
Photo: Al Drago/Bloomberg/Getty Images
It’s not often that the U.S. Supreme Court sees a lawsuit that directly invites it to overturn a long-established precedent. So given the overall atmosphere of authoritarianism and Donald Trump’s very specific and long-standing interest in muzzling media criticism, many legal eagles trembled when Las Vegas casino mogul and Trump donor Steve Wynn petitioned the Court to reverse New York Times v. Sullivan, the landmark 1964 decision that insulated the press from libel suits over good-faith criticism of public figures. More specifically, Wynn objected to a Nevada law incorporating the Sullivan standard that requires “clear and compelling evidence” of “actual malice” in libel suits involving public figures. Wynn felt this denied him the right to a jury trial over his claims against the Associated Press for accusing him of sexual misconduct without (he claims) sufficient evidence.
There were signs that at least two Supreme Court justices were ready to take the plunge on a review of Sullivan, as Adam Liptak observed when Wynn’s petition was filed:
Starting in 2019, Justice Clarence Thomas has repeatedly called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark First Amendment decision that made it hard for public officials to prevail in libel suits.
That project gained momentum in 2021, when Justice Neil M. Gorsuch said the decision “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
Certainly, there was interest in the White House in determining if there was now broader interest among Court conservatives for helping the president activate his repeated threats to “open up the libel laws” to enable legal harassment of his media critics. Trump, as is very well known, was famed for using litigation to intimidate and even bankrupt his adversaries long before he ever ran for public office.
But now, the Supreme Court has dismissed Wynn’s petition without dissent or comment. The unanimity was the most surprising development, as MSNBC’s Jordan Rubin explained:
It wasn’t surprising that the court rejected Wynn’s petition. It takes four justices to grant review. What was less clear heading into Monday was whether any of the justices would dissent from the denial. Justices Clarence Thomas and Neil Gorsuch — two of the court’s six GOP-appointed justices — have previously questioned the Sullivan precedent, but they didn’t do so on Monday. That doesn’t mean their views have changed or that the precedent will stay on the books forever as challenges to it continue. But Wynn’s rejection is the latest evidence that it isn’t immediately at risk at the high court.
So it appears Thomas and Gorsuch haven’t made enough progress toward undermining Sullivan among their colleagues to even merit a squawk in this case. This deafening silence represents extraordinarily good news for media folk who have wondered if they will soon get the same sort of harsh treatment being meted out to federal employees and contractors, not to mention noncitizens who thought they had permanent-resident status, at the hands of the second Trump administration. The 47th president may still freak out journalists by singling them out for abuse on Truth Social, and Elon Musk’s vast troll army may menace them on X. But odds are they won’t be hauled into court for saying the emperor has no clothes.