(CN) — Retired Harvard University law professor Alan Dershowitz took to a federal appeals court in Miami on Wednesday, arguing to a three-judge panel that he should be able to pursue his tossed $300 million defamation lawsuit against CNN.
Echoing arguments from his 2020 suit, Dershowitz told the 11th Circuit panel that the news network defamed him when it aired and posted on its website, a series of video clips accompanied by derogatory commentaries. Dershowitz says those clips misrepresented what he had said on the Senate floor while defending former President Trump during his first impeachment trial.
Two of the three appellate judges on the panel appeared unpersuaded by Dershowitz's argument.
"How do we factor in identical sentiments made by all of the other news outlets?" U.S. Circuit Judge Charles Wilson asked Dershowitz's attorney.
CNN argued that countless media outlets and others interpreted Dershowitz’s arguments the same way, with his full statements during the impeachment trial aired. They argued the speech at issue was of political debate, not libel litigation.
"The impeachment trial was the most important news story in America at the time, and was covered across all media, including TV, newspapers, online publications and even ordinary social-media users. Dershowitz’s response, in particular, was indisputably one of the biggest stories that day, and, even before the CNN statements, was highlighted in coverage by countless news organizations — much of which agreed with CNN’s interpretation," CNN wrote in a brief.
Wilson, a Bill Clinton appointee, questioned why Dershowitz did not present any evidence showing that people changed their opinions about him after CNN's commentary.
"He has to show a damage to his reputation as a result of the mischaracterization statements," he said.
Katherine Bolger, an attorney for CNN, argued that Dershowitz's reputation was already likely to be damaged before the commentary due to his prior representation of prominent criminal defendants including O.J. Simpson, Roman Polanski and Mike Tyson.
He was also a part of a legal team in 2006 that defended Jeffrey Epstein against accusations by women and girls that Epstein had sexually assaulted them when they were underage. Dershowitz helped negotiate a “non-prosecution agreement” under which Epstein served just 13 months in a county jail, much of it spent on “work release” in an office, before Epstein was later arrested for federal sex trafficking crimes in 2019.
Dershowitz's attorney, John Williams of the D.C. firm Williams Lopatto, said Wednesday his client was not invited after those clips were aired to speak on other news networks aside from Fox News and Newsmax. He added that it should be up to a jury to decide the case.
The judge pointed out that Dershowitz was invited on to appear on CNN, where he defended his argument on multiple occasions, in the days that followed.
"Isn't that evidence there was no actual malice?" U.S. Circuit Judge Britt Grant, a Donald Trump appointee, asked, noting the network's immediate efforts to show the full context of the statements.
Grant said her issue is that Dershowitz's statements could be interpreted differently in a variety of ways depending on what someone thought of him beforehand and their own personal perspective.
U.S. Circuit Judge Barbara Lagoa, a fellow Trump appointee, wondered if any of the news anchors misquoted what Dershowitz had actually said.
Dershowitz argued CNN commentators misrepresented his position, calling him “bonkers” and “un-American,” and accusing him of echoing “what you hear from Mussolini ... from Hitler” and from those “who rationalized ... genocide.”
At issue were Dershowitz’s remarks made to address the constitutional issues during the January 2020 impeachment trial accusing Trump of withholding military funds for Ukraine to coerce Ukrainian president Volodymyr Zelenskyy into investigating now-President Joe Biden and his son Hunter Biden.
Speaking to the senators, Dershowitz discussed at length the various states of mind and motives that a president might have when making a "quid pro quo" exchange in foreign policy that could have political benefits. Along the way, he appeared to argue that the Senate should not convict a president for such an exchange, even if the president did it for his own personal political benefit — so long as the president believed that the country would also benefit.
More than a few observers of the trial including CNN immediately thought that Dershowitz was arguing that a president could get away with any impeachable offense if he claimed that it was in the public interest. While Dershowitz had prefaced his remarks by stating that a quid pro quo would only be unlawful if the quo itself was illegal, that context was left out of clips that CNN aired.
Dershowitz's suit was dismissed in 2023 after a Florida judge sided with CNN, finding no evidence the cable news network acted with "actual malice" as required for liability under the 1964 U.S. Supreme Court decision’s in New York Times Co. v. Sullivan.
That standard can typically only be met if the defendant published false information about the plaintiff and either knew it was false when they published it or acted with “reckless disregard for the truth” while publishing it. Federal courts have typically recognized this as a high threshold to clear for First Amendment reasons.
The panel did not indicate when they intend to issue a ruling.
Follow @Megwiththenews
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
