Businessman Steve Wynn is asking the U.S. Supreme Court to roll back protections for journalists in defamation lawsuits.
Defamation is the act of sharing false information about someone that injures his or her reputation. Libel is when the defamation is published, such as in a newspaper. Slander, by contrast, is when the defamation is spoken aloud. A plaintiff must show he or she was harmed by the statement and that the person or entity making it knew it was false.
Wynn argues that the U.S. Supreme Court should review a lower court dismissal of his lawsuit and also overturn two of its key precedents.
In New York Times Co. v. Sullivan (1964), the court ruled a news organization cannot be found liable for defamatory statements about a public official unless a plaintiff can prove statements were made public with actual malice. Actual malice means a defendant knew the statement was false or showed reckless disregard for the truth when making the statement.
In Curtis Publishing Co. v. Butts (1967), the court extended the actual malice requirement to defamation cases involving public figures, meaning people who are “involved in issues in which the public has a justified and important interest.”
The case goes back to 2018 when Wynn, a billionaire real estate developer and Las Vegas casino mogul, sued over an AP news report that cited a police report in which he was accused of rape.
The petition stated that the article was published “without (1) fact-checking the allegations, (2) investigating the allegations, or (3) reaching out to Wynn for a comment before publication.”
The article, which AP said was based on “recently filed” police reports, said two women made allegations about Wynn going back to the 1970s, according to the petition.
“One report shows a woman told police she gave birth to a girl after Wynn raped her at her Chicago apartment around 1973 or 1974. The other says she had consensual sex with Wynn while she worked as a casino dealer at the Golden Nugget but was fired when she told him no in summer 1976,” the petition said, quoting the AP article.
The article said Wynn “vehemently denied the misconduct accusations” and “attributed them to a campaign led by his ex-wife.”
Wynn demanded a retraction and AP declined to provide one. Wynn sued the news organization in a state-level district court in Nevada. AP responded, filing an anti-SLAPP motion to throw out the case.
Anti-SLAPP laws target “strategic lawsuits against public participation,” with the goal of shielding defendants from frivolous litigation.
The district court granted the motion, ruling in August 2018 that the news article “fairly reported information” from the police reports and that AP had acted in good faith.
Wynn appealed and the Supreme Court of Nevada reversed, finding the article was not covered by the fair-report privilege. The court returned the case to the district court to decide “whether Wynn, as a public figure, could demonstrate a probability of prevailing on his defamation claim.”
The district court noted in its decision that local police later discovered that the allegations discussed in the news report “were without merit.” Despite this, AP “could not have known … [the] allegations were false when the article was published and there’s nothing in the record to suggest that [AP] knew or should have known that the allegations were false.”
The court gave Wynn time to substantiate “actual malice to prevail on his defamation claim,” which required him to “show actual malice by clear and convincing evidence.” Wynn didn’t prevail on the merits because “there is nothing in the record to show [AP] published information knowing of its falsehood or that it was established with reckless disregard of the truth,” the court stated.
AP had argued “that their article was a good faith communication in furtherance of the right to free speech in direct connection with an issue of public concern,” the court said.
“Nevada’s anti-SLAPP statutes were designed to limit precisely the type of claim at issue here, which involves a news organization publishing an article in a good faith effort to inform their readers regarding an issue of clear public interest,” the court said.
In the U.S. Supreme Court petition, Wynn argues that court precedent makes it too difficult for a plaintiff in a defamation suit to succeed.
Sullivan is an “ahistorical precedent, divorced from any understanding of the law when the First Amendment was enacted,” Wynn said.
The precedent, he said, “is unfit for the modern era where any person or corporation may, with the push of a button, publish defamatory material for the billions of people around the world to see—defamatory material that, like everything else on the internet, will exist forever.”
The petition also states that the Supreme Court of Nevada misinterpreted that state’s anti-SLAPP statute by making judges “engage in improper fact-finding” and interfere with the functioning of civil court juries, which violates the Seventh Amendment.
Criticism by Justices
Several U.S. Supreme Court justices have criticized the Sullivan ruling, according to the petition.Justice Clarence Thomas said in McKee v. Cosby (2019) that Sullivan should be reexamined because the ruling and decisions “extending it were policy-driven decisions masquerading as constitutional law.”
Justice Neil Gorsuch said in Berisha v. Lawson (2021) that Sullivan should be revisited because the actual malice doctrine has “evolved into a subsidy for published falsehoods on a scale no one could have foreseen” that “leave[s] far more people without redress than anyone could have predicted.”
President Donald Trump has been saying for years that he wants press protections curbed.
On the campaign trail in 2016, Trump said he would “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.”
The Epoch Times reached out to The Associated Press for comment. No reply was received by publication time.
