Harvard Law School professor emeritus Alan Dershowitz told Newsmax on Monday that the Supreme Court's decision not to hear his defamation lawsuit against CNN represents "a loss for individual rights" because the Constitution's "actual malice" standard makes it nearly impossible for public figures to hold news organizations accountable for false statements.
The Supreme Court on Monday denied Dershowitz's petition for a writ of certiorari in his lawsuit against CNN, leaving in place lower court rulings against him.
Justices Clarence Thomas and Neil Gorsuch dissented from the denial, with Thomas arguing the court should reconsider the constitutional standard established in New York Times Co. v. Sullivan.
On "The Record With Greta Van Susteren," Dershowitz said lower courts concluded CNN had misstated his comments at President Donald Trump's first impeachment trial but ruled he failed to meet the high legal bar required for public figures.
"All of the judges who wrote about it concluded that they had lied about me. They had defamed me. They had misstated what I said," Dershowitz said.
"But they said I couldn't prove by clear and convincing evidence. I didn't even have a right to try to prove it [to] a jury that they did it maliciously.
"I think I could have persuaded a jury of that, but the Supreme Court said no," he added.
Dershowitz said proving what was in a defendant's mind presents an almost insurmountable obstacle.
"How do you get into somebody's brain and how do you persuade a court of that?" he said.
Thomas wrote that because Dershowitz is a public figure, precedent required him to prove CNN acted with "actual malice," an "exacting standard" created by the Supreme Court in its landmark 1964 Sullivan decision.
Thomas reiterated his long-standing view that the standard "bears 'no relation to the text, history, or structure of the Constitution'" and said he would have granted review to reconsider it.
Dershowitz predicted the court will eventually revisit the issue as the media landscape evolves.
"I think there are now three or so justices who are willing to do it," he said. "I suspect that number will go up to four or five and six as the media becomes less responsible.
"The government can't control the media. The media doesn't control itself, so only lawsuits can do it," Dershowitz said. "So, I think this was a loss for individual rights."
He also criticized CNN for declining to apologize and said the network recently sought to recover about $60,000 in litigation costs after prevailing in the case.
"They just sent me a bill for around $60,000 saying I had to pay their court costs as well, even though they lied about me, defamed me, and managed to wiggle out of it by a constitutional rule that has no basis in the Constitution, requiring me to prove by clear and convincing evidence," Dershowitz said.
"And it will just deter people like me from engaging in free speech. It won't deter me."
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