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| Wynn operates the Encore Casino in Everett, Mass., since a dust-up with authorities over ownership. Holiday Point via Flickr CC BY 2.0 |
The outcome is not a surprise and probably for the best, because Wynn had lousy facts to support his argument. Unfortunately, Sullivan's complicity in our present misinformation crisis remains real and ever more problematic. Cases such as Wynn's undermine legitimate recognition of the dysfunction Sullivan has wrought.
I've written and spoken before, and will not here belabor, my ardent opposition to the Sullivan standard, which requires public figures to demonstrate, even prove—usually upon filing a complaint, with no access to evidence in the possession of the defense—that the defendant subjectively knew of the falsity of the publication, or at least that there's a smoking gun disproving the defendant's denial.
Sullivan came about with good intentions. In a nutshell, the Supreme Court was determined to enforce Brown v. Board (U.S. 1954) and bring about the civil rights order required by the Reconstruction Amendments, specifically in Sullivan by heading off southern officials' weaponization of tort law. But the wide berth that the Court cut for freedom of speech vis-à-vis the competing values of personal reputation and human dignity was cemented in constitutional law, and now we face the consequences of an irremediable imbalance.
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| Steve Wynn Sarah Gerke via Flickr CC BY-NC-ND 2.0 |
Wynn's suit was dismissed under the Nevada anti-SLAPP law because, the Nevada Supreme Court affirmed, Wynn failed to demonstrate sufficient proof of actual malice in his pleading. Wynn offered little more in the way of allegation than that the police complaints were "implausible," so should have been disbelieved—hardly that they were contradicted by evidence in the defendant's possession. There was an allegation that the AP reporter regarded a complainant against Wynn as "'crazy'"—but, again, that hardly equates to "lying." Anyway, were the fair report privilege eventually implicated, the salient fact would be the truthful rendition of the reports, not the truth of their underlying contents.
Besides bemoaning Sullivan, I have lamented at length on the ill wisdom of anti-SLAPP laws, such as they have been adopted throughout the United States, another song of woe I won't here reiterate. I also have acknowledged consistently that anti-SLAPP works well when it works well (and could work better). Wynn's case proves both points. He didn't get his day in court, nor hardly a hearing. But I suspect his ability to prosecute all the way to Washington has more to do with his wealth than with the merits of his claim.
Wynn's appeal strategy was principally to attack Sullivan head on. Wynn knows, or his lawyers know, that near immunity for false, even ludicrous, allegations against public figures has everything to do with the vigor of misinformation circulating in the American marketplace of ideas. But Wynn was ill able to illustrate an injustice against a meritorious cause, the kind of fertile soil one needs to nurture willingness to overturn a 60-year-old, civil rights-era precedent.
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Doubts about sacrosanct Sullivan were once uttered at one’s own risk in legal academic circles. But U.S. Supreme Court Justice Clarence Thomas legitimized debate with a concurrence in denial of certiorari in McKee v. Cosby (U.S. 2019). An actress, McKee, in 2014, publicly accused actor-comedian Bill Cosby of rape 40 years earlier. A letter from Cosby’s attorney to mass media attacked McKee’s credibility, but did not specifically deny the asserted facts of the encounter. McKee alleged defamation, and the courts concluded that the letter stated only unverifiable opinion.
Media advocates certainly hoped that Thomas’s commentary was a one-off. It was not. Two years later, Justices Thomas and Neil Gorsuch dissented from denial of certiorari in Berisha v. Lawson (U.S. 2021).... Earlier the same year, highly regarded U.S. Circuit Judge Laurence Silberman had joined Thomas’s call, dissenting in Tah v. Global Witness Publishing (D.C. Cir. 2021) (involving accusation of bribery against international human rights organization). A likeminded concurrence by Florida appellate Judge Bradford L. Thomas followed in Mastandrea v. Snow (Fla. Dist. Ct. App. 2022) (involving accusation city official was “on the take” in development matter). And that same year, the Journal of Free Speech Law published Professor David McGowan’s A Bipartisan Case Against New York Times v. Sullivan (2022). Justice Thomas reiterated his “view that we should reconsider the actual-malice standard,” Blankenship v. NBCUniversal, LLC (U.S. 2023) (Thomas, J., concurring in denial of certiorari), thrice more in 2022 and 2023.
Mass-media misinformation during the Donald J. Trump Presidency, contributing to the January 6, 2021, attack on the U.S. Capitol, shook the confidence in Sullivan even of some devoted liberal stalwarts in the academy. On the one hand, President Trump had used defamation, among other legal tools, to attack critics. He was accused of weaponizing transaction costs, but Sullivan remained an important substantive bulwark. On the other hand, Trump evaded “Me Too” accountability not only with denials, like Cosby, but with ruthless accusations of lying, which loyal political supporters embraced and amplified.
The busy federal court for the Southern District of New York has seen its share of politically charged defamation litigation. That’s where writer E. Jeanne Carroll, availing of a New York look-back statute, brought two suits against President Trump, alleging sexual battery in the 1990s and defamation for calling her claims “a complete con job,” “a hoax” and “a lie.” Juries awarded Carroll in excess of $80 million for sexual battery and defamation, despite the actual malice standard. Trump appealed. Do the verdicts show that Sullivan works? In 2022, Sarah Palin lost a defamation claim in S.D.N.Y. against The New York Times over a staff editorial that blamed her in part for the mass shooting that wounded U.S. Rep. Gabby Giffords. Exceptionally against the usual no-actual-malice motion to dismiss, Palin had won discovery. And discovery revealed some ethically problematic sloppiness behind the scenes at the Times. Nevertheless, bad journalism is not actual malice, and the court and jury so concluded. Palin’s appeal from the Second Circuit was seen widely as a contender to draw Sullivan reconsideration, but the Court passed.
Whether a function of social media, declining civility, or partisan extremism, data show that defamation litigation is up. And courts are not as quick as they once were to dismiss for a plaintiff’s inability to prove actual malice. Still, the public-plaintiff win remains a rarity, especially for the public official or public figure who doesn’t have the resources to go to the mat.
The case is Wynn v. Associated Press, No. 24-829 (U.S. Mar. 24, 2025).
