The United States Supreme Court won’t hear former casino mogul Steve Wynn’s appeal, bringing to an end his defamation case against the Associated Press and one of its reporters. The justices’ decision to decline the appeal is an important win for the American free press, as Wynn’s appeal hinged on the suggestion that the Court should overturn the “actual malice” standard that has applied to defamation cases since 1964.
Wynn’s legal team lamented the decision, saying:
The fact that media outlets are free to publish demonstrably false stories turns the First Amendment on its head.
In the 1964 case New York Times v. Sullivan and subsequent decisions, US courts have held that a statement can only be defamatory if the speaker or writer knows it to be false, or has recklessly avoided determining whether it is. Although current justices Thomas and Gorsuch have previously expressed the opinion that the standard should change, the Supreme Court has consistently rejected proposals to overturn it.
Wynn’s case dates back to 2018, when the Associated Press published a wire article repeating allegations of sexual assault against the businessman. There were two such claims, both relating to events that allegedly took place in the 1970s. One was subsequently determined to be “clearly fanciful or delusional” in court.
Litigation by and against Wynn and the casino company bearing his name has been ongoing for years. He stepped down as CEO in 2018 amid various accusations of sexual misconduct, which he continues to deny. Wynn Resorts settled an investor class action sparked by the scandal, and some of Wynn’s accusers have attempted to sue him personally. He also paid a $10 million fine and surrendered his Nevada gaming license after a settlement with the state’s regulators.
What is the New York Times v. Sullivan precedent?
The case that produced the “actual malice” principle was a significant one not just in terms of its First Amendment aspects, but also its impact on the civil rights movement of the 1960s.
In 1960, Montgomery police commissioner L.B. Sullivan sued the New York Times for an ad it had published, calling attention to the treatment of civil rights protestors by the city’s law enforcement. The ad contained some factual inaccuracies, and Sullivan sought to hold the paper liable for publishing it without adequate fact-checking.
The state’s county court and Supreme Court ruled against the Times, awarding Sullivan $500,000 in damages, equivalent to almost $5.4 million today. However, the case’s implications for freedom of speech in the press were sufficient to earn an appeal with the federal Supreme Court, which overturned the verdict.
In that 1964 decision, Justice William J. Brennan Jr. wrote that vigorous debate on public issues would inevitably result in some false assertions. To treat “erroneous statements honestly made” as defamatory would have a chilling effect on public debate and run contrary to the protections guaranteed by the First Amendment.
Under that decision, the burden of proof lies with the plaintiff to show that the defendant knew or should reasonably have known that what they were saying or writing was false.
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