Berisha v. Lawson ( 2021 )

Cite as: 594 U. S. ____ (2021) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
SHKELZEN BERISHA v. GUY LAWSON, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 20–1063. Decided July 2, 2021
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, dissenting from the denial of certiorari.
In 2015, Guy Lawson published a book detailing the “true
story” of how three Miami youngsters became international
arms dealers. 973 F. 3d 1304, 1306 (CA11 2020). A central
plot point involves the protagonists’ travels to Albania and
subsequent run-ins with the “Albanian mafia,” a key figure
of which, the book claims, is petitioner Shkelzen Berisha.
The book performed well, and Lawson eventually sold the
movie rights to Warner Bros., which made the feature film
War Dogs.
Unhappy with his portrayal, Berisha sued Lawson for
defamation under Florida law. According to Berisha, he is
not associated with the Albanian mafia—or any dangerous
group—and Lawson recklessly relied on flimsy sources to
contend that he was.
The District Court granted summary judgment in favor
of Lawson. Setting aside questions of truth or falsity, the
court simply asked whether Berisha is a “public figure.”
Why? Because under this Court’s First Amendment juris-
prudence, public figures cannot establish libel without
proving by clear and convincing evidence that the defend-
ant acted with “ ‘actual malice’ ”—that is with knowledge
that the published material “was false or with reckless dis-
regard of whether it was false.” New York Times Co. v. Sul-
livan, 376 U. S. 254, 280 (1964); accord, Gertz v. Robert
Welch, Inc., 418 U. S. 323, 334–335, 342 (1974); Curtis Pub-
2 BERISHA v. LAWSON
THOMAS, J., dissenting
lishing Co. v. Butts, 388 U. S. 130, 155 (1967). After con-
cluding that Berisha is a public figure (or at least is one for
purposes of Albanian weapons-trafficking stories), the court
found that he had not satisfied this high standard. The
Eleventh Circuit affirmed.
Berisha now asks this Court to reconsider the “actual
malice” requirement as it applies to public figures. As I ex-
plained recently, we should. See McKee v. Cosby, 586 U. S.
___, ___ (2019) (opinion concurring in denial of certiorari)
(slip op., at 2).
This Court’s pronouncement that the First Amendment
requires public figures to establish actual malice bears “no
relation to the text, history, or structure of the Constitu-
tion.” Tah v. Global Witness Publishing, Inc., 991 F. 3d 231,
251 (CADC 2021) (Silberman, J., dissenting) (emphasis de-
leted). In fact, the opposite rule historically prevailed:
“[T]he common law deemed libels against public figures to
be . . . more serious and injurious than ordinary libels.”
McKee, 586 U. S., at ___ (opinion of THOMAS, J.) (slip op., at
7).
The Court provided scant explanation for the decision to
erect a new hurdle for public-figure plaintiffs so long after
the First Amendment’s ratification. In Gertz, for example,
the Court reasoned that public figures are fair targets be-
cause “they invite attention and comment.” 418 U. S., at
345. That is, “public officials and public figures have vol-
untarily exposed themselves to increased risk of injury from
defamatory falsehood.” Ibid. But it is unclear why expos-
ing oneself to an increased risk of becoming a victim neces-
sarily means forfeiting the remedies legislatures put in
place for such victims. And, even assuming that it is some-
times fair to blame the victim, it is less clear why the rule
still applies when the public figure “has not voluntarily
sought attention.” 378 F. Supp. 3d 1145, 1158 (SD Fla.
2018); see also Rosanova v. Playboy Enterprises, Inc., 580
F. 2d 859, 861 (CA5 1978) (“It is no answer to the assertion
Cite as: 594 U. S. ____ (2021) 3
THOMAS, J., dissenting
that one is a public figure to say, truthfully, that one doesn’t
choose to be”).
The lack of historical support for this Court’s actual-mal-
ice requirement is reason enough to take a second look at
the Court’s doctrine. Our reconsideration is all the more
needed because of the doctrine’s real-world effects. Public
figure or private, lies impose real harm. Take, for instance,
the shooting at a pizza shop rumored to be “the home of a
Satanic child sex abuse ring involving top Democrats such
as Hillary Clinton,” Kennedy, ‘Pizzagate’ Gunman Sen-
tenced to 4 Years in Prison, NPR (June 22, 2017),
www.npr.org / section / thetwo-way / 2017 / 06 / 22 / 533941689/
pizzagate-gunman-sentenced-to-4-years-in-prison. Or con-
sider how online posts falsely labeling someone as “a thief,
a fraudster, and a pedophile” can spark the need to set up
a home-security system. Hill, A Vast Web of Vengeance,
N. Y. Times (Jan. 30, 2021), www.nytimes.com/2021/01/30/
technology/change-my-google-results.html. Or think of
those who have had job opportunities withdrawn over false
accusations of racism or anti-Semitism. See, e.g., Wemple,
Bloomberg Law Tried To Suppress Its Erroneous Labor
Dept. Story, Washington Post (Sept. 6, 2019), www.
washingtonpost.com / opinions / 2019 / 09 / 06 / bloomberg-law-
tried-suppress-its-erroneous-labor-dept-story. Or read
about Kathrine McKee—surely this Court should not re-
move a woman’s right to defend her reputation in court
simply because she accuses a powerful man of rape. See
McKee, 586 U. S., at ___–___ (opinion of THOMAS, J.) (slip
op., at 1–2).
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. I would grant certiorari.
Cite as: 594 U. S. ____ (2021) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
SHKELZEN BERISHA v. GUY LAWSON, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 20–1063. Decided July 2, 2021
JUSTICE GORSUCH, dissenting from the denial of certio-
rari.
The Bill of Rights protects the freedom of the press not as
a favor to a particular industry, but because democracy can-
not function without the free exchange of ideas. To govern
themselves wisely, the framers knew, people must be able
to speak and write, question old assumptions, and offer new
insights. “If a nation expects to be ignorant and free . . . it
expects what never was and never will be. . . . There is no
safe deposit for [liberty] but with the people . . . [w]here the
press is free, and every man able to read.” Letter from T.
Jefferson to C. Yancey (Jan. 6, 1816), in 10 The Writings of
Thomas Jefferson 4 (P. Ford ed. 1899).
Like most rights, this one comes with corresponding du-
ties. The right to due process in court entails the duty to
abide the results that process produces. The right to speak
freely includes the duty to allow others to have their say.
From the outset, the right to publish was no different. At
the founding, the freedom of the press generally meant the
government could not impose prior restraints preventing
individuals from publishing what they wished. But none of
that meant publishers could defame people, ruining careers
or lives, without consequence. Rather, those exercising the
freedom of the press had a responsibility to try to get the
facts right—or, like anyone else, answer in tort for the inju-
ries they caused.
This principle extended far back in the common law and
far forward into our Nation’s history. As Blackstone put it,
2 BERISHA v. LAWSON
GORSUCH, J., dissenting
“[e]very freeman has an undoubted right to lay what senti-
ments he pleases before the public,” but if he publishes
falsehoods “he must take the consequence of his own temer-
ity.” 4 W. Blackstone, Commentaries on the Laws of Eng-
land 151–152 (1769). Or as Justice Story later explained,
“the liberty of the press do[es] not authorize malicious and
injurious defamation.” Dexter v. Spear, 7 F. Cas. 624 (No.
3,867) (CC RI 1825).
This was “[t]he accepted view” in this Nation for more
than two centuries. Herbert v. Lando, 441 U. S. 153, 158–
159, and n. 4 (1979). Accordingly, “from the very founding”
the law of defamation was “almost exclusively the business
of state courts and legislatures.” Gertz v. Robert Welch,
Inc., 418 U. S. 323, 369–370 (1974) (White, J., dissenting).
As a rule, that meant all persons could recover damages for
injuries caused by false publications about them. See Kur-
land, The Original Understanding of the Freedom of the
Press Provision of the First Amendment, 55 Miss. L. J. 225,
234–237 (1985); J. Baker, An Introduction to English Legal
History 474–475 (5th ed. 2019); Epstein, Was New York
Times v. Sullivan Wrong? 53 U. Chi. L. Rev. 782, 801–802
(1986); Peck v. Tribune Co., 214 U. S. 185, 189 (1909).
This changed only in 1964. In New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), this Court declared that
public officials could no longer recover for defamation as
everyone had for centuries. Now, public officials could pre-
vail only by showing that an injurious falsehood was pub-
lished with “ ‘actual malice.’ ” Id., at 279–280. Three years
later, the Court extended its actual malice standard from
“public officials” in government to “public figures” outside
government. See generally Curtis Publishing Co. v. Butts,
388 U. S. 130 (1967). Later still, the Court cast the net even
wider, applying its new standard to those who have
achieved “pervasive fame or notoriety” and those “limited”
public figures who “voluntarily injec[t]” themselves or are
“drawn into a particular public controversy.” Gertz, 418
Cite as: 594 U. S. ____ (2021) 3
GORSUCH, J., dissenting
U. S., at 351. The Court viewed these innovations “over-
turning 200 years of libel law” as “necessary to implement
the First Amendment interest in ‘uninhibited, robust, and
wide-open’ debate on public issues.” Dun & Bradstreet, Inc.
v. Greenmoss Builders, Inc., 472 U. S. 749, 766 (1985)
(White, J., concurring in judgment).
Since 1964, however, our Nation’s media landscape has
shifted in ways few could have foreseen. Back then, build-
ing printing presses and amassing newspaper distribution
networks demanded significant investment and expertise.
See Logan, Rescuing Our Democracy by Rethinking New
York Times Co. v. Sullivan, 81 Ohio St. L. J. 759, 794 (2020)
(Logan). Broadcasting required licenses for limited air-
waves and access to highly specialized equipment. See ibid.Comparatively large companies dominated the press, often
employing legions of investigative reporters, editors, and
fact-checkers. See id., at 794–795. But “[t]he liberty of the
press” has never been “confined to newspapers and period-
icals”; it has always “comprehend[ed] every sort of publica-
tion which affords a vehicle of information and opinion.”
Lovell v. City of Griffin, 303 U. S. 444, 452 (1938); see also
Sentelle, Freedom of the Press: A Liberty for All or a Privi-
lege for a Few? 2013 Cato S. Ct. Rev. 15, 30–34. And thanks
to revolutions in technology, today virtually anyone in this
country can publish virtually anything for immediate con-
sumption virtually anywhere in the world. Logan 803 (not-
ing there are 4 billion active social media users worldwide).
The effect of these technological changes on our Nation’s
media may be hard to overstate. Large numbers of news-
papers and periodicals have failed. See Grieco, Pew
Research Center, Fast Facts About the Newspaper Indus-
try’s Financial Struggles as McClatchy Files for Bank-
ruptcy (Feb. 14, 2020), http://www.pewresearch.org/fact
-tank/2020/02/14/fast-facts-about-the-newspaper-industrys
-financial-struggles/. Network news has lost most of its
viewers. Pew Research Center, Network Evening News
4 BERISHA v. LAWSON
GORSUCH, J., dissenting
Ratings (Mar. 13, 2006), https://www.journalism.org/
numbers/network-evening-news-ratings/. With their fall
has come the rise of 24-hour cable news and online media
platforms that “monetize anything that garners clicks.” Lo-
gan 800. No doubt, this new media world has many vir-
tues—not least the access it affords those who seek infor-
mation about and the opportunity to debate public affairs.
At the same time, some reports suggest that our new media
environment also facilitates the spread of disinformation.
Id., at 804. A study of one social network reportedly found
that “falsehood and rumor dominated truth by every metric,
reaching more people, penetrating deeper . . . and doing so
more quickly than accurate statements.” Id., at 804, n. 302;
see Vosoughi, Roy, & Aral, The Spread of True and False
News Online, Science Magazine, Mar. 9, 2018, pp. 1146–
1151. All of which means that “the distribution of disinfor-
mation”—which “costs almost nothing to generate”—has
become a “profitable” business while “the economic model
that supported reporters, fact-checking, and editorial over-
sight” has “deeply erod[ed].” Logan 800.
It’s hard not to wonder what these changes mean for the
law. 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.” Brief in Oppo-
sition 22. 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. Surely, too, the Court in 1964 may
have thought the actual malice standard justified in part
because other safeguards existed to deter the dissemination
of defamatory falsehoods and misinformation. Logan 794–
795. In that era, many major media outlets employed fact-
checkers and editors, id., at 795, and one could argue that
most strived to report true stories because, as “the public
gain[ed] greater confidence that what they read [wa]s true,”
they would be willing to “pay more for the information so
Cite as: 594 U. S. ____ (2021) 5
GORSUCH, J., dissenting
provided,” Epstein, 53 U. Chi. L. Rev., at 812. Less clear is
what sway these justifications hold in a new era where the
old economic model that supported reporters, fact-checking,
and editorial oversight is disappearing.
These questions lead to other even more fundamental
ones. When the Court originally adopted the actual malice
standard, it took the view that tolerating the publication of
some false information was a necessary and acceptable cost
to pay to ensure truthful statements vital to democratic
self-government were not inadvertently suppressed. See
Sullivan, 376 U. S., at 270–272. But over time the actual
malice standard has evolved from a high bar to recovery
into an effective immunity from liability. Statistics show
that the number of trials involving defamation, privacy, and
related claims based on media publications has declined dra-
matically over the past few decades: In the 1980s there were
on average 27 per year; in 2017 there were 3. Logan 808–
810 (surveying data from the Media Law Resource Center).
For those rare plaintiffs able to secure a favorable jury ver-
dict, nearly one out of five today will have their awards
eliminated in post-trial motions practice. Id., at 809. And
any verdict that manages to make it past all that is still
likely to be reversed on appeal. Perhaps in part because
this Court’s jurisprudence has been understood to invite ap-
pellate courts to engage in the unusual practice of revisiting
a jury’s factual determinations de novo, it appears just 1 of
every 3 jury awards now survives appeal. Id., at 809–810.
The bottom line? It seems that publishing without inves-
tigation, fact-checking, or editing has become the optimal
legal strategy. See id., at 778–779. Under the actual malice
regime as it has evolved, “ignorance is bliss.” Id., at 778.
Combine this legal incentive with the business incentives
fostered by our new media world and the deck seems
stacked against those with traditional (and expensive) jour-
nalistic standards—and in favor of those who can dissemi-
6 BERISHA v. LAWSON
GORSUCH, J., dissenting
nate the most sensational information as efficiently as pos-
sible without any particular concern for truth. See ibid.
What started in 1964 with a decision to tolerate the occa-
sional falsehood to ensure robust reporting by a compara-
tive handful of print and broadcast outlets has evolved into
an ironclad subsidy for the publication of falsehoods by
means and on a scale previously unimaginable. Id., at 804.
As Sullivan’s actual malice standard has come to apply in
our new world, it’s hard not to ask whether it now even
“cut[s] against the very values underlying the decision.”
Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc.
Inquiry 197, 207 (1993) (reviewing A. Lewis, Make No Law:
The Sullivan Case and the First Amendment (1991)). If en-
suring an informed democratic debate is the goal, how well
do we serve that interest with rules that no longer merely
tolerate but encourage falsehoods in quantities no one could
have envisioned almost 60 years ago?
Other developments raise still more questions. In 1964,
the Court may have thought the actual malice standard
would apply only to a small number of prominent govern-
mental officials whose names were always in the news and
whose actions involved the administration of public affairs.
Here again, the Court may have thought that allowing
some falsehoods about these persons and topics was an ac-
ceptable price to pay to ensure truthful statements vital to
democratic self-government were not inadvertently sup-
pressed. Perhaps the Court weighed the costs and benefits
similarly when it extended the actual malice standard to
the “pervasively famous” and “limited purpose public fig-
ures.”
But today’s world casts a new light on these judgments
as well. Now, private citizens can become “public figures”
on social media overnight. Individuals can be deemed “fa-
mous” because of their notoriety in certain channels of our
now-highly segmented media even as they remain un-
known in most. See, e.g., Hibdon v. Grabowski, 195 S. W.
Cite as: 594 U. S. ____ (2021) 7
GORSUCH, J., dissenting
3d 48, 59, 62 (Tenn. App. 2005) (holding that an individual
was a limited-purpose public figure in part because he “en-
tered into the jet ski business and voluntarily advertised on
the news group rec.sport.jetski, an Internet site that is ac-
cessible worldwide”). Lower courts have even said that an
individual can become a limited purpose public figure
simply by defending himself from a defamatory statement.
See Berisha v. Lawson, 973 F. 3d 1304, 1311 (CA11 2020).
Other persons, such as victims of sexual assault seeking to
confront their assailants, might choose to enter the public
square only reluctantly and yet wind up treated as limited
purpose public figures too. See McKee v. Cosby, 586 U. S.
___, ___ (2019) (THOMAS, J., concurring in denial of certio-
rari) (slip op., at 1). In many ways, it seems we have arrived
in a world that dissenters proposed but majorities rejected
in the Sullivan line of cases—one in which, “voluntarily or
not, we are all public [figures] to some degree.” Gertz, 418
U. S., at 364 (Brennan, J., dissenting) (brackets and inter-
nal quotation marks omitted).
Again, it’s unclear how well these modern developments
serve Sullivan’s original purposes. Not only has the doc-
trine 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 pre-
dicted. And the very categories and tests this Court in-
vented and instructed lower courts to use in this area—
“pervasively famous,” “limited purpose public figure”—
seem increasingly malleable and even archaic when almost
anyone can attract some degree of public notoriety in some
media segment. Rules intended to ensure a robust debate
over actions taken by high public officials carrying out the
public’s business increasingly seem to leave even ordinary
Americans without recourse for grievous defamation. At
least as they are applied today, it’s far from obvious
whether Sullivan’s rules do more to encourage people of
8 BERISHA v. LAWSON
GORSUCH, J., dissenting
goodwill to engage in democratic self-governance or discour-
age them from risking even the slightest step toward public
life.
“In a country like ours, where the people . . . govern them-
selves through their elected representatives, adequate in-
formation about their government is of transcendent im-
portance.” Dun & Bradstreet, 472 U. S., at 767 (White, J.,
concurring in judgment). Without doubt, Sullivan sought
to promote that goal as the Court saw the world in 1964.
Departures from the Constitution’s original public meaning
are usually the product of good intentions. But less clear is
how well Sullivan and all its various extensions serve its
intended goals in today’s changed world. Many Members of
this Court have raised questions about various aspects of
Sullivan. See, e.g., McKee, 586 U. S., at ___ (opinion of
THOMAS, J.); Coughlin v. Westinghouse Broadcasting & Ca-
ble, Inc., 476 U. S. 1187 (1986) (Burger, C. J., joined by
Rehnquist, J., dissenting from denial of certiorari); Gertz,
418 U. S., at 370 (White, J., dissenting); Rosenbloom v.
Metromedia, Inc., 403 U. S. 29, 62 (1971) (Harlan, J., dis-
senting); id., at 78 (Marshall, J., dissenting); Rosenblatt v.
Baer, 383 U. S. 75, 92–93 (1966) (Stewart, J., concurring);
see also Kagan, 18 L. & Soc. Inquiry, at 205, 209; Lewis &
Ottley, New York Times v. Sullivan at 50, 64 De Paul
L. Rev. 1, 35–36 (2014) (collecting statements from Justice
Scalia). JUSTICE THOMAS does so again today. In adding
my voice to theirs, I do not profess any sure answers. I am
not even certain of all the questions we should be asking.
But given the momentous changes in the Nation’s media
landscape since 1964, I cannot help but think the Court
would profit from returning its attention, whether in this
case or another, to a field so vital to the “safe deposit” of our
liberties.