The U.S. Supreme Court on March 24 declined to hear businessman Steve Wynn’s lawsuit that sought 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, a billionaire real estate and casino developer and prominent Republican Party donor, had urged the Supreme Court in his petition to review a Nevada Supreme Court ruling affirming the dismissal of his lawsuit by a state trial court, and to also overturn two key First Amendment precedents.
In New York Times Co. v. Sullivan (1964), the U.S. high court ruled that a news organization cannot be found liable for defamatory statements about a public official unless a plaintiff can prove the 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 all defamation cases involving public figures.
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.”
In the case at hand, Wynn sued in 2018 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 fact-checking, investigating the claims made, or seeking comment from Wynn prior to 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 allegations and “attributed them to a campaign led by his ex-wife.”
Wynn demanded a retraction, AP declined, and Wynn sued in a state-level district court in Nevada.
The district court granted AP’s motion to dismiss in August 2018, finding the article “fairly reported information” from police reports and that the media outlet acted in good faith.
Wynn appealed and the Supreme Court of Nevada reversed, returning 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 court said local police later discovered 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.”
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.
Wynn appealed, and in February 2024 the Supreme Court of Nevada upheld the district court’s ruling.
In the U.S. Supreme Court petition, Wynn argued that Sullivan “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 actual malice test applied in defamation cases involving public figures “is a relatively new feature of libel law” that was articulated in Sullivan. The U.S. Supreme Court made a mistake when it applied the test to public figures in Curtis Publishing, the petition argued.
Meanwhile, Wynn’s attorneys at Pisanelli Bice in Las Vegas said in a statement that reiterated in detail their legal arguments that their client “deserves his day in court—as do all Americans.”
“The fact that media outlets are free to publish demonstrably false stories turns the First Amendment on its head,” the law firm told The Epoch Times.
“The First Amendment is a cherished and fundamental right, but with rights come responsibilities.” AP and its reporter “failed to uphold their responsibility to provide fact-based reporting to its global readership, then published a false allegation in pursuit of media clicks.”
President Donald Trump has said that he wants press protections curbed.
On the campaign trail in 2016, Trump said “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.”
