(CN) — The U.S. Supreme Court on Friday refused to take up a defamation case brought by the son of a former Albanian president, prompting dissenting opinions from conservative Justices Clarence Thomas and Neil Gorsuch urging the court to reconsider protections that make it difficult for public figures to sue for defamation.
Pointing to the changing media landscape, the proliferation of disinformation and conspiracy theories online, and shifting ideas about who qualifies as a “public figure,” Thomas and Gorsuch suggested in separate opinions that the Supreme Court should reconsider the legal precedent requiring proof of actual malice in defamation actions brought by public figures.
In a three-page dissent, Thomas wrote that reconsideration of the legal standard is necessary “because of the doctrine’s real-world effects.”
Citing as an example the “Pizzagate” conspiracy theory which falsely claimed that a Washington, D.C., pizzeria was the headquarters of a Satantic child abuse ring led by former Democratic presidential candidate Hillary Clinton, Thomas wrote, “Public figure or private, lies impose real harm.”
“The proliferation of falsehoods is, and always has been, a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires,” Thomas said.
The high court rejected Shkelzen Berisha’s petition for review of his defamation complaint alleging that Guy Lawson’s 2015 book “War Dogs: The True Story of How Three Stoners From Miami Beach Became the Most Unlikely Gunrunners in History” contained scenes incorrectly identifying him as the man at the center of two major arms-dealing scandals in Albania.
The book, which was adapted into the 2016 film “War Dogs” starring Jonah Hill and Miles Teller, alleged that Berisha was involved in a scheme to sell Chinese ammunition acquired in Albania to the U.S. military for use in the war in Afghanistan.
Berisha sued Lawson and publisher Simon & Schuster in federal court in 2017 in an attempt to force the removal of allegedly defamatory statements from the book.
Last year, the 11th Circuit unanimously upheld a Florida federal judge’s dismissal of the lawsuit. A three-judge panel of the Atlanta-based appeals court ruled that Berisha failed to show that Lawson, his publisher or any of the other defendants in the case acted with actual malice or knowingly published falsehoods about him.
Reiterating a position he previously expressed in the Supreme Court’s 2019 decision in McKee v. Cosby, Thomas wrote Friday that he believes the high court should reexamine the “actual malice” standard which was first established in the court’s landmark 1964 ruling in New York Times v. Sullivan.
The Sullivan decision held that the First Amendment requires proof of actual malice in any defamation action brought by a public official. A 1967 Supreme Court decision in Curtis Publishing Co. v. Butts imposed the same requirement on public figure defamation plaintiffs.
In his appeal to the Supreme Court, Berisha argued that the requirement imposes an “unjustified constitutional barrier to defamation actions at large” and said the actual malice standard should be limited to public officials only.
Gorsuch appeared to agree with Berisha’s argument, writing in an eight-page dissent Friday that the court’s Sullivan precedent contemplated a world in which the actual malice standard would apply only to “a small number of prominent governmental officials whose names were always in the news and whose actions involved the administration of public affairs.”
“Thanks to revolutions in technology, today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world,” Gorsuch wrote.
He added, “In 1964, the court may have seen the actual malice standard as necessary ‘to ensure that dissenting or critical voices are not crowded out of public debate.’ But if that justification had force in a world with comparatively few platforms for speech, it’s less obvious what force it has in a world in which everyone carries a soapbox in their hands.”
Gorsuch also pointed out that ideas around who is a “public figure” have dramatically shifted in recent years as social media allows people to be deemed “famous” overnight.
“Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted,” Gorsuch wrote.
An attorney for Berisha did not immediately respond to a request for comment Friday.
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