Attorneys for Alan Dershowitz are asking the Supreme Court to reconsider a nearly 62-year-old ruling in a lawsuit against CNN.
The Supreme Court is expected to consider whether to hear the case soon, according to court records. On February 4, the court said the case was distributed for a conference on February 20.
The Supreme Court requested that CNN file a response to Dershowitz's petition for a writ of certiorari on Tuesday. An attorney representing the media outlet waived its right to respond last month.
Newsweek reached out to the counsel of record for CNN and Dershowitz.
The petition asks the court to consider modifying or discarding standards established in New York Times Co. v. Sullivan. The 1964 ruling held that a state cannot award damages to a public official for defamatory falsehood relating to official conduct unless they prove "actual malice," meaning the statement was made knowing that it was false or with reckless disregard of whether it was true or false.
Dershowitz's petition asks the court to consider whether the actual malice standard established in Sullivan should be discarded altogether, "or at least as to private citizens who are public figures."
Attorneys for Dershowitz, a Harvard Law School professor emeritus, alleged that CNN defamed him by broadcasting mischaracterizations of a statement he made on the Senate floor while appearing as counsel for President Donald Trump during impeachment proceedings.
The petition alleged that the media outlet omitted "crucial qualifying language" from Dershowitz's January 29, 2020, statement.
In response to a question from Senator Cruz about a quid pro quo, Dershowitz addressed the constitutional standards for impeachment, according to the petition. He distinguished three categories of presidential conduct: actions motivated by public interest; actions motivated by electoral interest; and actions motivated by "personal pecuniary interest," the petition stated.
Dershowitz said conduct falling into the third category would be "purely corrupt," according to the petition.
"If a hypothetical President of the United States said to a hypothetical leader of a foreign country: Unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds. That is an easy case. That is purely corrupt and in the purely private interest," Dershowitz said in his 2020 statement.
Attorneys for Dershowitz said CNN's characterizations of Dershowitz's comments did not mention his exclusion of "personal pecuniary interest" from his analysis.
"Though CNN indisputably possessed the complete video and transcript of his statement, ... its commentators systematically disregarded the qualifying language that gave Dershowitz's statement its true meaning, attributing to him a position he had expressly rejected: that presidents could engage in any conduct whatsoever, including bribery and extortion, without committing an impeachable offense," Dershowitz's attorneys wrote.
Dershowitz filed suit in the United States District Court for the Southern District of Florida, alleging that he had been defamed under Florida law.
On CNN's motion for summary judgment, the district court ruled in favor of CNN.
Attorneys for Dershowitz said lower courts have held that Sullivan's actual malice standard bars Dershowitz from seeking any remedy.
Jay Alan Sekulow, Jordan A. Sekulow, Stuart J. Roth, Walter M. Weber, Christina A. Compagnone, Benjamin P. Sisney, Geoffrey R. Surtees and Nathan J. Moelker, attorneys for Alan Dershowitz, in a petition for a writ of certiorari: "Indeed, after more than half a century of experience with Sullivan, the time has come for this Court to overrule or limit Sullivan in light of experience and the vastly changed meaning of 'press' in the internet age."
The Supreme Court has not decided whether it will hear the case yet.