The Volokh Conspiracy
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Alan Dershowitz's Libel Case Over CNN's Coverage of His Defense in Trump Impeachment Thrown Out
"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."
From Dershowitz v. CNN, Inc., decided Friday by Eleventh Circuit Judge Britt Grant, joined by Judges Barbara Lagoa and Charles Wilson:
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 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….
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.
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 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. 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.'"
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 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.
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….
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.
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.
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 have explained, the question is not whether they disliked Dershowitz, Trump, or both; it is whether they knew their statements were false. 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….
Judges Lagoa and Wilson added their own concurrences (which I'll blog about separately) discussing whether the Court should overrule New York Times v. Sullivan (yes, said Judge Lagoa; no, said Judge Wilson). But they both agreed that the panel had to apply Sullivan in this case.
Katherine M. Bolger, Abigail Everdell, Eric J. Feder, Raphael Holoszyc-Pimentel, Amanda B. Levine, and Hilary Oran (Davis Wright Tremaine, LLP) and Eric C. Edison and George Stephen LeMieux (Gunster Yoakley & Stewart, PA) represent plaintiff.
