The U.S. Supreme Court declined to review a defamation ruling of the 11th U.S. Circuit Court of Appeals in Berisha v. Lawson  However, two justices — Clarence Thomas and Neil Gorsuch —dissented from the denial of certiorari and wrote separately, explaining why the Court should review the celebrated decision of New York Times Co. v. Sullivan (1964) and its actual malice standard.

The case involved Guy Lawson’s book, “War Dogs: The True Story of How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History” (2008).  The book later became the movie “War Dogs.”  Lawson’s work explained how three Miami youngsters became international arms dealers who had dealings with the Albanian mafia.  The book identified Shkelzen Berisha as a key figure in the Albanian mafia.  Berisha sued Lawson, alleging defamation.

However, both a federal district court and the 11th Circuit granted summary judgment to Lawson, finding that Berisha failed to prove actual malice – that Lawson acted with knowing falsity or reckless disregard as to the truth or falsity of his statements. 

Berisha sought review in the U.S. Supreme Court, which denied certiorari.  However, Justice Thomas wrote a dissent in which he once again – as he did in McKee v. Cosby (2019) – called for the court to reevaluate the actual malice standard.   “The lack of historical support for this Court’s actual-malice requirement is reason enough to take a second look at the Court’s doctrine,” he wrote.

Justice Gorsuch wrote a separate dissent, reasoning that the time has come to reevaluate Times v. Sullivan.  Gorsuch noted that the media world in 2021 is vastly different than it was in 1964 when Times v. Sullivan was decided.   “It seems that publishing without investigation, fact-checking, or editing has become the optimal criminal strategy,” he wrote.  He also criticized lower courts’ extension of the actual malice standard to a variety of so-called limited purpose public figures.   He warns that the net effect of the Times v. Sullivan decision and its progeny is that it “leave[s] far more people without redress than anyone could have predicted.” 

Dissenting from a denial of certiorari in Coral Ridge Ministries Media, Inc. v. Southern Poverty Law Center, 597 U.S. ____ (2022), Justice Clarence Thomas renewed a call for reconsideration of Sullivan’s actual malice standard for public figures in a case in which the Southern Poverty Law Center had classified a Christian non-profit organization as an “Anti-LGBT hate group” because it believed homosexual conduct to be unbiblical. Thomas characterized the Sullivan decision as a policy-driving decision “masquerading as constitutional law,” and its progeny as bearing “no relation to the text, history, or structure of the Constitution.”

This article was published on July 2, 2021 and updated in 2022. David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), the author of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).

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