to doubt

what they reported. Id. at 1283–84.
To start, four days earlier, an article published on CNN’s
website had discussed the true cause for the suspension. Id. at 1272,
1283–84. And one CNN anchor who later echoed the
misinformation claim had already reported that sharing of private
information led to the suspension. Id. By relying on these
contradictions in its complaint, the plaintiff had “shouldered its
heavy burden” of alleging actual malice. Id. at 1283 (alteration
adopted and quotation omitted). Here, in contrast, Dershowitz has
offered no contradiction or other evidence that CNN’s
commentators doubted the truth of what they reported.
* * *
In his zealous and highly scrutinized representation,
Dershowitz made a spontaneous series of remarks before Congress
that, he says, were misinterpreted by pundits. But even if those
commentators did report incorrectly on Dershowitz’s statements,
he has offered no evidence that they did so intentionally. If
anything, the evidence shows that they believed in the truth of
their reporting, and that they formed their opinions independently.
Without evidence of actual malice Dershowitz’s defamation claim
cannot go forward, so we AFFIRM the district court’s grant of
summary judgment to CNN.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 13 of 56

23-11270 Opinion of the Court 13

Appendix
Dershowitz Statement:
Yesterday, I had the privilege of attending the rolling-
out of a peace plan by the President of the United
States regarding the Israel-Palestine conflict, and I
offered you a hypothetical the other day: What if a
Democratic President were to be elected and
Congress were to authorize much money to either
Israel or the Palestinians and the Democratic
President were to say to Israel “No; I am going to
withhold this money unless you stop all settlement
growth” or to the Palestinians “I will withhold the
money Congress authorized to you unless you stop
paying terrorists,[”] and the President said “Quid pro
quo. If you don’t do it, you don’t get the money. If
you do it, you get the money”? There is no one in this
Chamber who would regard that as in any way
unlawful. The only thing that would make a quid pro
quo unlawful is if the quo were in some way illegal.

Now, we talked about motive. There are three

possible motives that a political figure can have: One,
a motive in the public interest, and the Israel
argument would be in the public interest; the second
is in his own political interest; and the third, which
hasn’t been mentioned, would be in his own financial
interest, his own pure financial interest, just putting
money in the bank. I want to focus on the second one
for just one moment.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 14 of 56

14 Opinion of the Court 23-11270

Every public official whom I know believes that his

election is in the public interest. Mostly, you are right.
Your election is in the public interest. If a President
does something which he believes will help him get
elected—in the public interest—that cannot be the
kind of quid pro quo that results in impeachment.

I quoted President Lincoln, when President Lincoln

told General Sherman to let the troops go to Indiana
so that they could vote for the Republican Party. Let’s
assume the President was running at that point and it
was in his electoral interests to have these soldiers put
at risk the lives of many, many other soldiers who
would be left without their company. Would that be
an unlawful quid pro quo? No, because the President,
A, believed it was in the national interest, but B, he
believed that his own election was essential to victory
in the Civil War. Every President believes that. That
is why it is so dangerous to try to psychoanalyze the
President, to try to get into the intricacies of the
human mind.

Everybody has mixed motives, and for there to be a

constitutional impeachment based on mixed motives
would permit almost any President to be impeached.

How many Presidents have made foreign policy

decisions after checking with their political advisers
and their pollsters? If you are just acting in the
national interest, why do you need pollsters? Why do
you need political advisers? Just do what is best for
the country. But if you want to balance what is in the
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 15 of 56

23-11270 Opinion of the Court 15

public interest with what is in your party’s electoral

interest and your own electoral interest, it is
impossible to discern how much weight is given to
one or the other.

Now, we may argue that it is not in the national

interest for a particular President to get reelected or
for a particular Senator or Member of Congress—and
maybe we are right; it is not in the national interest
for everybody who is running to be elected—but for
it to be impeachable, you would have to discern that
he or she made a decision solely on the basis of, as the
House managers put it, corrupt motives, and it
cannot be a corrupt motive if you have a mixed
motive that partially involves the national interest,
partially involves electoral, and does not involve
personal pecuniary interest.

The House managers do not allege that this decision,

this quid pro quo, as they call it—and the question is
based on the hypothesis there was a quid pro quo. I
am not attacking the facts. They never allege that it
was based on pure financial reasons. It would be a
much harder case.

If a hypothetical President of the United States said

to a hypothetical leader of a foreign country: Unless
you build a hotel with my name on it and unless you
give me a million-dollar kickback, I will withhold the
funds. That is an easy case. That is purely corrupt
and in the purely private interest.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 16 of 56

16 Opinion of the Court 23-11270

But a complex middle case is: I want to be elected. I

think I am a great President. I think I am the greatest
President there ever was, and if I am not elected, the
national interest will suffer greatly. That cannot be
[an impeachable offense].
166 Cong. Rec. S650–51 (daily ed. Jan. 29, 2020) (statement
of Alan Dershowitz).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 17 of 56

23-11270 Opinion of the Court 17

CNN Commentary:

He’s essentially saying any politician, because it’s so

important that they get elected . . . that they decide
that it’s really important for everybody that they are
elected, umm, they can do essentially whatever they
want in order to get elected because it’s somehow in
the public interest.
Anderson Cooper, Anderson Cooper Full Circle (CNN online
broadcast, aired Jan. 29, 2020, at 6:34 p.m.).

This view of the executive, the executive power that

Dershowitz basically announced today, would make
the President a king. It would put the President
beyond the rule of law, and . . . you and I are talking
about a quid pro quo here of exchanging, withholding
military aid, but we could think of a lot of other things
that there’s no version, you know, could you kill your
opponent? Could you, you know, leak dirt on
someone? There’s countless[—]there’s no limit to
basically how badly behaved people could be, and
they could actually commit crimes which we know,
you know, Dershowitz is essentially saying it doesn’t
matter what the quid pro quo is as long as you think
you should be elected.
Anne Milgram, Anderson Cooper Full Circle (CNN online broadcast,
aired Jan. 29, 2020, at 6:35 p.m.).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 18 of 56

18 Opinion of the Court 23-11270

Having worked in about a dozen campaigns, there is

always the sense that, boy, if we win, it’s better for
the country. But that doesn’t give you license to
commit crimes or to do things that are unethical. So,
it was absurd. And what I thought when I was
watching was this is un-American. This is what you
hear from Stalin. This is what you hear from
Mussolini, what you hear from authori—, from
Hitler, from all the authoritarian people who
rationalized, uhh you know, in some cases genocide,
based on what was in the public interest.
Joe Lockhart, Erin Burnett OutFront (CNN television
broadcast, aired Jan. 29, 2020, at 7:11 p.m.).

I did not go to Harvard Law, but I did go to the

University of Texas School of Law, where I studied
criminal law and constitutional law, but never
dreamed a legendary legal mind would set them both
ablaze on the Senate floor.

The Dershowitz Doctrine would make presidents

immune from every criminal act, so long as they
could plausibly claim they did it to boost their re-
election effort. Campaign finance laws: out the
window. Bribery statutes: gone. Extortion: no more.
This is Donald Trump’s fondest figurative dream: to
be able to shoot someone on Fifth Avenue and get
away with it.
Paul Begala, Presenting the Ludicrous ‘Dershowitz Doctrine,’ (CNN
online commentary, posted Jan. 29, 2020, at 9:11 p.m.).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 19 of 56

23-11270 Opinion of the Court 19

The President’s defense team [Dershowitz] seems to

be redefining the powers of the President, redefining
them towards infinity. . . . If you look at what he says
there it blows your mind. He says if a President is
running for re-election because he thinks getting
elected will help America, he can do anything,
anything. And that redefines the presidency and,
frankly, redefines America.
John Berman, New Day (CNN television broadcast, aired Jan. 30,
2020, at 6:17 a.m.).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 21 of 56

23-11270 LAGOA, J., Concurring 1

LAGOA, Circuit Judge, concurring:

I concur with the majority because, under New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), we are obliged to hold public-
figure defamation plaintiffs to the actual-malice standard—a
standard that “has no relation to the text, history, or structure of the
Constitution.” Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 251
(D.C. Cir. 2021) (Silberman, J., dissenting in part). I write separately
to explain my view of the harm Sullivan has caused in our First
Amendment jurisprudence.
I.
As a preliminary matter, there can be little dispute that CNN
“defamed” Alan Dershowitz under any common understanding of
that term. CNN, through its various writers and anchors,
repeatedly misrepresented statements that Dershowitz made on
the floor of the Senate—that is, statements whose accuracy could
easily be verified against the Senate transcript and video footage,
and which CNN’s employees all could have watched live. In some
instances, they blurred the line between fact and commentary, and
in others, they simply lied about what Dershowitz had said. And—
though damages were not ultimately tested at trial—Dershowitz
offered evidence at the summary-judgment stage to show that he
was harmed as a result because news outlets he finds more
desirable stopped inviting him to speak after the CNN coverage,
and he was left with access only to platforms he found less
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 22 of 56

2 LAGOA, J., Concurring 23-11270

desirable. All of this is to say, I agree with the district court that the
only thing standing between Dershowitz and justice is Sullivan.
Sullivan and its progeny are policy-driven decisions dressed
up as constitutional law, and they find little—if any—support in our
history.1 At common law, when the First and Fourteenth
Amendments were ratified, public figures asserting libel claims
were not held to any sort of heightened standard. McKee v. Cosby,
586 U.S. 1172, 1176–77 (2019) (Thomas, J., concurring in denial of
certiorari). From the Founding until Sullivan, defamation and libel
laws were “almost exclusively the business of state courts and
legislatures,” and “[u]nder the then prevailing state libel law, the
defamed individual had only to prove a false written publication
that subjected him to hatred, contempt, or ridicule.” Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 765 (1985)
(White, J., concurring in judgment). Truth was a defense, as it is
now, but “general injury to reputation” was presumed and
additional showings were required only for special and punitive
damages. See id.
Indeed, prior to Sullivan, instead of heightening the standard
a plaintiff had to meet in defamation actions, we “deemed libels
against public figures to be, if anything, more serious and injurious

1 As the district court observed in the summary judgment order below, Sulli-
van is “a great example of how bad facts can contribute to the making of un-
necessary law, and why judges and Justices should not be in the business of
policy writing.” Dershowitz v. Cable News Network, Inc., 668 F. Supp. 3d 1278,
1286 (S.D. Fla. 2023).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 23 of 56

23-11270 LAGOA, J., Concurring 3

than ordinary libels.” McKee, 586 U.S. at 1177 (Thomas, J.,

concurring in denial of certiorari). Blackstone, for example,
defined libel as “malicious defamation[] of any person, and
especially a magistrate, made public by either printing, writing,
signs, or pictures, in order to provoke him to wrath, or expose him
to public hatred, contempt, and ridicule.” 4 William Blackstone,
Commentaries *150. And—far from endorsing greater skepticism
of public-figure defamation claims—Blackstone observed that
“[w]ords also tending to scandalize a magistrate, or a person in
public trust, are reputed more highly injurious than when spoken
of a private man.” 3 Blackstone *124. In 1808, the Supreme Judicial
Court of Massachusetts explained why this was so, noting that “the
publication of falsehood and calumny against public officers, or
candidates for public offices, is an offence most dangerous to the
people, and deserves punishment, because the people may be
deceived, and reject the best citizens, to their great injury, and it
may be to the loss of their liberties.” Commonwealth v. Clap, 4 Mass.
(1 Tyng) 163, 169–70 (Mass. 1808); see also, e.g., Nev. State J. Publ’g
Co. v. Henderson, 294 F. 60, 63 (9th Cir. 1923) (affirming the propriety
of a jury instruction that included, in part, the admonition that
“[n]either the newspaper nor the citizen may with impunity falsely
charge the candidate or the public officer with specific acts of
criminality or shameful misconduct”). Justice Story, riding circuit
in Rhode Island, declared it “as plain and well settled as any
doctrine of the law” that, as to libel, “[t]he liberty of speech, or of
the press, has nothing to do with this subject. They are not
endangered by the punishment of libellous publications. The
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 24 of 56

4 LAGOA, J., Concurring 23-11270

liberty of speech and the liberty of the press do not authorize

malicious and injurious defamation.” Dexter v. Spear, 7 F. Cas. 624,
624 (C.C.D. R.I. 1825) (No. 3867).
II.
Sullivan, however, upended this “plain and well settled”
model and took “the first major step in what proved to be a
seemingly irreversible process of constitutionalizing the entire law
of libel and slander.” Dun & Bradstreet, 472 U.S. at 766 (White, J.,
concurring in judgment). In Sullivan, the Court usurped control
over this field of speech-related torts and invented “a federal rule
that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he
proves that the statement was made with ‘actual malice’—that is,
with knowledge that it was false or with reckless disregard of
whether it was false or not.” 367 U.S. at 279–80. Three years later,
this same rule was extended to “public figures” in addition to public
officials. See Dun & Bradstreet, 472 U.S. at 766 (White, J., concurring
in judgment) (citing Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155
(1967)). Certain members of the Court attempted to extend this
principle even further. In Rosenbloom v. Metromedia, Inc., 403 U.S. 29
(1971), for example, at least three Justices would have stretched
Sullivan to apply to private plaintiffs, imposing an across-the-board
actual-malice standard. See Dun & Bradstreet, 472 U.S. at 766
(White, J., concurring in judgment) (citing Rosenbloom, 403 U.S. at
52–57). Fortunately for private plaintiffs, the authoring Justices
failed to secure a majority vote as to that point. Three years later,
however, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 25 of 56

23-11270 LAGOA, J., Concurring 5

held for the first time that falsity and harm were not enough, and
even private plaintiffs must show some sort of “fault,” negligence
at the least, to recover for defamation. See Dun & Bradstreet, 472
U.S. at 766 (White, J., concurring in judgment) (citing Gertz, 418
U.S. at 347, 350). And, even with that proof of culpable fault,
damages were not presumed but had to be proven. See id. (citing
Gertz, 418 U.S. at 349). Finally, Gertz established that no plaintiff
could recover punitive damages for defamation without showing
Sullivan-style malice. See id. (citing Gertz, 418 U.S. at 350). With
this series of cases—Sullivan, Curtis, Rosenbloom, and Gertz—one
generation of the Supreme Court succeeded in imposing federal
constitutional limitations (seemingly untethered to the
Constitution’s original meaning) on all defamation claims brought
by all manner of plaintiffs.
Justice White recognized the ill-fated trajectory of this line
of cases after originally joining the majority in Sullivan. In his
concurrence in Dun & Bradstreet, Justice White described his
epiphany as follows:
I joined the judgment and opinion in New York
Times. I also joined later decisions extending the New
York Times standard to other situations. But I came to
have increasing doubts about the soundness of the
Court’s approach and about some of the assumptions
underlying it. I could not join the plurality opinion
in Rosenbloom, and I dissented in Gertz, asserting that
the common-law remedies should be retained for
private plaintiffs. I remain convinced that Gertz was
erroneously decided. I have also become convinced
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 26 of 56

6 LAGOA, J., Concurring 23-11270

that the Court struck an improvident balance in

the New York Times case between the public’s interest
in being fully informed about public officials and
public affairs and the competing interest of those who
have been defamed in vindicating their reputation.
472 U.S. at 767 (White, J., concurring in judgment). In the
explanation that followed, Justice White elaborated on the central
problem in Sullivan: A people who govern themselves, as the
Founders intended us to do, are entitled to adequate information
about their government and their representatives, and that essential
flow of information warrants First Amendment protection; but
protecting lies—by insulating those who spread them behind an
iron barrier, to be breached only by a showing of actual malice—
does nothing to support an informed populus and, instead, has the
contrary effect of leaving lies uncorrected. See id. at 767–69; see also
id. at 769 (“Also, by leaving the lie uncorrected, the New York Times
rule plainly leaves the public official without a remedy for the
damage to his reputation. Yet the Court has observed that the
individual’s right to the protection of his own good name is a basic
consideration of our constitutional system, reflecting ‘“our basic
concept of the essential dignity and worth of every human being—
a concept at the root of any decent system of ordered liberty.”’”
(quoting Gertz, 418 U.S. at 341)).
As the Court concluded in Gertz, “there is no constitutional
value in false statements of fact. Neither the intentional lie nor the
careless error materially advances society’s interest in ‘uninhibited,
robust, and wide-open’ debate on public issues.” 418 U.S. at 340.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 27 of 56

23-11270 LAGOA, J., Concurring 7

But that is precisely Sullivan’s effect. Under the actual-malice

standard, the public’s “only chance of being accurately informed is
measured by the public [figure’s] ability himself to counter the lie,
unaided by the courts. That is a decidedly weak reed to depend on
for the vindication of First Amendment interests.” Dun &
Bradstreet, 472 U.S. at 768–69 (White, J., concurring in judgment);
see also Rosenbloom, 403 U.S. at 46 (“While the argument that public
figures need less protection because they can command media
attention to counter criticism may be true for some very prominent
people, even then it is the rare case where the denial overtakes the
original charge. Denials, retractions, and corrections are not ‘hot’
news, and rarely receive the prominence of the original story.”);
Gertz, 418 U.S. at 370 (White, J., dissenting) (“As I see it, there are
wholly insufficient grounds for scuttling the libel laws of the States
in such a wholesale fashion, to say nothing of deprecating the
reputation interest of ordinary citizens and rendering them
powerless to protect themselves.”).
Quite the journey we have taken from Sullivan’s attempt to
protect the public’s interest in being fully informed on matters of
public import. But that, in fact, precisely identifies the error at the
heart of Sullivan: In “federaliz[ing] major aspects of libel law by
declaring unconstitutional in important respects the prevailing
defamation law in all or most of the 50 States,” Gertz, 418 U.S. at
370 (White, J., dissenting), the Court “made little effort to ground
[its] holdings in the original meaning of the Constitution,” McKee,
586 U.S. at 1173 (Thomas, J., concurring in denial of certiorari). As
Justice Thomas pointedly observed in McKee, in its attempt to strike
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 28 of 56

8 LAGOA, J., Concurring 23-11270

a balance between “the law of defamation and the freedoms of

speech and press protected by the First Amendment,” Gertz, 418
U.S. at 355 (Douglas, J., dissenting), the Sullivan Court consulted a
wide variety of sources: “general proposition[s]” about the value
of free speech and the inevitability of false statements, see Sullivan,
376 U.S., at 269–72 & n.13; judicial decisions involving criminal
contempt and official immunity, id. at 272–73, 282–83; public
responses to the Sedition Act of 1798, id. at 273–77; comparisons
of civil libel damages to criminal fines, id. at 277–78; policy
arguments against “self-censorship,” id. at 278–79; the “consensus
of scholarly opinion,” id. at 280 n.20; and state defamation laws, id.,
at 280–82. McKee, 586 U.S. at 1175 (Thomas, J., concurring in denial
of certiorari). But notably absent from this litany of sources is
anything informing the original meaning of the First Amendment
or the original understanding of the Fourteenth Amendment at the
time of its ratification.2 Thus although the Court declared that its

2 I recognize the “ongoing scholarly debate on whether courts should primar-

ily rely on the prevailing understanding of an individual right when the Four-
teenth Amendment was ratified in 1868 when defining its scope (as well as the
scope of the right against the Federal Government).” N.Y. State Rifle & Pistol
Ass’n, Inc. v. Bruen, 597 U.S. 1, 37 (2022); see also United States v. Rahimi, 602
U.S. 680, 692 n.1 (2024) (same). As in Bruen and Rahimi, resolving this dispute
is unnecessary here because the public understanding of the right to free
speech was, for all relevant purposes, the same with respect to public figures
at both moments in our constitutional history—and, as I explain throughout,
the actual-malice standard did not emerge until a century after ratification of
the Fourteenth Amendment.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 29 of 56

23-11270 LAGOA, J., Concurring 9

actual-malice standard was “required by the First and Fourteenth

Amendments,” Sullivan, 376 U.S. at 283, “it made no attempt to
base that rule on the original understanding of those provisions,”
McKee, 586 U.S. at 1175 (Thomas, J., concurring in denial of
certiorari). On the contrary, the Court itself has subsequently
acknowledged that “the rule enunciated in the New York Times
case . . . is . . . largely a judge-made rule of law,” which “is not
revealed simply by its literal text, but rather is given meaning
through the evolutionary process of common-law adjudication.”
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501–02
(1984).
III.
What, then, does the original meaning of the First
Amendment tell us about the propriety of an actual-malice
standard? To understand the original meaning of the First
Amendment is to understand law as those who ratified it did. Our
starting place is, therefore, the natural law and our accompanying
natural rights as they were understood pre-ratification. Natural
rights are those that we possess innately as human beings; their
existence does not depend on government endowment. See
generally Jud Campbell, Natural Rights and the First Amendment, 127
Yale L.J. 246, 268–80 (2017). As to expression, our Founders
recognized a variety of natural rights, including (as relevant here)
speaking, writing, and publishing. See id. at 269; see also, e.g.,
4 Annals of Cong. 918 (1794) (statement of Rep. William Giles)
(addressing the “the inalienable privilege of thinking, of speaking,
of writing, and of printing”); Proposal by Roger Sherman to House
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 30 of 56

10 LAGOA, J., Concurring 23-11270

Committee of Eleven ( July 21–28, 1789), in The Complete Bill of

Rights: The Drafts, Debates, Sources, and Origins 83 (Neil H.
Cogan ed., 1997) (“Speaking, writing and publishing” are among
“certain natural rights which are retained”); Resolution of the
Virginia House of Delegates, Va. Gazette, & Gen.
Advertiser (Richmond), Jan. 3, 1798, at 2 (referring to the “natural
right of speaking and writing freely”); Letter from Thomas
Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of
Thomas Jefferson, 676, 678 ( Julian P. Boyd ed. 1971) (“[R]ights
which it is useless to surrender to the government” include “the
rights of thinking, and publishing our thoughts by speaking or
writing”); Letter from Thomas Paine to Thomas Jefferson (Mar.
1788), in 13 The Papers of Thomas Jefferson at 4, 5 (1956)
(“[N]atural rights” include “the rights of thinking, speaking,
forming and giving opinions”). The “liberty of the press,” meaning
the freedom to print information, fell within the scope of natural
rights that pre-existed our Bill of Rights. See, e.g., James Alexander,
Letter to the Editor, Pa. Gazette (Philadelphia), Nov. 24, 1737,
reprinted in Freedom of the Press from Zenger to Jefferson, 62, 66
(Leonard W. Levy ed., 1996) (identifying “freedom of speech and
liberty of the press” as “natural rights”). Closely related to
freedom of the press—distinct, according to some; overlapping
according to others—was the freedom to publish, most closely
encapsulating that which we now think of as “journalism.” See
Campbell at 270 (first citing 8 Annals of Cong. 2147–48 (1798)
(statement of Rep. Otis) (distinguishing “the liberty of writing,
publishing, and speaking” from “the freedom of the press”), then
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 31 of 56

23-11270 LAGOA, J., Concurring 11

citing American Intelligence, Indep. Gazetteer (Philadelphia), Jan. 5,

1789, at 3 (“Freedom of speech, which is nothing more than the
freedom of press, is the great bulwark of liberty”), and then citing
Of the Liberty of the Press and Elections, London Evening Post, Oct.
29, Nov. 9, Nov. 14, 1754, reprinted in 16 Scots Magazine 518–19
(1754) (referring generally to “the liberty of individuals to
communicate their thoughts to the public”)). There is little doubt,
then, that our Founding generation recognized the freedoms to
think, speak, write, print, and share ideas as natural rights endowed
in the people by their Creator, not their government.
With the natural right established, we turn to the limits the
government was authorized to impose on speech. 3 Those limits
turn on two central inquiries: the scope of the natural right and the
extent to which we, as a people, agreed to some restraint of the
natural right in exchange for the benefits that nationhood offered.
Enter here the concept of natural law, which, at the least, provides
the understanding that, regardless of any government structure,
one individual may not interfere with another’s natural rights. See
Campbell at 271; Philip A. Hamburger, Natural Rights, Natural Law,
and American Constitutions, 102 Yale L.J. 907, 922–30 (1993)
(“[B]eing equally free, individuals did not have a right to infringe
the equal rights of others, and, correctly understood, even self-
preservation typically required individuals to cooperate—to avoid

3 Hereinafter, I use “speech” as a catch-all term to encompass oral speech,

writing, printing, circulating, and otherwise expressing one’s ideas to an audi-
ence.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 32 of 56

12 LAGOA, J., Concurring 23-11270

doing unto others what they would not have others do unto them.”
(citing John Locke, Two Treatises of Government 290 (Peter
Laslett et., 2d ed. 1967) (bk. II, ch. ii, § 8))). As James Wilson
explained it in his 1790 Lectures on Law, as to avoiding injury and
injustice under the natural law, each person may act “for the
accomplishment of those purposes, in such a manner, and upon
such objects, as his inclination and judgment shall direct; provided
he does no injury to others; and provided some publick interests do
not demand his labours. This right is natural liberty.” James
Wilson, Of the Natural Rights of Individuals, in 2 Collected Works of
James Wilson 1055–56 (Kermit L. Hall & Mark David Hall eds.,
2007).
Consider also social-contract theory, or the idea that those
who formed a body politic surrendered some of their liberty in
doing so. Views on this were quite varied. See Campbell at 273–75.
Blackstone, for one, believed that “every man, when he enters into
society, gives up a part of his natural liberty.” 1 Blackstone *125.
Others viewed it as “necessary to give up [natural] liberty” or at
least necessary to “surrender[] the power of controuling . . . natural
alienable rights.” 1 Zephaniah Swift, A Digest of the Laws of the
State of Connecticut 15 (New Haven, S. Converse 1822);
Theophilus Parsons, Essex Result, reprinted in Memoir of
Theophilus Parsons 359, 366 (Boston, Ticknor & Fields 1861). At
the other end of the spectrum were those who held fast that “the
people surrender nothing” in establishing a nation. The Federalist
No. 84, at 578 (Alexander Hamilton) ( Jacob E. Cooke ed., 1961).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 33 of 56

23-11270 LAGOA, J., Concurring 13

These competing views on the limits imposed by a social

contract largely mirrored competing views on the scope of natural
rights themselves: Thomas Jefferson, for one, maintained that “the
idea is quite unfounded, that on entering into society we give up
any natural right,” but this view traveled hand in hand with his
belief that natural rights were inherently limited by a bar on
“commit[ting] aggression on the equal rights of another” and the
“natural duty of contributing to the necessities of the society.”
Letter from Thomas Jefferson to Francis W. Gilmer ( June 7, 1816),
reprinted in 15 Writings of Thomas Jefferson 23, 24 (Andrew A.
Lipscomb & Albert Ellery Bergh eds., 1905); see also Campbell at
274. In other words, if the natural law already imposed measured
limits on the exercise of a natural right, nothing additional need be
sacrificed by entry into the social contract of a structured society.
Natural law scholar Jud Campbell has summarized the result
of these tensions and balances, explaining that “whether inherently
limited by natural law or qualified by an imagined social contract,
retained natural rights were circumscribed by political authority to
pursue the general welfare. Decisions about the public good,
however, were left to the people and their representatives—not to
judges—thus making natural rights more of a constitutional
lodestar than a source of judicially enforceable law.” Campbell at
276. Thus, the Founders simultaneously understood that freedom
of speech was both a natural right not dependent on government
creation, and also subject to certain limitations for the public
good—so long as those limitations did not abridge the natural right
as it existed in a system of natural law. And while the freedoms of
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 34 of 56

14 LAGOA, J., Concurring 23-11270

speech and of the press were both viewed as natural rights, they
were viewed as properly subject to different regulation, with
recognition that written statements were “more extended” and
“more strongly fixed,” thus “posing a greater threat to public
order.” Id. at 280 (citing James Sullivan, Dissertation upon the
Constitutional Freedom of the Press in the United States 12
(Boston, Joseph Nancrede ed.,1801)).
We turn next to the contours of the natural right and the
natural law, and the types of restriction that were viewed as
consistent with those boundaries. The Founders widely believed
that “opinions,” as James Madison observed to his colleagues, “are
not the objects of legislation.” Annals of Cong. 934 (1794)
(statement of Rep. James Madison); see also Francis Hutcheson, An
Inquiry into the Original of Our Ideas of Beauty and Virtue: In
Two Treatises 185 (Knud Haakonssen ed., 2004) (1726) (explaining
that “the Right of private Judgment, or of our inward Sentiments,
is unalienable; since we cannot command ourselves to think what
either we our selves or any other Person please”). In other words,
opinion, understood as non-volitional thought, was not subject to
government regulation at the time of the Founding. See Campbell
at 281 (first citing PA Const. of 1776, ch. 1, § 12 (protecting the
freedom to express “sentiments”), and then citing PA Const. of
1790, art. IX, § 7 (enshrining freedom of “thoughts and opinions”));
see also Letter from Thomas Jefferson to David Humphreys (Mar.
18, 1789), in 14 The Papers Of Thomas Jefferson, at 676, 678 (1958)
(identifying “the rights of thinking, and publishing our thoughts by
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 35 of 56

23-11270 LAGOA, J., Concurring 15

speaking or writing,” as natural rights not surrendered to

government restriction).
But the freedom of opinion raises another question: What
forms an opinion? History confirms that the freedom to express
opinions was, indeed, limited to honest statements and did not
encompass dishonesty or deceit. For instance, even in the debates
over the Sedition Act, a persistent and widespread consensus
emerged that “well-intentioned statements of opinion, including
criticisms of government, were constitutionally shielded.”
Campbell at 284; see also Alexander Addison, Analysis of the Report
of the Committee of the Virginia Assembly, on the Proceedings of
Sundry of the Other States in Answer to their Resolutions 42
(Philadelphia, Zachariah Poulson Jr., ed., 1800) (“[I]t is well known
that, as by the common law of England, so by the common law of
America, and by the Sedition act, every individual is at liberty to
expose, in the strongest terms, consistent with decency and truth
all the errors of any department of the government.”).
Consistent with the notion that the natural right to free
speech coexisted with a limitation forbidding injurious lies, “10 of
the 14 States that had ratified the Constitution by 1792 had
themselves provided constitutional guarantees for free
expression,[4] and 13 of the 14 nevertheless provided for the

4 See Del. Const. 1792, Art. I, § 5; Ga. Const. 1777, Art. LXI; Md. Const. 1776,
Declaration of Rights, § 38; Mass. Const. 1780, Declaration of Rights, Art. XVI;
N.H. Const. 1784, Art. 1, § 22; N.C. Const. 1776, Declaration of Rights, Art.
XV; Pa. Const. 1776, Declaration of Rights, Art. XII; S.C. Const. 1778, Art.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 36 of 56

16 LAGOA, J., Concurring 23-11270

prosecution of libels.[ 5]” Gertz, 418 U.S. at 380–81 (White, J.,

dissenting) (citing Roth v. United States, 354 U.S. 476, 482 (1957)).
IV.
What do we take away from the original sources? As the
Supreme Court observed in Roth, “[t]he protection given speech
and press was fashioned to assure unfettered interchange of ideas
for the bringing about of political and social changes desired by the
people,” 354 U.S. at 484, but such assurance focused on the
exchange of ideas in service of advancing truth and imposed no
additional burdens to recovery based on the harmed party’s station
in society. In a 1774 letter to the inhabitants of Quebec, the
Continental Congress expressed the following objective:
The last right we shall mention, regards the
freedom of the press. The importance of this
consists, besides the advancement of truth, science,

XLIII; Vt. Const. 1777, Declaration of Rights, Art. XIV; Va. Bill of Rights, 1776,
§ 12.
5 See Act to Secure the Freedom of the Press (1804), 1 Conn. Pub. Stat. Laws
355 (1808); Del. Const. 1792, Art. I, § 5; Ga. Penal Code, Eighth Div., § 8 (1817),
Digest of the Laws of Ga. 364 (Prince 1822); Act of 1803, c. 54, II Md. Public
General Laws 1096 (Poe 1888); Commonwealth v. Kneeland, 37 Mass. 206, 232
(Mass. 1838); Act for the Punishment of Certain Crimes Not Capital (1791),
Laws of N.H. 253 (1792); Act Respecting Libels (1799), N.J. Rev. Laws 411
(1800); People v. Croswell, 3 Johns. Cas. 337 (N.Y. 1804); Act of 1803, c. 632, 2
Laws of N.C. 999 (1821); Pa. Const. 1790, Art. 9, § 7; R.I. Code of Laws (1647),
Proceedings of the First General Assembly and Code of Laws 44–45 (1647);
R.I. Const. 1842, Art. I, § 20; Act of 1804, 1 Laws of Vt. 366; Commonwealth v.
Morris, 3 Va. (1 Va. Cas.) 176 (Va. 1811).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 37 of 56

23-11270 LAGOA, J., Concurring 17

morality, and arts in general, in its diffusion of liberal

sentiments on the administration of Government, its
ready communication of thoughts between subjects,
and its consequential promotion of union among
them, whereby oppressive officers are shamed or
intimidated, into more honourable and just modes of
conducting affairs.
1 Journals of the Continental Congress 108 (1774). This
statement from the Continental Congress, as the Court said in
Roth, supports a conclusion that “[a]ll ideas having even the
slightest redeeming social importance—unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing climate of
opinion—have the full protection of the guaranties, unless
excludable because they encroach upon the limited area of more
important interests.” Roth, 354 U.S. at 484. Among those
“excludable” expressions, we can only conclude, are those that
patently do not serve “the advancement of truth.” See 1 Journals
of the Continental Congress 108.
Notably absent from the historical discussion is anything
resembling a heightened requirement making it more difficult to
prosecute libel or slander directed at an official (much less a “public
figure”) rather than a private citizen. On the contrary, the accepted
consensus was that public officials could sue for libel “upon the
same footing with a private individual” because “[t]he character of
every man should be deemed equally sacred, and of consequence
entitled to equal remedy.” Tunis Wortman, A Treatise, Concerning
Political Enquiry, and the Liberty of the Press 259 (New York George
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 38 of 56

18 LAGOA, J., Concurring 23-11270

Forman, ed., 1800); accord St. George Tucker, View of the

Constitution of the United States with Selected Writings 237–38 (Clyde
N. Wilson, ed., 1999) (1803) (“[T]he judicial courts of the respective
states are open to all persons alike, for the redress of injuries of this
nature; there, no distinction is made between one individual and
another; the farmer, and the man in authority, stand upon the same
ground: both are equally entitled to redress for any false aspersion
on their respective characters, nor is there any thing in our laws or
constitution which abridges this right.”).
From all this, I conclude, as Justice White did in Gertz, that
“[s]cant, if any, evidence exists that the First Amendment was
intended to abolish the common law of libel, at least to the extent
of depriving ordinary citizens of meaningful redress against their
defamers.” 418 U.S. at 381 (White, J., dissenting). What the
historical documents suggest is that, in its original context, the First
Amendment was intended to protect free dissemination of ideas—
all manner of ideas, particularly those out of fashion or
disfavored—but not the dissemination of lies. See, e.g., 10 Benjamin
Franklin Writings 38 (1907) (“If by the Liberty of the Press were
understood merely the Liberty of discussing the Propriety of
Public Measures and political opinions, let us have as much of it as
you please: But if it means the Liberty of affronting, calumniating,
and defaming one another, I, for my part, own myself willing to
part with my Share of it when our Legislators shall please so to
alter the Law, and shall cheerfully consent to exchange my Liberty
of Abusing others for the Privilege of not being abus’d
myself.”); Frank Luther Mott, Jefferson and the Press 14 (1943)
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 39 of 56

23-11270 LAGOA, J., Concurring 19

(explaining that Thomas Jefferson endorsed the language of the

First Amendment as ratified only after suggesting that “[t]he
people shall not be deprived of their right to speak, to write, or
otherwise to publish anything but false facts affecting injuriously the
life, liberty or reputation of others”).
And we held onto that principle for the first two centuries of
our national existence. See, e.g., Near v. Minnesota, 283 U.S. 697, 715
(1931) (“But it is recognized that punishment for the abuse of the
liberty accorded to the press is essential to the protection of the
public, and that the common-law rules that subject the libeler to
responsibility for the public offense, as well as for the private injury,
are not abolished by the protection extended in our [state and
federal] Constitutions. The law of criminal libel rests upon that
secure foundation.” (citation omitted)).
Just a decade before Sullivan, the Supreme Court reiterated
as much, explaining that “[l]ibelous utterances not being within the
area of constitutionally protected speech, it is unnecessary, either
for us or for the State courts, to consider the issues behind the
phrase ‘clear and present danger.’” Beauharnais v. People of the State
of Ill., 343 U.S. 250, 266 (1952). But, as we know, this interpretation
of the First Amendment, true to its original meaning, fell apart
shortly thereafter.
V.
As expressed by Justice White, Sullivan and its progeny
represent “an ill-considered exercise of the power entrusted to [the]
Court.” Gertz, 418 U.S. at 370 (White, J., dissenting). The lasting
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 40 of 56

20 LAGOA, J., Concurring 23-11270

effect of Sullivan, as anyone who ever turns on the news or opens a

social media app knows well, is that media organizations can “cast
false aspersions on public figures with near impunity,” Tah, 991 F.3d
at 254 (Silberman, J., dissenting in part), causing untold harm to
public figures and the general public alike. Jettisoning the original
meaning of the First Amendment—and centuries of common law
faithful to that meaning—has left us in an untenable place, where
by virtue of having achieved some bit of notoriety in the public
sphere, defamation victims are left with scant chance at recourse
for clear harms. But until the Supreme Court reconsiders Sullivan,
we are bound by it, and I therefore must concur.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 41 of 56

23-11270 WILSON, J., Concurring 1

WILSON, Circuit Judge, Concurring:

I concur with the majority but write separately to express
my reservations about suggestions that the Supreme Court should
reconsider New York Times Co. v. Sullivan, 376 U.S. 254 (1964). “Fi-
delity to precedent—the policy of stare decisis—is vital to the
proper exercise of the judicial function.” Citizens United v. FEC, 558
U.S. 310, 377 (2010) (Roberts, C.J., concurring). I believe that Sulli-
van reflects “the accumulated wisdom of judges who have previ-
ously tried to solve the same problem,” Ramos v. Louisiana, 590 U.S.
83, 115–16 (2020) (Kavanaugh, J., concurring).
To be sure, our understanding of the First Amendment
should be guided by its original meaning and heed common law
traditions. But “ambiguous historical evidence,” Gamble v. United
States, 587 U.S. 678, 691 (2019), does not justify casting aside a unan-
imous Supreme Court decision and nearly sixty years of settled
precedent. The “real-world consequences” and reliance interests at
stake counsel us to pump the brakes before calling to overrule Sul-
livan. See Ramos, 590 U.S. at 122 (Kavanaugh, J., concurring).
I.

Adherence to precedent is “a foundation stone of the rule of

law.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014).
Stare decisis is the “means by which we ensure that the law will not
merely change erratically, but will develop in a principled and intel-
ligible fashion,” and “permits society to presume that bedrock prin-
ciples are founded in the law rather than in the proclivities of indi-
viduals.” Vasquez v. Hillery, 474 U.S. 254, 265–66 (1986); accord. Payne
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 42 of 56

2 WILSON, Jr., Concurring 23-11270

v. Tennessee, 501 U.S. 808, 827 (1991). Indeed, “the entire idea of stare
decisis is that judges do not get to reverse a decision just because
they never liked it in the first instance.” Knick v. Twp. of Scott, 588
U.S. 180, 224 (2019) (Kagan, J., dissenting).
“The Framers of our Constitution understood that the doc-
trine of stare decisis is part of the ‘judicial Power’ and rooted in Ar-
ticle III of the Constitution.” Ramos, 590 U.S. at 116 (Kavanaugh, J.,
concurring). Alexander Hamilton wrote that to “avoid an arbitrary
discretion in the courts, it is indispensable” that federal judges
“should be bound down by strict rules and precedents, which serve
to define and point out their duty in every particular case that
comes before them.” Id. (quoting The Federalist No. 78, p. 529 ( J.
Cooke ed. 1961)). Blackstone wrote that “it is an established rule to
abide by former precedents,” to “keep the scale of justice even and
steady, and not liable to waver with every new judge’s opinion.” Id.
(quoting 1 W. Blackstone, Commentaries on the Laws of England
69 (1765)).
Of course, Judges and even Justices, are fallible. Cf. Brown v.
Allen, 344 U.S. 443, 540 (1953) ( Jackson, J., concurring). And it is
especially important for the Court to correct errors in constitu-
tional rulings, which “Congress cannot override . . . by ordinary
legislation.” Gamble, 587 U.S. at 691. But even in constitutional
cases, the Supreme Court “has always held that ‘any departure’”
from precedent “demands special justification.” Michigan, 572 U.S.
at 798 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). This is
especially true when the constitutional protections recognized by
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 43 of 56

23-11270 WILSON, J., Concurring 3

the precedent have “become part of our national culture.” Dicker-

son v. United States, 530 U.S. 428, 443 (2000). The strength of the case
for adhering to such decisions only grows in proportion to their
“antiquity.” Montejo v. Louisiana, 556 U.S. 778, 792 (2009).
In his concurring opinion in Ramos v. Louisiana, Justice Ka-
vanaugh synthesized the Supreme Court’s “varied and somewhat
elastic stare decisis factors” into “three broad considerations” to de-
termine what qualifies as a “special justification” or “strong
grounds” to overrule a prior constitutional decision. 590 U.S. at
121.
First, the precedent must be “egregiously wrong as a matter
of law.” Id. at 122. “A garden-variety error or disagreement does
not suffice to overrule.” Id. at 121–22. The Court examines factors
such as “the quality of the precedent’s reasoning, consistency and
coherence with other decisions, changed law, changed facts, and
workability.” Id. at 122. Second, the Court considers whether “the
prior decision caused significant negative jurisprudential or real-
world consequences.” Id. This includes both “jurisprudential con-
sequences,” such as “workability, . . . consistency and coherence
with other decisions,” and “the precedent’s real-world effects on
the citizenry.” Id. Finally, the Court examines whether “overruling
the prior decision unduly upset reliance interests.” Id. “This consid-
eration focuses on the legitimate expectations of those who have
reasonably relied on the precedent. In conducting that inquiry, the
Court may examine a variety of reliance interests and the age of
the precedent, among other factors.” Id.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 44 of 56

4 WILSON, Jr., Concurring 23-11270

Using Ramos as my guide, I first inquire into “how wrong”

Sullivan is as a matter of law before turning to a “sober appraisal of
the disadvantages of the innovation as well as those of the ques-
tioned case, a weighing of practical effects of one against the
other.” Id. at 122–23 (quotation marks omitted).
A. Step One: Was Sullivan Wrongly Decided?
Before overturning a long-settled precedent like Sullivan, the
Court requires more than “just an argument that the precedent was
wrongly decided.” Halliburton Co. v. Erica P. John Fund, 573 U.S. 258,
266 (2014). The First Amendment’s history and jurisprudence tell
us Sullivan was, at the very least, not “egregiously wrong,” see Ra-
mos, 590 U.S. at 122 (Kavanaugh, J., concurring).
In Sullivan, a unanimous Supreme Court held that the First
Amendment, as applied to the states through the Fourteenth
Amendment, limits application of state libel and defamation laws.
376 U.S. at 283. The “constitutional guarantees” of free press re-
quired “a federal rule that prohibits a public official from recover-
ing damages for a defamatory falsehood relating to his official con-
duct unless he proves that the statement was made with ‘actual
malice’—that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.” Id. at 279–80.
Sullivan’s “actual malice” requirement “has its counterpart
in rules previously adopted by a number of state courts and exten-
sively reviewed by scholars for generations.” Bose Corp. v. Consum-
ers Union of U.S., Inc., 466 U.S. 485, 502 (1984). The rule is premised
both on “common-law tradition” and “the unique character of the
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 45 of 56

23-11270 WILSON, J., Concurring 5

interest” it protects. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491

U.S. 657, 685–86 (1989) (footnote omitted).
Sullivan was “widely perceived as essentially protective of
press freedoms,” and “has been repeatedly affirmed as the appro-
priate First Amendment standard applicable in libel actions
brought by public officials and public figures.” Herbert v. Lando, 441
U.S. 153, 169 (1979). It “honored both the Court’s previous recog-
nition that ‘libel’ is not protected by the First Amendment and its
concomitant obligation to determine the definitional contours of
that category of unprotected speech.” Lee Levine & Stephen
Wermiel, What Would Justice Brennan Say to Justice Thomas?, 34
Commn’s Law. 1, 2 (2019).
For decades after Sullivan, even as defamation plaintiffs peti-
tioned the Court to limit or overrule the case, the Court refused.
Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82 La.
L. Rev. 81, 84 & n.18 (2021). Although it faced some academic skep-
ticism since the 1980s, 1 a “growing movement to engineer the over-
ruling of Sullivan” has emerged in recent years, fueled by the idea
that it represents an exercise of “judicial policymaking.” See Saman-
tha Barbas, New York Times v. Sullivan: Perspectives from History, 30
Geo Mason L. Rev. F. 1, 2 (2023).
These calls intensified in 2019, after Justice Thomas au-
thored an opinion concurring in the denial of certiorari in McKee v.

1 E.g., Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U. Chi.
L. Rev. 782 (1986).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 46 of 56

6 WILSON, Jr., Concurring 23-11270

Cosby to question Sullivan’s actual-malice requirement. 586 U.S.

1172, 1172 (2019). According to Justice Thomas, the unanimous
Sullivan Court and the decades of Supreme Court caselaw that ap-
plied it failed to make “a sustained effort to ground their holdings
in the Constitution’s original meaning.” Id. at 1175. In his view,
these rulings “broke sharply from the common law of libel, and
there are sound reasons to question whether the First and Four-
teenth Amendments displaced this body of common law.” Id. at
1176. Rather, Sullivan “and the Court’s decisions extending it were
policy-driven decisions masquerading as constitutional law.” Id. at
1173. Justice Gorsuch later echoed this critique in Berisha v. Lawson,
141 S. Ct. 2424, 2425 (2021) (Gorsuch, J., dissenting from denial of
certiorari).
In perhaps their own form of “ideological lockstep” or “un-
welcome groupthink,” others echoed this “originalist” interpreta-
tion of state libel law. E.g., Tah v. Glob. Witness Publ’g, Inc., 991 F.3d
231, 251 (D.C. Cir. 2021) (Silberman, J., dissenting). The district
court here did the same, criticizing Sullivan as “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.” Dershowitz v. Cable News Network, Inc., 668 F. Supp. 3d
1278, 1286–87 (S.D. Fla. 2023).
But a policy argument couched in history is still a policy ar-
gument. And experience tells us that “disputed history provides
treacherous ground on which to build decisions written by judges
who are not expert at history.” Cf. McDonald v. City of Chicago, 561
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 47 of 56

23-11270 WILSON, J., Concurring 7

U.S. 742, 914 (2010) (Breyer, J., dissenting). See generally Schafer, su-
pra, at 132–44 (detailing the flaws in McKee and Berisha’s historical
analysis).2
History’s flaws are especially apparent when confronting the
law of libel in the United States, which “is not now, nor ever was,
tidy.” Schafer, supra, at 97. “The founding generation and the Con-
gresses of the Reconstruction were not of one mind when it came
to the common law of libel or the effect, if any, the First and Four-
teenth Amendments had on it.” Id. “We know very little of the pre-
cise intentions of the framers and ratifiers of the speech and press
clauses of the first amendment” when it comes to defamation ac-
tions. Ollman v. Evans, 750 F.2d 970, 996 (D.C. Cir. 1984) (Bork, J.,
concurring). “But we do know that they gave into our keeping the

2 See also, e.g., Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82
La. L. Rev. 81, 150 (2021) (“The freedom of the press that Thomas and Gor-
such espouse is not an originalist one; it is a monarchist’s one, predating the
Founding and purporting to import into the First Amendment today common
law rules long ago rejected by the Founders and early courts. This approach,
however, violates Thomas’s own instruction that what matters for the pur-
poses of an originalist inquiry is the ‘founding era understanding.’ Indeed,
Thomas’s view ignores that there was a Revolution, and that no small com-
plaint of that Revolution was England’s abuses of prosecutions of early Amer-
ican printers. It also ignores everything that happened between 1789 and 1868
when the Fourteenth Amendment made the First Amendment applicable as
against the States. Thomas’s failure to deal with this history draws into ques-
tion his supposed commitment to it.”); Josh Blackman, Originalism and Stare
Decisis in the Lower Courts, 13 N.Y.U. J.L. & Liberty 44, 54–55 (2019) (recogniz-
ing the Seditious Conspiracy Act provides “some originalist basis to impose a
higher bar for libel suits filed by government officials”).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 48 of 56

8 WILSON, Jr., Concurring 23-11270

value of preserving free expression and, in particular, the preserva-

tion of political expression, which is commonly conceded to be the
value at the core of those clauses.” Id.
The Founders rejected early attempts to “transplant the
English rule of libels on government to American soil.” See City of
Chicago v. Trib. Co., 307 Ill. 595, 603 (1923). And “the restricted rules
of the English law in respect of the freedom of the press in force
when the Constitution was adopted were never accepted by the
American colonists.” Grosjean v. Am. Press Co., 297 U.S. 233, 249
(1936). Rather, “[o]ne of the objects of the Revolution was to get
rid of the English common law on liberty of speech and of the
press.” Henry Schofield, Freedom of the Press in the United States, 9
Proc. Am. Soc. Soc’y 67, 76 (1914).
Conflicting history aside, “[i]t is ironic that an approach so
utterly dependent on tradition is so indifferent to our precedents.”
Michael H. v. Gerald D., 491 U.S. 110, 138 (1989) (Brennan, J., dissent-
ing). The Supreme Court’s First Amendment jurisprudence “is one
of continual development, as the Constitution’s general command
that ‘Congress shall make no law . . . abridging the freedom of
speech, or of the press,’ has been applied to new circumstances re-
quiring different adaptations of prior principles and precedents.”
Denver Area Educ. Telecommc’ns Consortium, Inc. v. FCC, 518 U.S. 727,
740 (1996). Sullivan is part of a “judicial tradition of a continuing
evolution of doctrine to serve the central purpose of the first
amendment.” Ollman, 750 F.2d at 995 (Bork, J., concurring).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 49 of 56

23-11270 WILSON, J., Concurring 9

The consistent, guiding principle since the Founding and

throughout our country’s history is that the First Amendment
“rests on the assumption that the widest possible dissemination of
information from diverse and antagonistic sources is essential to
the welfare of the public, that a free press is a condition of a free
society.” Associated Press v. United States, 326 U.S. 1, 20 (1945).
The First Amendment “preserve[s] an uninhibited market-
place of ideas in which truth will ultimately prevail.” Red Lion
Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). Our “profound national
commitment to the free exchange of ideas . . . demands that the
law of libel carve out an area of ‘breathing space’ so that protected
speech is not discouraged.” Harte-Hanks Commc’ns, 491 U.S. at 686.
Allowing states to punish all errors in statements about the official
conduct of public figures would be antithetical to the First Amend-
ment, because “[w]hatever is added to the field of libel is taken
from the field of free debate.” Sullivan, 376 U.S. at 272. We must
“protect some falsehood in order to protect speech that matters.”
Gertz v. Robert Welch, Inc., 418 U.S. 323, 340–41 (1974).
Playing a key role in the marketplace, the “press serves and
was designed to serve as a powerful antidote to any abuses of
power by governmental officials and as a constitutionally chosen
means for keeping officials elected by the people responsible to all
the people whom they were selected to serve.” Mills v. Alabama, 384
U.S. 214, 219 (1966). “Suppression of the right of the press to praise
or criticize governmental agents . . . muzzles one of the very
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 50 of 56

10 WILSON, Jr., Concurring 23-11270

agencies the Framers of our Constitution thoughtfully and deliber-

ately selected to improve our society and keep it free.” Id.
What was true in 1791, 1868, and 1964 remains true today:
a libel law regime that allows public figures and officials to silence
“speech that matters,” Gertz, 418 U.S. at 340–41, absent complete
accuracy, “dampens the vigor and limits the variety of public de-
bate” and is “inconsistent with the First and Fourteenth Amend-
ments.” Sullivan, 376 U.S. at 279.
B. Negative Jurisprudential or Real-World Consequences
At most, the complex history of libel law shows that Sulli-
van’s interpretation of the First Amendment was a “garden-variety
error or disagreement” not “egregiously wrong.” See Ramos, 590
U.S. at 121–22 (Kavanaugh, J., concurring). So I move to whether
the decision “caused significant negative jurisprudential or real-
world consequences.” See id. at 122. Again, the answer is no. Sulli-
van’s actual-malice rule—shaped by the realities of libel litigation
and refined by decades of precedent—represents a careful balance
between the central First Amendment right to free discussion
about matters of public concern and “the individual’s interest in his
reputation.” Herbert, 441 U.S. at 169; accord Monitor Patriot Co. v. Roy,
401 U.S. 265, 276 (1971).
Looking first to jurisprudential consequences, such as con-
sistency and workability, Sullivan’s actual-malice rule allows courts
to “expeditiously weed out unmeritorious defamation suits” while
“preserv[ing] First Amendment freedoms and giv[ing] reporters,
commentators, bloggers, and tweeters (among others) the
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 51 of 56

23-11270 WILSON, J., Concurring 11

breathing room they need to pursue the truth.” Kahl v. Bureau of

Nat’l Affs., Inc., 856 F.3d 106, 109 (D.C. Cir. 2017) (Kavanaugh, J.).
A return to the common-law defense that “the alleged libel
was true in all its factual particulars,” rather than malice, would be
nearly unworkable. See Sullivan, 376 U.S. at 279. The “difficulties of
separating fact from fiction convinced the Court in New York Times,
Butts, Gertz, and similar cases to limit liability to instances where
some degree of culpability is present in order to eliminate the risk
of undue self-censorship and the suppression of truthful material.”
Bose Corp., 466 U.S. at 513 (citation modified); see also Sullivan, 376
U.S. at 279 (citing examples). And hinging liability for public criti-
cism on a judge or jury’s determination of what is true deviates
from the “marketplace of ideas” the First Amendment protects—
where truth depends on an idea’s competition with other ideas, not
a government censor. Jane E. Kirtley Uncommon Law: The Past, Pre-
sent and Future of Libel Law in a Time of “Fake News” and “Enemies of
the American People”, 2020 U. Chi. L.F. 117, 123 (2020); see also Hustler
Mag., Inc. v. Falwell, 485 U.S. 46, 56 (1988) (“For it is a central tenet
of the First Amendment that the government must remain neutral
in the marketplace of ideas.”).
As far as “real-world effects on the citizenry,” Sullivan al-
lowed the public and the press to criticize public officials, 376 U.S.
at 282–83, and public figures, Gertz, 418 U.S. at 351–52, and contrib-
ute to vital national dialogue without fear of unwarranted retalia-
tion. Over the last sixty years, Sullivan’s “actual malice” require-
ment has consistently “ensure[d] that debate on public issues
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 52 of 56

12 WILSON, Jr., Concurring 23-11270

remains uninhibited, robust, and wide-open,” while balancing the

individual’s interest in his reputation. Milkovich v. Lorain J. Co., 497
U.S. 1, 20 (1990) (internal quotation marks omitted).
Although today’s media landscape has changed, the interests
on both sides of Sullivan’s equation remain almost the same. On
one side, Sullivan safeguards a First Amendment right to public de-
bate that is “not only an aspect of individual liberty—and thus a
good unto itself—but also is essential to the common quest for
truth and the vitality of society as a whole.” Falwell, 485 U.S. at 51
(quoting Bose Corp., 466 U.S. at 503–04). Placing “the burden of
proving truth upon media defendants who publish speech of public
concern deters such speech because of the fear that liability will
unjustifiably result,” and “would be antithetical to the First Amend-
ment’s” central protections. Phila. Newspapers, Inc. v. Hepps, 475 U.S.
767, 777–78 (1986).
Constitutional safeguards that protect “the free flow of ideas
and opinions on matters of public interest and concern,” Falwell,
485 U.S. at 50, are just as critical today as they were sixty years ago.3

3 During the Civil Rights Movement, libel suits became “formidable legal
bludgeon[s]” for pro-segregation government officials “to swing at out-of-state
newspapers whose reporters cover racial incidents.” Brief of the American
Civil Liberties Union and the New York Civil Liberties Union as Amici Curiae
at 6, N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (Nos. 39 & 40). By the time
Sullivan reached the Supreme Court, national media outlets faced over $288
million in potential damages for their reporting on the Civil Rights Movement.
Samantha Barbas, New York Times v. Sullivan: Perspectives from History, 30
Geo Mason L. Rev. F. 1, 5 (2023). See generally Christopher W. Schmidt, New
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 53 of 56

23-11270 WILSON, J., Concurring 13

Public and government officials continue to threaten libel suits, not

for their common-law purpose of protecting one’s character and
image, but to threaten and silence dissenters and critics. Sullivan’s
longstanding protections are critical if the press is to continue its
function as the “constitutionally chosen means for keeping officials
elected by the people responsible to all the people whom they were
selected to serve.” Mills, 384 U.S. at 219. 4
On the other side, the concern about injuries to an individ-
ual’s reputation are mostly unchanged. “The sort of robust political
debate encouraged by the First Amendment is bound to produce
speech that is critical” of public officials or public figures. Falwell,
485 U.S. at 51. And plaintiffs who cannot show “actual malice” may
suffer some unwarranted reputational harm which cannot “easily
be repaired by counterspeech.” Id. at 52. Now, just as then, public
figures “have a more realistic opportunity to counteract false

York Times v. Sullivan and the Legal Attack on the Civil Rights Movement, 66 Ala.
L. Rev. 293 (2014).
4 American press freedoms once ranked among the broadest in the world, in
part because of Sullivan. See International Libel & Privacy Handbook xv–xvi
(Charles J. Glasser Jr. ed., 2d ed. 2009) (“In essence, the U.S. model is based on
the press-friendly moral engine that drives American media law.”). But “[a]fter
a century of gradual expansion of press rights in the United States, the country
is experiencing its first significant and prolonged decline in press freedom in
modern history.” World Press Freedom Index: United States, REPORTERS
WITHOUT BORDERS, https://rsf.org/en/country/united-states#laws-19525.
Int’l Women’s Media Found., Journalists Under Fire: U.S. Media Report Daily
Threats, Harassment and Attacks at Home 15 (2024) (documenting “surging har-
assment and threats against journalists” in the United States).
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 54 of 56

14 WILSON, Jr., Concurring 23-11270

statements than private individuals normally enjoy,” and perhaps

even more so with new technology creating new “channels of ef-
fective communication.” See Gertz, 418 U.S. at 344.
Public criticism, even false criticism, “is not always a pleasant
or painless experience, but it cannot be avoided if the political arena
is to remain as vigorous and robust as the first amendment and the
nature of our polity require.” Ollman, 750 F.2d at 1002 (Bork, J.,
concurring). Two decades after Sullivan, Chief Justice Rehnquist,
writing for a unanimous Supreme Court, reiterated that a state’s
“interest in protecting public figures from emotional distress” can-
not justify denying First Amendment protection. Falwell, 485 U.S.
at 50. Rather, the danger to reputation is one we have chosen to
tolerate in pursuit of “individual liberty” and “the common quest
for truth and the vitality of society as a whole.” Id. at 50–51 (quot-
ing Bose Corp., 466 U.S. at 503–04). After all, “one of the prerogatives
of American citizenship is the right to criticize public men and
measures.” Id. at 51 (quoting Baumgartner v. United States, 322 U.S.
665, 673–74 (1944)) (alteration adopted).
The “real world” consequences of stripping away Sullivan’s
protections in our current media climate would do the opposite of
“preserve an uninhibited marketplace of ideas,” Red Lion Broad. Co.,
395 U.S. at 390, and “muzzle[] one of the very agencies the Framers
of our Constitution thoughtfully and deliberately selected to im-
prove our society and keep it free.” Mills, 384 U.S. at 219.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 55 of 56

23-11270 WILSON, J., Concurring 15

C. Reliance Interests
Beyond Sullivan’s correctness and its real-world implications,
“the antiquity of the precedent” and the “reliance interests at
stake” counsel us to proceed with caution before calling for the
Court to overturn Sullivan. See Montejo, 556 U.S. at 792–93. Sullivan
has “become part of the fabric of American law” and been “woven
into a long line of federal and state cases.” Roy S. Gutterman, Ac-
tually . . . A Renewed Stand for The First Amendment Actual Malice De-
fense, 68 Syracuse L. Rev. 579, 580, 602 (2018). Its “recognition that
libel law could violate the First Amendment was the critical step
that made possible all the Court’s subsequent defamation decisions
and the many restrictions later imposed on libel law by state judges
and legislatures.” David A. Anderson, The Promises of New York
Times v. Sullivan, 20 Roger Williams U. L. Rev. 1, 23 (2015).
The “evenhanded, predictable, and consistent development
of legal principles” and “reliance on judicial decisions,” Payne, 501
U.S. at 827, is “particularly important in the area of free speech for
precisely the same reason that the actual malice standard is itself
necessary.” Harte-Hanks Commc’ns, Inc., 491 U.S. at 686. First
Amendment freedoms “are delicate and vulnerable, as well as su-
premely precious in our society. The threat of sanctions may deter
their exercise almost as potently as the actual application of sanc-
tions.” NAACP v. Button, 371 U.S. 415, 433 (1963); accord. Thomas v.
Collins, 323 U.S. 516, 529–30 (1945). “Uncertainty as to the scope of
the constitutional protection can only dissuade protected speech—
the more elusive the standard, the less protection it affords.” Harte-
Hanks Commc’ns, Inc., 491 U.S. at 686.
USCA11 Case: 23-11270 Document: 68-1 Date Filed: 08/29/2025 Page: 56 of 56

16 WILSON, Jr., Concurring 23-11270

Overruling Sullivan would be especially disruptive because

the case defines “the central meaning of the First Amendment” and
influenced “virtually all of the Supreme Court’s subsequent First
Amendment jurisprudence.” Wermiel, supra, at 2. Casting the de-
cision aside in favor of varied, plaintiff-friendly state libel laws
would “create an inevitable, pervasive, and serious risk of chilling
protected speech pending the drawing of fine distinctions that, in
the end, would themselves be questionable.” Cf. Citizens United, 558
U.S. at 327.
II.

Out of respect for unanimous Supreme Court precedent,

and the press freedoms that played a critical role in securing the
civil rights many in this country hold dear, judges should reconsider
their calls for the Supreme Court to overrule Sullivan. “For it is hard
to overstate the value, in a country like ours, of stability in the law.”
Knick, 588 U.S. at 224 (Kagan, J., dissenting).