The Supreme Court on Monday turned down a chance to narrow or even throw out Times v. Sullivan, the 1964 ruling that provides the press with strong protections against libel suits. The court’s action was not entirely surprising, but it was heartening nevertheless.
The would-be challenge came about after former casino mogul Steve Wynn sued The Associated Press, claiming that its reporting on sexual misconduct he had allegedly engaged in during the 1970s was false and defamatory. Because Wynn is a public figure, he would have had to show the AP acted with “actual malice” — that is, that it knew its reporting was false or that it showed “reckless disregard” as to whether it was true or false. Wynn’s lawyers had sought to weaken the actual-malice standard.
By declining to take up Wynn’s appeal, the Supreme Court indicated that no more than three of the nine justices are ready to revisit Times v. Sullivan, since it takes four justices to agree to hear a case. Clarence Thomas has previously written that he would overturn Sullivan in its entirety, while Neil Gorsuch would like to pare it back. Just recently, Brett Kavanaugh, though, went out of his way to affirm his support for Sullivan.
Since the court did not release a vote tally, we have no way of knowing whether or not Thomas and Gorsuch were joined by a third justice, or even if Thomas and Gorsuch themselves were willing to take the case. Perhaps they thought it was a poor vehicle for advancing their anti-Sullivan agenda. It would be nice to know, but that’s not how the court works.
Times v. Sullivan imposed the actual-malice burden only on public officials. Later rulings extended that to public figures. New York Times reporter David Enrich, in his new book, “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful,” warned that the court might be willing to weaken Sullivan. Enrich wrote that “it is not hard to envision the Supreme Court substantially narrowing the scope of who classifies as a public figure or even ruling that the actual malice standard should only apply to government officials.”
Well, not yet, and not now. What will happen if and when a different case comes along is anyone’s guess.
The allegations of sexual misconduct against Wynn were originally reported in 2018 by The Wall Street Journal, which has published an archive of articles. According to the AP, Wynn reached an agreement with Nevada gambling officials in 2023 to exit the casino business and pay a $10 million fine without admitting any wrongdoing.
The Nevada Supreme Court described the AP story that drew Wynn’s ire as “a good-faith effort to inform their readers regarding an issue of clear public interest.”
