Steve Wynn Asks Supreme Court To Gut Key First Amendment Standard

Free Speech

from the the-attack-on-speech-continues dept

Billionaires are already deleting parts of our government, as well as various safety mechanisms on the internet that sought to minimize hate and abuse. Do we also want them to be able to rewrite our understanding of the First Amendment?

Steve Wynn’s latest Supreme Court petition represents a dangerous escalation in the ongoing assault on press freedom and the First Amendment. While self-proclaimed free speech warriors claim to champion unfettered expression, their actions reveal a different agenda: securing immunity from criticism while maintaining the power to silence their critics through legal intimidation.

The weapon of choice? Dismantling New York Times v. Sullivan, the Supreme Court decision that has protected robust public debate for sixty years.

This attack on Sullivan is just one prong of a broader assault on free speech. The same powerful figures who demand unrestricted platforms to spread misinformation and bigotry are simultaneously working to silence their critics through legal intimidation. Their strategy is clear: reshape social media and communication platforms to amplify their preferred speech while using litigation to crush dissenting voices.

The goal isn’t free speech — it’s controlled speech.

For decades, NY Times v. Sullivan has stood as the primary bulwark against wealthy individuals using defamation lawsuits to silence their critics. Decided in 1964, it represents the Supreme Court’s most important attempt to resolve a fundamental tension: It is that case where the Supreme Court had to finally confront the inherent conflict between the First Amendment’s prohibition on any law that inhibits speech, against the long-standing tradition of defamation laws that that… inhibit speech.

The Court’s solution was elegant but hinged on an unfortunately named concept: “actual malice.” Despite its inflammatory name, the standard has nothing to do with ill will or hatred. Instead, it creates a simple test: public figures can only win defamation cases if they prove the speaker either knew their statement was false or showed “reckless disregard” for its truth.

This high bar serves a crucial purpose. Minor factual errors, differences of interpretation, or even heated rhetoric about public figures aren’t enough to trigger liability. Only deliberate lies or statements made while willfully ignoring clear evidence of falsity can qualify as defamation. And plaintiffs have the burden of proving that the defendant knew that it was a lie when they published or spoke.

This has been a cornerstone of US free speech for sixty years. It makes tremendous sense once you understand it, as it means that defamation of a public figure can really only stand if the speaker was deliberately seeking to lie about the target of the defamation.

Without that, you would get the kind of case that NYT v. Sullivan was about in the first place: one where minor factual errors, or even disagreements of interpretation, might lead to full-blown (costly) defamation cases that would not just be ruinous to defendants, but would create massive chilling effects that lead them to silence concerns and choose not to speak up about the rich and the powerful, who can file frivolous lawsuits with wild abandon.

This is precisely why the wealthy and powerful are now gunning for Sullivan. The ruling stands between them and their ability to weaponize defamation law against critics. And billionaire Steve Wynn’s latest Supreme Court petition represents their most direct attack yet.

The case emerged from Wynn’s attempts to silence reporting about his alleged misconduct going back decades. In 2018, as a prominent casino magnate and Republican megadonor, Wynn faced serious accusations. The WSJ had a big expose accusing him of a wide variety of harassment and sexual abuse. A few months later both the Las Vegas Review-Journal and Reuters reported on police files in Las Vegas, in which there were claims of sexual assault by Wynn dating back to the 1970s.

Rather than address the substance of these reports, Wynn turned to the courts, suing the Associated Press and reporter Regina Garcia Cano for defamation.

Wynn’s legal strategy revealed exactly why Sullivan is so crucial. His entire case hung on a single text message where Cano called one of the police reports “crazy” — which Wynn claimed proved she doubted its truth. But as the Nevada Supreme Court recognized in two separate rulings, calling something “crazy” doesn’t prove the reporter thought it was false — it might simply reflect the shocking nature of the allegations.

The case was dismissed under Nevada’s anti-SLAPP law, with the court delivering a forceful defense of both Sullivan and anti-SLAPP protections:

In designing its anti-SLAPP statutes, Nevada recognized the essential role of the First Amendment rights to petition the government for a redress of grievances and to free speech, and the danger posed by civil claims aimed at chilling the valid exercise of those rights. 1997 Nev. Stat., ch. 387, at 1363-64 (preamble to bill enacting anti-SLAPP statutes). To limit that chilling effect, the statutes provide defendants with an opportunity —through a special motion to dismiss— to obtain an early and expeditious resolution of a meritless claim for relief that is based on protected activity

The court systematically dismantled Wynn’s arguments, explaining that neither the “implausibility” of allegations nor a reporter’s desire to publish quickly amounts to “actual malice.” Most importantly, it recognized that allowing such weak evidence to support defamation claims would effectively gut press freedom.

Wynn argues that the Chicago complaint was implausible and points to the failure by AP Respondents to investigate further before publishing as evidence of actual malice. Again, while the complaint contained unusual elements, that does not mean that the gist of the allegations reported by AP Respondents—that Wynn sexually assaulted a woman in Chicago in the 1970s—was untrue or that AP Respondents should have held serious doubt about those allegations. As explained, because all identifying information in the complaint was redacted, it was not possible to meaningfully investigate further as long as that information was unknown. Wynn again points to Garcia Cano’s text describing the complaint as “crazy” to establish her subjective doubt. But calling the complaint “crazy” is not clear and convincing evidence that Garcia Cano believed it to be false or that she recklessly disregarded whether it was true. Wynn also attempts to establish reckless disregard by highlighting AP Respondents’ motivation to publish the story quickly. But news organizations often have a motivation to publish stories before their competitors, and in the absence of serious doubt regarding the veracity of the statement, such a desire does not establish a reckless disregard for the truth

Having lost in state court, Wynn has now made his real objective clear: He wants the Supreme Court to just wipe out NYT v. Sullivan entirely:

In New York Times Co. v. Sullivan, this Court “overturn[ed] 200 years of libel law” to constitutionalize an actual-malice standard for public-official defamation plaintiffs. This Court extended this actual-malice innovation to public figures in Curtis Publishing Co. v. Butts.

Compelled by this Court’s constitutional decisions in Sullivan and Curtis Publishing Co., States, like Nevada, have incorporated the actual-malice standard into their anti-SLAPP statutes. As a result, those States require public figure plaintiffs to prove the merits of their case— including actual malice—before any discovery occurs (or with only “limited” discovery). State courts are split over the application of the actual-malice standard’s clear and convincing evidence burden to public figure plaintiffs in anti-SLAPP cases and whether it violates a plaintiff’s right to a civil jury trial.

These are the questions presented:

Whether this Court should overturn Sullivan’s actual-malice standard or, at a minimum, overrule Curtis Publishing Co.’s expansion of it to public figures.

Should this Court decline to overturn or otherwise cabin Sullivan and Curtis Publishing Co., whether the Seventh Amendment’s right to a civil jury trial is incorporated against the States and, if yes, whether the application of the clear-and-convincing actual-malice standard at the early anti-SLAPP stage of litigation violates a plaintiff’s Seventh Amendment right to a civil jury trial.

Wynn’s petition represents the most direct assault yet on press freedom in America. If successful, it would demolish the constitutional guardrails that have protected journalism for six decades. But the timing isn’t accidental.

Several current Supreme Court justices have been laying the groundwork for this moment. Justice Clarence Thomas has repeatedly signaled his hostility to Sullivan, repeatedly using Supreme Court orders lists as a personal blog to argue for Sullivan’s demise. Justice Gorsuch has joined this chorus at times, and all signs suggest Justice Alito would be sympathetic to their position.

The other issue is that this particular Supreme Court has been way more willing to (1) completely upend “settled” Supreme Court precedents, and (2) increasingly willing to cherry pick out-of-context arguments as ignorant amateur historians, to pretend that they can justify some barbaric practice as consistent with how things were at the time the Constitution was written.

Hell, given that duels were still common at the time of the First Amendment, I half expect the Court to argue that duels are a perfectly acceptable response to impudent language.

Normally, such a case would be a non-starter. This is widely settled law. While Justice Scalia had whined about the NYT v. Sullivan for years, there was no sense that anyone would legitimately try to overturn it.

While it’s unclear whether four justices will vote to hear the case, or whether five would vote to overturn Sullivan, the mere possibility should alarm anyone who values investigative journalism and robust public debate. A victory for Wynn would hand the wealthy and powerful their ultimate weapon: the ability to silence critics through ruinous litigation, regardless of the truth of their reporting.

The attack on Sullivan isn’t just about one billionaire’s grudge. It’s part of a broader campaign to reshape the First Amendment into a tool for protecting power rather than speaking truth to it.

Filed Under: 1st amendment, actual malice, anti-slapp, clarence thomas, defamation, free speech, nevada, nyt v. sullivan, steve wynn, supreme court