Justices Clarence Thomas and Neil Gorsuch question libel protections for the media after Supreme Court declined to take up 'War Dogs' defamation suit appeal

The U.S. Supreme Court on Friday turned away a case challenging libel protections for journalists and media organizations, but conservative justices Clarence Thomas and Neil Gorsuch disagreed with the action and questioned such protections enshrined in a landmark 1964 ruling.

Citing a rapidly changing media environment increasingly rife with disinformation, Thomas and Gorsuch said in separate opinions that the court should take a fresh look at its precedents that make it harder for public figures to sue for defamation.

The court declined to take up an appeal by Shkelzën Berisha, the son of a former Albanian prime minister, concerning his defamation lawsuit over corruption allegations against him made in a 2015 book by author Guy Lawson called 'Arms and the Dudes.' 

The book was turned into the 2016 Hollywood film 'War Dogs' starring Jonah Hill and Miles Teller.

A lower court ruled in favor of Lawson, the book's publisher Simon & Schuster and several other defendants because it determined Berisha was unable to show that allegations of his involvement in an arms-dealing scandal were made with 'actual malice.' 

The U.S. Supreme Court on Friday turned away a case challenging libel protections for journalists and media organizations

Clarence Thomas dissented, saying: ''Public figure or private, lies impose real harm'

Neil Gorsuch also dissented and said justifications for the actual malice standard may be less in an era when technological changes and social media mean that disinformation can be better amplified and more profitable than traditional news with fact-checkers and editors

That standard, which protects against libel suits, involves statements made with knowledge that they were false or with reckless disregard of whether they were true or false.

The standard was established in the court's watershed 1964 ruling in a case called the New York Times v. Sullivan.

Thomas and Gorsuch said the court should have taken the appeal. They said that in today's media environment, actual malice can protect lies instead of truth, with real-world consequences. 

Citing the false 'Pizzagate' conspiracy theory that claimed that a Washington pizzeria was a front for a pedophile ring led by former Democratic presidential candidate Hillary Clinton, Thomas said, 'Public figure or private, lies impose real harm.'

Thomas cited the false 'Pizzagate' conspiracy theory that claimed that a Washington pizzeria was a front for a pedophile ring led by former Democratic presidential candidate Hillary Clinton in his dissent

Thomas previously urged the court two years ago to reconsider its libel precedents when it refused to consider reviving a defamation lawsuit against actor Bill Cosby by a woman named Kathrine McKee who said the entertainer falsely called her a liar after she accused him of rape.

Thomas on Friday mentioned McKee again, saying that 'surely this court should not remove a woman's right to defend her reputation in court simply because she accuses a powerful man of rape.' 

Cosby was released from prison on Wednesday after Pennsylvania's highest court overturned his sexual assault conviction in a separate case.

Thomas added in his dissent that there's a 'lack of historical support for this Court’s actual-malice requirement.'

Gorsuch said justifications for the actual malice standard may be less in an era when technological changes and social media mean that disinformation can be better amplified and more profitable than traditional news with fact-checkers and editors.

'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 said.

Gorsuch added, 'The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy.' 

The court declined to take up an appeal by Shkelzën Berisha, the son of a former Albanian prime minister, concerning his defamation lawsuit over corruption allegations

Berisha sued Lawson and the other defendants in federal court in 2017 over brief passages in Lawson's book, which chronicled how three 'stoner dudes' from Miami Beach scored a $300 million U.S. defense contract in 2006 to supply ammunition to the Afghan military, and sought to fulfill it by procuring weapons from stockpiles in Albania.

The book recounted their dealings with an Albanian government-linked mafia. It placed Berisha in one of the meetings, describing him as having 'dark hair, a soft chin, and sharklike eyes' and accused him of being part of the corrupt arms-dealing cabal.

The three Miami men were eventually convicted in the United States on federal fraud charges.

In 2020, the Atlanta-based 11th U.S. Circuit Court of Appeals tossed the lawsuit. The 11th Circuit found that Berisha could not overcome the U.S. Constitution's First Amendment free speech protections for defendants accused of defamation by public officials or figures as recognized in a line of Supreme Court precedents dating back to New York Times v. Sullivan.

In his appeal to the Supreme Court, Berisha said those precedents should be overturned to limit the actual malice standard to public officials only.