The U.S. Supreme Court has refused to hear a case brought by Las Vegas hotelier Steve Wynn that aimed to lessen the standard for libel laws. Had the court taken up the issue, it could have made journalistic reporting on public figures — including the ultrarich and politicians — far more difficult in the future.
Wynn wanted to sue The Associated Press over reporting it published in 2018, which included statements from women claiming he had sexually assaulted them. Wynn denies the accusations.
For his lawsuit to have been successful, the billionaire hotelier, being a well-known public figure, would have had to prove that there was “actual malice” on the part of The AP — a standard that requires him to demonstrate that the publication was reckless in its reporting, printing statements it knew were lies or without doing their due diligence to discern if they were true.
That standard was created by the Supreme Court in a 1964 decision called New York Times v. Sullivan, the case that Wynn wanted the court to reexamine. On Monday, the court issued a denial of Wynn’s writ of certiorari request, offering no reason for their refusal to take up the case.
At least four justices must vote in favor of such a writ for the case to advance. The court’s denial in this instance means that only three or fewer justices were willing to do so.
Had Wynn’s case moved forward and been successful at changing the Sullivan standard, it would have had huge implications for how media could report on important figures. Notably, Wynn is a huge donor to Republican causes — including to President Donald Trump, who has argued for years that the Sullivan standard should be obliterated.
In 2016, for example, as a candidate for president, Trump frequently derided factual and evidence-based reporting on him as “fake news.”
“I’m going to open up our libel laws, so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Trump said at the time. “We’re going to open up those libel laws, so that when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money.”
Trump has maintained that viewpoint, stating as recently as this month that he wants critical reporting on him, largely made possible by the Sullivan standard, to end. Said Trump:
These [news] networks and these newspapers are really no different than a highly paid political operative. And it has to stop. It has to be illegal. It’s influencing judges, and it’s entered — it’s really changing law, and it just cannot be legal. I don’t believe it’s legal.
Although the Supreme Court has rejected Wynn’s challenge to the established precedent, Trump and his allies will likely continue pressing the court to upend it, as at least two justices have signaled their willingness to reconsider the standard.
The Supreme Court rejected a similar case in 2022 that tried to change the “actual malice” rule — but that time around, Justice Clarence Thomas penned a dissent to the denial of the court’s writ of certiorari.
“I would grant certiorari in this case to revisit the ‘actual malice’ standard,” Thomas wrote at the time. “This case is one of many showing how [Sullivan] and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.'”
Thomas has been open about his desire to revisit the Sullivan ruling before, in dissents in 2021 and 2019. Justice Neil Gorsuch has also expressed support for reexamining the standard, joining with Thomas in 2021 to say so.
First Amendment experts have stated that the continuation of Sullivan is imperative to protecting a free press in the U.S.
“The actual malice standard … exists to give even more breath when you’re talking about famous people, people with power in government, or people just with more power in society,” Freedom Forum vice president Kevin Goldberg previously told Axios. “The bar is intentionally high to dissuade people from ever filing these lawsuits.”
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