Alan Dershowitz's 'intellectual who lost his mind' lawsuit against CNN just died at SCOTUS, and 2 justices had thoughts

Alan Dershowitz's attempt to remake defamation law as we know it, while holding CNN accountable for painting him as an "intellectual who had lost his mind," failed at the Supreme Court on Monday. Still, two justices expressed an interest in reconsidering the "actual-malice standard" in the future.

Justice Clarence Thomas penned a dissent that Justice Neil Gorsuch joined, one that said the high court should have granted Dershowitz's petition for a writ of certiorari.

"The 'actual malice' standard for public figures 'bears 'no relation to the text, history, or structure of the Constitution,'" the dissent said. "I and others have thus called for reconsideration of the actual-malice standard for public figures."

CNN told the Supreme Court in the lead-up to the network's win on Monday that the famed criminal defense attorney and law professor was a "uniquely unfit" person to "force a constitutional showdown" over the First Amendment and the truth is he's lost his defamation case "no matter what."

A brief in opposition urged the justices to see Dershowitz's "real complaint" — that pundits on CNN and elsewhere "misinterpreted" his Ukraine impeachment defense of President Donald Trump in 2020 — was "not an actionable defamation claim," let alone a "vehicle" for overturning the landmark 1964 precedent set by New York Times v. Sullivan.

Pointing out that several other media outlets contemporaneously interpreted his remarks similarly and that the network had Dershowitz on air twice after he "complained about the coverage," CNN's lawyers with Gibson, Dunn & Crutcher LLP and Davis Wright Tremaine LLP said SCOTUS should reject the proposed "drastic curtailment of the press's and public's freedom to discuss the President's arguments for remaining in the highest office in the land."

"[H]e loses under any evidentiary standard because he had no evidence," the brief said, and "his claims masquerade opinions and interpretations as statements of fact."

"Dershowitz cannot paper over these flaws," CNN continued.

During the impeachment trial, Sen. Ted Cruz, R-Texas, asked Dershowitz if it mattered whether there was a quid pro quo, after House Democrats alleged that Trump abused his power by corruptly withholding military aid to Ukraine on the condition that its president announce an investigation into Joe Biden ahead of the 2020 election.

"The only thing that would make a quid pro quo unlawful is if the 'quo' were in some way illegal," Dershowitz began to answer, naming as "three possible motives" for seeking the "quo" the public interest, political self-interest, and financial self-interest.

On "public interest," Dershowitz told Cruz that "[e]very public official that I know believes that his election is in the public interest, and mostly you're right — your election is in the public interest — and 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."

Dershowitz alleged in his complaint that CNN commentary, selective editing, and quote selection knowingly or recklessly put forth a "one-sided and false narrative that Professor Dershowitz believes and argued that as long as the President believes his reelection is in the public interest, that he could do anything at all – including illegal acts – and be immune from impeachment."

That, he said, "falsely" portrayed him as "a constitutional scholar and intellectual who had lost his mind."

Law&Crime has been following the case since it was filed. When Dershowitz asked the justices to grant his petition for a writ of certiorari, following back-to-back losses in district court and the 11th U.S. Circuit Court of Appeals, he repeatedly cited the concurrence of U.S. Circuit Judge Barbara Lagoa, a Trump appointee who agreed that Sullivan meant the $300 million suit had to be dismissed while also offering a separate opinion saying that CNN had "simply lied" about Dershowitz on air. There was nothing to be done in light of Sullivan, Lagoa noted.

Justice Thomas' dissent referenced Lagoa's concurrence when stating the actual-malice standard should be reconsidered.

Among the questions Dershowitz presented to SCOTUS was whether the "actual malice standard established in Sullivan, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures."

On that point, CNN responded that Dershowitz has "courted the notoriety that follows the representation of controversial clients, such as O.J. Simpson, Claus Von Bulow, and President Trump," making him a "uniquely unfit petitioner to force a constitutional showdown over Sullivan."

In addition, CNN said he "ignores a fatal—and glaring—vehicle problem," namely that Florida law independently adopted the same "actual malice" standard.

"No matter what, Dershowitz loses under Florida's parallel actual-malice standard," CNN stated. "This Court should not even contemplate whether to modify Sullivan when the claims 'are independently subject to an actual-malice standard as a matter of state law.'"

Dershowitz's decision to sue and appeal all the way up to SCOTUS shows he was no "hapless private citizen thrust into the public spotlight" when he defended the president of the United States in front of the nation, the network suggested.

"And he even treated the filing of his petition in this Court as an opportunity to rotate the public spotlight back in his direction," the brief said. "Dershowitz's legal arguments inhabit an alternate universe of facts."

"In every way, Dershowitz's position—not Sullivan—is the aberration," CNN added.

Dershowitz previously said that his petition, which included potential outcomes "short" of overturning Sullivan in its entirety, aimed to "create a fairer balance." And he told Law&Crime on Monday that he believes SCOTUS "will eventually accept my position on clear and convincing evidence of malice being too high a barrier."

"It is still true that CNN lied about what I said to the Senate. The lower courts found that. The only barrier was malice," he said.