“Groupthink Is Not Actual Malice”: Eleventh Circuit Clarifies the Evidentiary Threshold for Public-Figure Defamation in Dershowitz v. CNN

Introduction

In Alan M. Dershowitz v. Cable News Network, Inc., the Eleventh Circuit affirmed summary judgment for CNN in a high-profile defamation suit arising from CNN’s coverage of Alan Dershowitz’s remarks during President Donald J. Trump’s first impeachment trial. The decision reiterates the demanding “actual malice” standard for public figures and delivers a notable clarification: evidence of editorial consensus, internal disparaging remarks, or corporate meetings—without proof that individual speakers subjectively doubted their statements—does not satisfy actual malice. The Court’s opinion also provides a useful contrast with its recent ruling in Project Veritas v. CNN, identifying the kinds of contradictions and knowledge that can support an actual malice finding.

Unusually, the panel issued two extensive concurrences pulling in opposite directions on the continued vitality of New York Times v. Sullivan: Judge Lagoa urged reconsideration of Sullivan on originalist grounds; Judge Wilson defended Sullivan under stare decisis, reliance interests, and First Amendment policy. The result is a published opinion that both refines Eleventh Circuit defamation doctrine and spotlights the national debate over Sullivan’s foundations.

Summary of the Judgment

• The Eleventh Circuit (Judge Grant, joined by Judges Lagoa and Wilson) affirmed summary judgment for CNN.
• Applying Florida law and the constitutional “actual malice” standard, the Court held that Dershowitz—concededly a public figure—offered no evidence that CNN’s speakers knew their statements were false or acted with reckless disregard for the truth.
• Critical holdings and clarifications:
  • Internal emails showing negative sentiment or shorthand characterizations, and high-level editorial calls summarizing the day’s “takeaways,” did not show that specific commentators doubted the truth of their statements.
  • Similarity of coverage across commentators and outlets reflects “ideological lockstep” or “groupthink,” which the Court expressly said is not actual malice.
  • Self-serving deposition testimony that speakers believed their statements are true remains probative; absent contrary evidence, merely attacking credibility does not create a triable issue at summary judgment.
  • Distinguishing Schiavone and Goldwater, the Court found no evidence CNN intentionally ignored exculpatory material or engineered a predetermined smear. By contrast, CNN aired the full clip and invited Dershowitz to clarify his position twice—facts inconsistent with purposeful falsity.
  • Comparing Project Veritas v. CNN, the Court explained that actual malice can be plausibly shown when a publisher’s own contemporaneous reporting contradicts the challenged statements and the speakers had reasons to know of the contradiction. No such contradiction was shown here.
• Concurring opinions:
  • Judge Lagoa concurred in the judgment but sharply criticized Sullivan as policy-driven and ahistorical, urging Supreme Court reconsideration.
  • Judge Wilson concurred and defended Sullivan, emphasizing stare decisis, reliance interests, and the rule’s fit with the First Amendment’s “breathing space.”

Analysis

Precedents Cited and Their Influence

• New York Times Co. v. Sullivan (U.S. 1964): The anchor of the Court’s analysis. It requires public figures to prove “actual malice”—knowledge of falsity or reckless disregard for the truth. The majority faithfully applies Sullivan’s subjective knowledge standard, focusing on what CNN’s commentators actually believed.
• St. Amant v. Thompson (U.S. 1968): Clarifies that the plaintiff must show the defendant “entertained serious doubts” about the truth or had a “high degree of awareness of probable falsity.” The Eleventh Circuit used this lens to evaluate the testimony and internal documents; there was no evidence of subjective doubt.
• Masson v. New Yorker Magazine (U.S. 1991): Emphasizes that “mere negligence” is insufficient and that ill will or spite is not actual malice. The panel repeatedly underscored that hostility toward Dershowitz—or toward Trump—does not establish actual malice.
• Anderson v. Liberty Lobby (U.S. 1986): At summary judgment, courts ask whether the evidence could allow a reasonable jury to find actual malice by clear and convincing evidence. The Court applied this heightened evidentiary lens to conclude that Dershowitz’s record was insufficient.
• Turner v. Wells (11th Cir. 2018): Reiterates Florida’s defamation elements and confirms that subjective belief, not animus, is the touchstone for actual malice. It supported the Court’s dismissal of arguments grounded in alleged bias.
• Jews for Jesus v. Rapp (Fla. 2008): Florida adopts the Sullivan framework for public figures; used to align state elements with federal constitutional constraints.
• Penley v. Eslinger (11th Cir. 2010): Mere attacks on credibility do not create a genuine dispute of material fact at summary judgment without contrary evidence. This blunted Dershowitz’s “self-serving testimony” objections.
• Project Veritas v. CNN (11th Cir. 2024): A pivotal comparator. There, CNN’s anchors reportedly misstated the reason for a Twitter suspension despite the network’s own prior reporting to the contrary. The Eleventh Circuit treated those internal contradictions as “ample evidence” (at the pleading stage) of actual malice. The Court contrasted that scenario with Dershowitz’s, where no such contradiction or knowledge was shown.
• Schiavone Construction Co. v. Time, Inc. (3d Cir. 1988): Actual malice may be inferable where a publisher deliberately ignores exculpatory evidence. The Eleventh Circuit distinguished Schiavone because CNN aired the full remarks and provided clarifying interviews; there was no concealment.
• Goldwater v. Ginzburg (2d Cir. 1969): Supports actual malice where authors predetermine a defamatory narrative, conduct a sham “poll,” and ignore contrary evidence. The Eleventh Circuit found none of those hallmarks here.

Legal Reasoning

The majority’s reasoning hews closely to the constitutional definition of actual malice and the procedural posture of summary judgment:

• Subjective belief controls. The Court emphasized that actual malice turns on the speakers’ state of mind, not their tone, politics, or animus. CNN’s commentators testified they believed their interpretations of Dershowitz’s remarks were accurate. Dershowitz offered no contrary evidence demonstrating that any speaker knew those interpretations were false or seriously doubted them.
• Internal emails and editorial calls showed earnest views, not deception. Emails labeling Dershowitz’s argument as “crazy,” and a brief call summarizing the defense position as “President is King,” reflected contemporaneous interpretations. Crucially, the commentators accused of defamation did not participate in the call, and nothing in the record showed directives to distort coverage. The Court read these communications as evidence of sincerity, not subterfuge.
• Groupthink is not actual malice. The Court expressly rejected the notion that interpretive uniformity across outlets or commentators proves a coordinated lie: “Groupthink, however unwelcome, is not the same thing as actual malice.” Similar viewpoints, even if widespread and critical, are not evidence that any particular speaker knew the statements were false.
• Context-cutting evidence undermines malice. CNN broadcast the full clip of Dershowitz’s remarks and invited him on-air twice to explain himself. Those facts cut against any inference that CNN intended to deceive the audience by omission or concealment.
• No viable conflict-of-knowledge theory. Unlike in Project Veritas, Dershowitz could not show that CNN’s commentators reported facts contradicting other contemporaneous CNN reporting known to them. In the absence of such “reason to doubt,” the record did not support an inference of reckless disregard.
• Summary judgment rigor. Applying Anderson v. Liberty Lobby, the Court demanded evidence sufficient for a reasonable jury to find actual malice by clear and convincing evidence. Dershowitz’s attacks on the “self-serving” nature of testimony did not create a genuine dispute under Penley without countervailing evidence.

Impact

The decision carries doctrinal, practical, and strategic implications for defamation litigation in the Eleventh Circuit and beyond:

• Doctrinal clarity on “what doesn’t count” as actual malice. The opinion establishes that:
  • Editorial meetings and internal pejoratives—without directives or evidence the speakers harbored serious doubts—do not meet the actual malice threshold.
  • Interpretive consensus or “ideological lockstep” is not proof of knowing falsity.
  • Providing full context (airing full clips; facilitating clarifications) strongly undermines any inference of purposeful distortion.
• Blueprint for plaintiffs and defendants.
  • Plaintiffs should prioritize evidence of internal inconsistencies known to the speakers (e.g., contradictions with the outlet’s own prior reporting), deliberate avoidance of exculpatory facts, or admissions reflecting subjective doubt.
  • Media defendants should document sourcing, awareness of prior reporting, and steps taken to provide context; contemporaneous access to full materials and opportunities for response can be powerful defenses.
• Elevated importance of the Veritas paradigm. The Court’s contrast with Project Veritas indicates that allegations (and later proof) of internal contradiction within a publisher’s coverage can meaningfully shift outcomes on actual malice, particularly at the pleading stage.
• National debate over Sullivan highlighted. The dual concurrences provide a rare, comprehensive juxtaposition: an originalist critique urging reconsideration (Lagoa) and a stare decisis defense emphasizing reliance and First Amendment values (Wilson). While non-binding on the Supreme Court, they furnish well-developed roadmaps for both sides of the ongoing Sullivan debate.

The Concurrences: A Deepening Dialogue on Sullivan

Judge Lagoa’s Concurrence

• Core thesis: Sullivan is a policy-driven departure from the original meaning of the First and Fourteenth Amendments and has distorted defamation law to the detriment of reputation and truth.
• Historical argument: Drawing from Blackstone, early American sources, and pre-Sullivan doctrine, Judge Lagoa contends that the Founding-era understanding recognized libel as outside protected speech, afforded no heightened barriers for public officials/figures, and treated deliberate falsehoods as unprotected.
• Doctrinal critique: Tracing Sullivan through Curtis, Rosenbloom, Gertz, and Dun & Bradstreet, Lagoa argues the Court “constitutionalized” state libel law without textual or historical grounding, creating an “iron barrier” insulating lies and leaving reputations unredressed.
• Bottom line: Bound by Supreme Court precedent, she concurs in the result but invites reconsideration of Sullivan.

Judge Wilson’s Concurrence

• Core thesis: Sullivan is not “egregiously wrong,” and stare decisis, reliance interests, and the workability of the actual malice standard counsel strongly against overruling it.
• Method: Employing Justice Kavanaugh’s Ramos framework, Judge Wilson:
  • Evaluates Sullivan’s reasoning, historical ambiguity, and consistency with First Amendment values;
  • Assesses jurisprudential and real-world consequences, emphasizing “breathing space” and the marketplace of ideas;
  • Highlights reliance interests built over six decades of media and judicial practice.
• Policy emphasis: Without the actual malice rule, defamation claims risk chilling core political speech and undermining the press’s democratic accountability function.
• Bottom line: Sullivan should stand; calls to overrule it are destabilizing and unjustified.

Complex Concepts Simplified

• Public figure: Someone with pervasive fame or who thrusts themselves into public controversies. Public figures must meet the higher “actual malice” standard.
• Actual malice: Not ill will. It means the speaker knew a statement was false or had serious doubts about its truth but said it anyway.
• Reckless disregard: A subjective standard. The question is what the speaker actually believed, not what a reasonable journalist would have done.
• Summary judgment (clear and convincing standard): The case can be resolved before trial if the plaintiff lacks enough evidence for a jury to find actual malice with high assurance (clear and convincing proof).
• Groupthink vs. malice: Even widespread agreement among commentators—even if hasty or overheated—does not prove anyone knowingly lied.
• Context matters: Airing full statements and offering on-air clarifications reduces the inference of intentional deception by omission.

Practice Takeaways

• For plaintiffs:
  • Seek internal documents showing contemporaneous doubts or knowledge of contrary facts by the specific speakers.
  • Identify contradictions between the outlet’s challenged reporting and its own earlier reporting known to the speakers (Veritas-style evidence).
  • Show deliberate avoidance of readily available exculpatory material (Schiavone-type proof), or a pre-wired smear campaign (Goldwater-type proof).
• For media defendants:
  • Maintain documentation of sources, verification steps, and awareness of prior reporting.
  • Provide full context where feasible and allow subjects to respond; such steps strongly counter malice inferences.
  • Train commentators on distinguishing factual assertions from commentary and on the risks of internal contradictions.

Conclusion

The Eleventh Circuit’s decision in Dershowitz v. CNN does not break new doctrinal ground in the abstract; rather, its value lies in clarifying what evidence fails to meet the high bar for actual malice and in mapping the kinds of proof that can make a difference. The Court’s explicit statement that “groupthink” is not actual malice, its treatment of internal editorial communications as evidence of sincerity rather than deception, and its emphasis on full-context broadcasting and opportunities to respond collectively sharpen the contours of actual malice analysis at summary judgment.

Equally significant are the two concurrences, which crystallize the national debate over Sullivan. Judge Lagoa’s originalist critique invites reconsideration of a pillar of modern press doctrine; Judge Wilson’s stare decisis defense underscores the reliance interests and First Amendment values Sullivan has come to embody. Together, the opinions provide both immediate guidance for litigants on evidentiary thresholds and a forward-looking window into the Supreme Court’s possible paths in reexamining—or reaffirming—the constitutional architecture of defamation law.