(Actual) Malice in the Media?
The Eleventh Circuit recently affirmed the district court’s order granting summary judgment in the lawsuit, Dershowitz v. Cable News Network, Inc., No. 23-11270, 2025 WL 2585986 (11th Cir. Aug. 29, 2025). Dershowitz, a law school professor and well-known defense attorney, represented President Trump in January 2020 during his first impeachment trial. Id. at *1. In that role, he spoke twice on the Senate floor, answering questions relating to quid pro quo and arguing that a president cannot be impeached merely for seeking political advantage if the president believes his re-election is in the national interest. Id.
These remarks were quickly criticized and interpreted by various news outlets and on social media. Dershowitz argued that CNN in particular had deliberately misrepresented his remarks, claiming that this portrayal was part of a coordinated scheme to defame him. Id. at 2. The Court applied Florida law, which “requires five elements for a defamation claim: (1) publication; (2) falsity; (3) ‘knowledge or reckless disregard as to the falsity on a matter concerning a public official’; (4) actual damages; and (5) defamatory content.” Id. (citations omitted). Importantly, under the constitutional standard for defamation set in New York Times Co. v. Sullivan, public figures like Dershowitz must prove “actual malice” – that the statements were made with knowledge of falsity or reckless disregard for the truth. 376 U.S. 254, 256, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
The Eleventh Circuit found no evidence that CNN or its commentators acted with actual malice. Dershowitz, at *3. CNN staff testified that they believed their interpretations were accurate, and Dershowitz offered no evidence to the contrary. Id. Internal communications did not show any directive to misrepresent his comments, and the similarity of CNN’s coverage to other outlets supported the view that their reporting reflected sincere, if possibly mistaken, opinions. Id. The Court emphasized that bias or groupthink does not satisfy the high bar of actual malice, which requires clear and convincing evidence of knowing or reckless falsity. Id. at *3-4.
