Courts

Two Justices Just Signaled — Again — That They Want To Destroy Press Freedom

Using Dershowitz's failed CNN defamation suit as their vehicle, the justices once again called for overturning New York Times v. Sullivan.

By Kathryn Rubino on June 29, 2026 2:32 pm

Once again, Justices Clarence Thomas and Neil Gorsuch have gone to the mat for their attempt to end a truly free press.

The Supreme Court’s orders list this morning included a cert denial that includes a quiet wake-up call for the media. In Dershowitz v. Cable News Network, Inc., Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari to once again call for the overruling of New York Times Co. v. Sullivan… you know, the foundational First Amendment precedent protecting the free press for six decades. Cool cool cool.

The vehicle is Alan Dershowitz, which honestly tracks. We’ve been covering his CNN litigation saga since the jump. Dershowitz sued CNN for $300 million because the network failed to quote a full paragraph of his argument during Trump’s impeachment — his now-infamous claim that presidents can’t be impeached for acts they believe serve their own electoral interests and therefore the national interest. The Eleventh Circuit gave a big ol’ nope to that complaint, so Dershowitz asked the Supreme Court to bail him out by incinerating Sullivan entirely. Thomas and Gorsuch were delighted to help, at least in dissent.

Because Dershowitz is a “public person,” existing precedent required him to prove CNN acted with “actual malice.” He didn’t. Thomas argued the actual malice rule “bears no relation to the text, history, or structure of the Constitution” — the movement’s catechism — and stated he would have granted certiorari to overrule Sullivan outright. Also worth noting, Eleventh Circuit Judge Barbara Lagoa wrote a concurrence in the case below agreeing that Sullivan is constitutionally suspect. Lagoa, you may recall, is a perennial name on Trump SCOTUS shortlists.

This is a hobby horse Thomas has been riding for years, and the repetition is the point. Each dissent is another public invitation to bring him the right case. The intellectual (lol) lineage runs directly through D.C. Circuit Judge Laurence Silberman’s unhinged 2021 dissent, which called on SCOTUS to overturn Sullivan while characterizing major newspapers as “virtually Democratic Party broadsheets.”

And it is a movement. It runs from Trump’s $475 million clownsuit against CNN to Sarah Palin’s defamation crusade to DeSantis’s legislative end-run around the First Amendment to MAGA-aligned billionaires petitioning the Court to two sitting justices openly recruiting the right vehicle to finish the job. As we said in the wake of Dobbs — when people tell you who they are, believe them.

The cert was denied today. Sullivan survives for now. But Thomas and Gorsuch are patient, the lower court judges who share their views keep getting confirmed to the federal bench, and the right vehicle is coming. Every dissent like today’s is a signal flare to litigants: keep trying, keep asking, we’re here.

And if this Court ever grants cert on Sullivan, then the end has arrived. It will be the moment the powerful obtained the right to bankrupt anyone who covers them critically. Reporters, newsrooms, independent journalists — all facing the prospect of ruinous litigation with no actual malice standard to protect them will find it increasingly difficult to hold the feet of the powerful to the fire.

We’ve been sounding this alarm for years, and we’ll keep doing it because the First Amendment without Sullivan is not much more than a hollow artifact.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1