Chapter 4: The Reality of Contemporary Libel Litigation

 In recent years, critics of the New York Times Co. v. Sullivan2 decision—including by two members of the United States Supreme Cour—have questioned whether the “actual malice” standard remains necessary or appropriate more than five decades after its adoption in 1964. Their premise is that this constitutional requirement presents a virtually insurmountable burden to public officials and public figures with meritorious defamation claims, and that it creates perverse incentives for journalists to be less diligent (or even careless) in disseminating false information across the globe.  Some of these critics acknowledge that Sullivan may have been necessary to protect free expression during the tumultuous civil rights battles of the 1960s, but cast doubt on whether its protections are necessary—or even beneficial—in today’s society.

The most prominent expression of this skepticism came in Justice Neil Gorsuch’s recent dissent from the denial of certiorari in Berisha v. Lawson, in which he questioned whether the actual malice doctrine has “evolved into a subsidy for published falsehoods on a scale no one could have foreseen [and] it has come to leave far more people without redress than anyone could have predicted.” ³ Justice Gorsuch’s sweeping concerns relied heavily on an article in the Ohio State Law Journal, which made alarmist claims about the supposed real-world effects of Sullivan, without analyzing whether actual cases support the author’s thesis.4 Justice Gorsuch’s stated concerns about Sullivan—– coupled with similar criticisms raised by Justice Thomas5—seem to have emboldened public officials and public figures in their defamation lawsuits, some of whom have cited these minority opinions in arguing that the protections established by Sullivan should be abandoned.6

But an analysis of defamation cases over the last twenty-five years demonstrates that these criticisms are unwarranted. Sullivan has not dissuaded public officials or public figures from bringing libel suits; to the contrary, in our experience, the last decade has seen a significant number of these kinds of cases.  Nor does the actual malice standard act as an absolute (or even near-absolute) bar to these kinds of claims getting before a jury.  Instead, an extensive review of federal and state cases across the country shows that many defamation suits brought by public officials and public figures proceed beyond an early motion to dismiss, and even beyond summary judgment.7 But by weeding out non-meritorious cases about matters of significant public interest, Sullivan preserves the careful balance between protecting free expression as well as individual rights of reputation.  In short, contrary to the premises underlying Justice Gorsuch’s query, Sullivan has not tipped the scales too far in favor of libel defendants. 

Nor is the actual malice standard less necessary now than it was in 1964:  it still provides the crucial “breathing space” for speech that is essential to ensuring that the public is informed about matters of public significance. Contrary to critics’ assertions, the actual malice standard continues to guarantee the rights of responsible journalists and citizens to engage in political speech, legitimately scrutinize the conduct of public officials, and engage in open debate about the conduct of individuals who wield power or influence in our society. At the same time, application of the actual malice standard by courts across the nation rewards sound journalistic practices, and disincentivizes the deliberate or reckless dissemination of defamatory falsehoods.   

Section I of this Chapter deconstructs the myth that, over time, “the actual malice standard has evolved from a high bar to recovery into an effective immunity from liability.”8  As discussed in that Section, a review of decisions over more than two decades shows that libel claims brought by public officials and public figures not only regularly survive dispositive motions, but also prevail at trial.9 A concern that meritorious claims are foreclosed, or that harms caused by conduct at odds with bona fide journalistic practices will not be redressed, is simply untrue. Conversely, the caselaw shows that the actual malice requirement serves as an appropriately “high bar to recovery” in situations where the publisher has made a good faith effort to report the truth—a critical protection against libel plaintiffs who may be actively seeking to deter legitimate criticism of official misconduct.

Section II addresses Justice Gorsuch’s question whether the Sullivan standard, as applied in what he describes as “our new world,” “‘cut[s] against the very values underlying the decision’”10—namely, speech that informs the public about important issues. For Justice Gorsuch (and Professor Logan, whose article also forms the primary basis for this rhetorical question), “the deck seems stacked against those with traditional (and expensive) journalistic standards—and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth.”11 But contrary to this premise, the experience of this Chapter’s authors, and a review of the cases themselves, make clear that it is simply not true that “publishing without investigation, fact-checking, or editing has become the optimal legal strategy” under Sullivan.12  Instead, the actual malice standard disincentivizes “ignorance-is-bliss” journalism, by permitting libel suits to move forward where there is evidence that the defendant willfully ignored the facts, or failed to adhere to any basic principles of responsible news reporting.  At the same time, the actual malice standard encourages and facilitates “traditional (and expensive) journalistic standards,” by rewarding journalists who actively take steps to confirm the accuracy of potentially defamatory material before publication.  In short, the actual malice standard encourages responsible journalism, and provides important protections if an honest mistake is made – which is exactly what it ought to do.

The threat of defamation lawsuits from public officials, public figures, and other powerful entities seeking to suppress unwelcome truths are just as pernicious now (if not more so) than in 1964, when Sullivan was decided. Far from being an “ironclad subsidy for the publication of falsehoods,”13 the actual malice standard—and its carefully calibrated protection for “erroneous  statement[s] . . . inevitable in free debate”— permits the publication of vital news that might not otherwise see the light of day.14 

In sum, decades of experience applying the Sullivan standard demonstrates the substantial value it brings to contemporary libel cases brought by public officials and public figures, and the importance of maintaining this protection.

I. THE ACTUAL MALICE STANDARD DOES NOT “IMMUNIZE” THE MEDIA

The suggestion that the actual malice rule leaves courts with no option but to dismiss meritorious libel claims at the earliest opportunity is demonstrably false. In many cases—illustrative examples of which are cited below—libel plaintiffs survive summary dismissal and take their cases all the way to trial.  The unsupported assertion by an academic that “[t]he threat that defendants today face from libel litigation is virtually nil,”15 is simply not borne out by the facts.

Although the Sullivan standard requires plaintiffs to identify evidence that the defendant published a falsehood with knowledge of its falsity or with a high degree of awareness of its probable falsity, in appropriate cases, courts and juries do find sufficient evidence to draw this conclusion.  Sullivan’s actual malice standard thereby maintains a carefully calibrated balance between freedom of speech and the right to protect one’s reputation. 

A. Rightly or Wrongly, Public Official and Public Figure Libel Cases Frequently Survive Dispositive Motions

The premise that actual malice presents an insurmountable bar to defamation cases is simply not true, as illustrated by just some of the recent cases involving public officials and public figures that survived early dispositive motions. 

• In Dershowitz v. CNN, Inc., plaintiff Alan Dershowitz sued CNN for libel over its reporting on his answer to a question posed during President Trump’s first impeachment trial.¹⁶  The district court denied CNN’s motion to dismiss, finding that Dershowitz plausibly alleged that CNN had knowingly edited a clip of his answer to create a false impression that Dershowitz had argued that a sitting president could commit illegal acts with impunity if he thought it would aid his reelection.
• In Butowsky v. Folkenflik, plaintiff Ed Butowsky sued NPR, its senior media correspondent David Folkenflik, and certain former and current NPR executive editors for libel over NPR’s reporting about the conspiracy theory surrounding the death of Democratic National Committee staffer Seth Rich.¹⁷ The district court denied defendants’ motion to dismiss, concluding that plaintiff’s allegations were sufficient to create a plausible inference that defendants published the challenged reports with actual malice.
• In US Dominion, Inc. v. Powell, voting machine company Dominion Voting Systems and related entities sued former federal prosecutor Sidney Powell, former New York City mayor Rudy Giuliani, and pillow company executive Mike Lindell for libel over their statements casting suspicion on Dominion’s conduct during and after the 2020 presidential campaign.¹⁸ The district court denied defendants’ motion to dismiss, concluding that Dominion adequately alleged the challenged statements were made with actual malice.
• In Nunes v. Lizza, then-Congressman Devin Nunes sued the publisher of Esquire magazine and reporter Ryan Lizza for libel over a report about an Iowa farm owned and operated by Nunes’s family.¹⁹ Although the district court granted defendants’ motion to dismiss (finding in part that Nunes failed plausibly to allege actual malice), the Eighth Circuit reversed that ruling in part, holding that Nunes adequately pleaded actual malice as to an alleged republication of the report after the lawsuit was filed.
• A New Jersey appellate court recently reversed dismissal of libel claims arising from reports that a police officer had engaged in specific sex acts with a prostitute, because the plaintiff plausibly alleged that the source of those allegations never stated that she was a prostitute or had engaged in that sex act with a police officer.20   

These recent cases do not reflect a change in the judiciary’s approach to defamation claims; courts regularly have denied early motions seeking dismissal on actual malice grounds in those cases where the plaintiffs plausibly alleged that the defendants knowingly or recklessly published falsehoods.  As the Second Circuit noted in 2015, “[i]n practice, requiring that actual malice be plausibly alleged has not doomed defamation cases against public figures. To the contrary, district courts in and out of our Circuit have inferred actual malice at the pleading stage from allegations that referred to the nature and circumstances of the alleged defamation or previous dealings with the defendant.” 21

Similarly, on the other side of the country, a California federal court denied a motion to dismiss a libel claim because the plaintiffs plausibly alleged that the defendants purposefully “altered . . . images and/or video footage so as to falsely portray Counterclaimants as having committed illegal, improper and/or racist acts, and broadcast these altered images.”22  Another California federal court denied a dispositive motion in a case challenging the headline “REHAB FOR BLAKE” that accompanied an article reporting concerns about musician Blake Shelton’s alleged heavy drinking and suggesting he should seek treatment, concluding there was evidence that the headline was published with actual malice because the publishers knew that Shelton had not, in fact, entered “rehab” and could have published it with an intent to convey a meaning they knew to be false.23  A New Mexico federal court denied summary judgment for a broadcaster who stated as a fact that a government contractor drove a car purchased with a government credit card, after a government report established that the purchase was cancelled before the car could be delivered.24  And, in another illustrative case, a Georgia federal court denied a motion to dismiss a defamation claim brought by a radio host against his former colleagues, after a broadcast accused him of being fired for misconduct; the court found that the plaintiff plausibly alleged that the defendants “knew, or [were] in a position to know (by virtue of being employed by the station)” that the employee had left the station for reasons unrelated to misconduct.25

Courts also have refused to dismiss cases on actual malice grounds where they found that subjective knowledge of falsity or reckless disregard for the truth could be inferred from the defendants’ reliance on particular reporting or sources of information. For example, in one recent District of Colorado case, the court denied summary judgment for the publishers of an article allegedly criticizing plaintiff’s business as part of a short-selling scheme because there was evidence that defendants employed a “purposefully . . . deficient verification process” prior to publishing.26 Similarly, the Ninth Circuit denied a dispositive motion where the defendant attorneys “chose to publish” a press release accusing casino magnate Steve Wynn of sexual harassment, even “after learning that none of the witnesses [including their client] could confirm that Wynn played any role in [the misconduct] and without considering alternative explanations or investigating further.”27 And a bystander at a counter-protest to the Unite the Right Rally similarly defeated a motion to dismiss by Alex Jones and related media outlets who had accused the plaintiff of being paid hundreds of thousands of dollars by George Soros to participate in a deep state plot, because the plaintiff plausibly alleged that the defendants “‘twisted’ elements of his personal and professional history to fit a pre-conceived narrative that ‘Charlottesville was a Soros-funded false-flag operation.’”28 

In sum, there is no shortage of libel claims brought by public officials and public figures that have survived pre-trial motions—contrary to the supposedly impenetrable bar of Sullivan’s actual malice rule.

B. Public Official and Public Figure Libel Plaintiffs Can and Do Go to Trial.

Further disproving the notion that the actual malice standard provides “effective immunity” from defamation claims, several noteworthy defamation cases have not only survived preliminary motions, but have proceeded to a jury trial.  Indeed, the beginning of this year alone has seen at least three high-profile defamation trials.

First, in February 2022, former Alaska Governor and Republican Vice Presidential nominee Sarah Palin brought her defamation case against the New York Times before a jury in the Southern District of New York.  Palin sued the Times for defamation over a 2017 editorial titled America’s Lethal Politics. Although the district court initially dismissed Palin’s complaint for failure to allege actual malice plausibly, the Second Circuit reversed, concluding that Palin “met her burden to plead facts giving rise to the plausible inference that [the Times] published the allegedly defamatory editorial with actual malice.”29  The case ultimately proceeded to a jury trial, following which both a unanimous jury and the court itself determined that, in fact, Palin had not carried her burden of proving actual malice.

Second, competing charges of defamation resulting from reporting about alleged sexual misconduct by former Alabama Chief Judge and U.S. Senate candidate Roy Moore went to trial in Alabama in 2022, after an early motion to dismiss was denied.   Leigh Corfman sued Moore for denying that he had molested her when she was 14 years old, when Moore was a 32-year old assistant prosecutor for Etowah Country. Moore countersued for defamation.  Although Moore clearly was a public figure (and former public official), the court found that Corfman also had become a limited-purpose public figure when she told her story to the press in 2017.  At trial, the jury found that neither party had been defamed.30 

Third, in January 2022, rapper and entertainer Cardi B was awarded $4 million in actual and punitive damages in her defamation lawsuit against a celebrity YouTuber who had made comments on social media stating that Cardi B was a former prostitute who suffered from sexually-transmitted diseases.31 

These kinds of jury trials in defamation cases are by no means a recent phenomenon.  For example, in 2016, a judge in the Western District of Virginia denied summary judgment to Rolling Stone magazine in a defamation case about a 2014 article titled A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA, which “contained a graphic depiction of the alleged gang-rape of a UVA student, referred to as ‘Jackie,’ at a Phi Kappa Psi fraternity party.”32 In the weeks that followed its publication, significant questions were raised about the accuracy of Jackie’s central narrative of gang rape.  The magazine issued an Editor’s Note “acknowledg[ing] the discrepancies in Jackie’s account, blam[ing] Jackie for misleading [the reporter], and claim[ing] that its trust in Jackie had been ‘misplaced.’”33  A review of the editorial processes that led to the article by the Columbia University School of Journalism “described the Article as a ‘journalistic failure’ and concluded that defendants ‘set aside or rationalized as unnecessary essential practices of reporting.’”34 Rolling Stone retracted the article in April 2015, and three defamation suits followed. 

The first lawsuit was filed by Nicole Eramo, the dean in charge of handling sexual assault cases at the university, against the magazine, its publisher, and the article’s writer, asserting that the article “destroyed Eramo’s reputation as an advocate and supporter of victims of sexual assault” and claiming that she received hundreds of threatening and vicious emails from the public after it ran.35 The district judge found that Dean Eramo was a limited-purpose public figure, but denied Rolling Stone’s summary judgment motion, concluding that a jury could find actual malice given the circumstances of the writer’s and magazine’s investigation and publication. ³⁶  “Although failure to adequately investigate, a departure from journalistic standards, or ill will or intent to injure will not singularly provide evidence of actual malice, the court believes that proof of all three is sufficient to create a genuine issue of material fact.”³⁷ At the 2016 trial, the jury found that Dean Eramo had been defamed, awarding her $3 million in damages.  The two other lawsuits involving the same article ultimately settled.³⁸ 

In another case, a police sergeant sued the publisher of the Milford-Miami Advertiser after a news report stated that the sergeant had been fired from the Miami Township police and reinstated after an arbitration.³⁹ The district court denied the defendants’ summary judgment motion, and the jury awarded the sergeant $100,000 in damages. The Sixth Circuit affirmed, holding that “[t]here was sufficient evidence in this case for the jury to conclude that Gannett’s employees knew that the [challenged] statement . . . was probably false, but nonetheless failed to research further and published it.” ⁴⁰

These are only some of the libel cases involving public figures or public officials that have proceeded to trial in recent years, again disproving the notion that the actual malice standard provides an “effective immunity” for defamation defendants. 

II. NEW YORK TIMES V. SULLIVAN REMAINS CRITICAL TO PROMOTING UNINHIBITED, ROBUST AND WIDE-OPEN DEBATE ON PUBLIC ISSUES

Critics of the actual malice standard also assert that the legal doctrine no longer “serve[s] Sullivan’s original purposes” of promoting “robust reporting” on matters of public interest.⁴¹ The premise underlying this contention is that the standard’s scienter requirement stymies news organizations with “traditional (and expensive) journalistic standards,” while giving irresponsible parties a free pass to “disseminate the most sensational information” without fear of liability.⁴²  But this premise also is demonstrably false. The actual malice standard does not give publishers carte blanche to fecklessly publish “the most sensational information” available, because there always have been powerful individuals ready and willing to challenge publishers by threatening or filing libel litigation—a fact that is as true today as it was in 1964.⁴³ Rather than disadvantaging “traditional . . . journalistic standards,” the actual malice standard often is the only thing standing between diligent, well intentioned journalists and the onerous effects of litigation—as both Justice Alito and Justice (then-Judge) Kavanaugh have recognized.⁴⁴

The continuing importance of the actual malice standard is demonstrated by the Eleventh Circuit’s decision in Berisha that gave rise to Justice Gorsuch’s dissent. Although some have assumed that the plaintiff in Berisha was a random individual who “bec[a]me a limited purpose public figure simply by defending himself from a defamatory statement,” that was hardly the case: ⁴⁵ Shkelzen Berisha was the son of the former Albanian president—an individual with “one hundred percent name recognition” in that country—and his “supposed role in corrupt arms dealing” had been widely reported in American and international news organizations before the lawsuit was filed.⁴⁶ Among Berisha’s widely reported misdeeds were his involvement in a scheme to defraud the U.S. Government as part of an arms procurement deal; his alleged involvement in a corrupt ammunition decommissioning project that caused a fatal explosion that killed dozens of people; and his alleged involvement in the mysterious death of a potential whistleblower.⁴⁷  In short, the plaintiff was a politically powerful individual who had been implicated in corruption, but who sought to launder his reputation in an American court. That is precisely the type of plaintiff Sullivan and its progeny anticipated as threatening a “chilling effect” on free speech.

Concerns about the reach and impact of social media and sensationalist journalism are, moreover, misplaced in light of the facts of Berisha itself.⁴⁸ Berisha filed his libel claim against the publishers of a “traditional (and expensive) journalistic” work—namely a full-length non-fiction book by a prize-winning investigative journalist that was published by a major book publisher. The book reported the story of “three young Miami, Florida, men who became international arms dealers during the early 2000s.”⁴⁹ These young men were at the center of a major international scandal—and ultimately were convicted of “defrauding the United States government”—after it emerged that they had fraudulently supplied enormous quantities of Chinese-made ammunition from Albanian depos to the Afghan army as part of the War on Terror.⁵⁰ In explaining the government’s involvement, the book reported that Berisha had attended a  meeting of arms dealers in Tirana, Albania and was part of a “mafia” orchestrating the corruption.  The report about Berisha was never shown to be false; to the contrary, shortly before the Supreme Court declined to grant certiorari, Berisha and his family were designated personae non gratae by the State Department “due to . . . involvement in significant corruption.”⁵¹ 

The book at issue in Berisha, which reported on international government corruption and incompetence, represents the kind of “debate on public issues [that] should be uninhibited, robust, and wide-open.”⁵² The only reason the lawsuit was dismissed at summary judgment was because Berisha was unable “to show—well beyond a preponderance of the evidence—that the defendants published a defamatory statement either with actual knowledge of its falsity or with a ‘high degree of awareness’ of its ‘probable falsity.’”⁵³ Without that protection, Shkelzen Berisha’s defamation claim would likely have survived dismissal and gone to trial (with all the expense and uncertainty that entails), or the author might have felt pressured to issue a retraction that he did not believe to be true. The First Amendment “tolerat[es] the publication of some false information” in cases such as this because it is “a necessary and acceptable cost to pay to ensure truthful statements vital to democratic self-government were not inadvertently suppressed.”⁵⁴ 

This need to preserve “breathing space” for speech about public affairs is as vital today as it was when Sullivan was decided.  Without the protections offered by the actual malice standard, many wealthy or powerful plaintiffs could impose substantial litigation costs on journalists and media companies, merely by asserting that the statements at issue were false.  As the Court in Sullivan predicted, such a legal landscape would bring down “the pall of fear and timidity . . . upon those who would give voice to public criticism” and create “an atmosphere in which the First Amendment freedoms cannot survive.”⁵⁵ 

A. The Actual Malice Standard Protects “Robust Reporting” on Subjects that Public Officials and Public Figures Seek to Suppress.

Recent caselaw is replete with examples of public officials and other powerful people seeking to suppress core First Amendment speech, including political commentary and vital news reporting about matters of public interest. In the decisions cited below, the publishers were protected under the actual malice standard—often after the courts involved had rejected other common law defenses, like the fair report privilege⁵⁶ or the opinion doctrine.⁵⁷ Without the actual malice standard, those publishers would be faced with the Hobson’s choice of a protracted and expensive trial, or settling on onerous terms that could include retracting or removing a publication they believed to be true. This “chilling effect” cannot be discounted; without the protections of the actual malice rule, it is not difficult to imagine journalists limiting their reporting because of the fear of expensive litigation and potential liability, with important stories not being published at all. The value of information in a democracy far outweighs the countervailing interest in these cases—which often is nothing more than the plaintiff’s desire to avoid criticism or prevent revelations about serious misconduct. In other words, the actual malice standard continues to ensure—as it did in Sullivan—that unintended errors or disputes over the truth of an accusation cannot be used to justify suppression of information about matters of public importance.

As a review of case law from around the country (at both the state and federal level) confirms, prominent political figures and government officials with national profiles have not hesitated to bring libel actions against the news media for reporting that criticizes official conduct. These plaintiffs range from sitting Congressmen⁵⁸ and candidates for U.S. Senate⁵⁹ to presidential campaigns.⁶⁰

State and local political figures also routinely assert defamation claims in response to critical reporting about their personal and professional conduct. These include everyone from lieutenant governors⁶¹ and state representatives⁶² to mayors, county commissioners, city managers, and school district officials.⁶³ 

The news media also regularly face libel claims made by members of law enforcement⁶⁴ and the judiciary⁶⁵—individuals who wield significant power over the ordinary citizens they are tasked with protecting. For example, an Alabama police officer sued the Huntsville Times over a well-corroborated report alleging that the officer had racially abused a woman while he was off duty.⁶⁶ A California state judge sued ABC over a news broadcast asserting that he used a “crystal ball” to reach his decisions, that he read periodicals while on the bench, and that he spit, yelled, and screamed in the courtroom.⁶⁷  In these cases, the actual malice standard was critical to protecting news reports about important public issues from legal action.

Public officials in foreign governments also have regularly turned to legal action to seek retribution against journalists who report about their conduct. For example, a senior Venezuelan government official sued the Wall Street Journal over a 2015 article reporting that U.S. officials were investigating him for involvement in cocaine trafficking and money laundering.⁶⁸ And several Liberian public officials sued Global Witness, a nonprofit human rights organization, for exploring allegations that the officials had received bribes in exchange for approving an oil license issued to Exxon.⁶⁹

Other prominent and powerful persons and entities with substantial influence over and impact on public life also have used threats of defamation actions to attack critical reporting about their public activities.  These plaintiffs include those with national public platforms,⁷⁰ as well as those who exercise significant power in their local communities.⁷¹

Powerful foreign public figures—many with vast fortunes and deep connections to foreign governments—also have used defamation lawsuits in an effort to muzzle scrutiny of their actions. This includes not only Berisha, himself the son of the Albanian prime minister and president, but also oligarchs from the Caucuses⁷² and Russia.⁷³ In one disquieting example, Oleg Deripaska, a Russian oligarch and close confidant of Vladimir Putin, sued the Associated Press over an article implicating him in criminal actions related to the 2016 U.S. presidential election and in connection with assets stolen from Ukraine.⁷⁴

Finally, corporations can be as powerful and influential as public officials, and also are prolific defamation plaintiffs. Issues related to the products or services they sell—from security and penal services to medical equipment,⁷⁵ food,⁷⁶ or even religious salvation⁷⁷—can have a profound and sometimes deleterious effect on people’s lives. Private companies also are often inextricably bound up with government programs that affect the public, like the private security forces that contracted with the government throughout the War on Terror.⁷⁸  They also may bring lawsuits against local activists and organizations that speak out against the impact the companies’ actions have on their community, such as the private prison company who sued residents and an advisory neighborhood commission in Washington, D.C. that was advocating against the placement of a prison in their neighborhood.⁷⁹ The actual malice standard is essential to protect reports about these important public issues, just as it is for protecting reports about misconduct by government actors.   

B. Specific Examples Show How The Actual Malice Standard Provides the “Breathing Space” Necessary to Publish Important Journalism on Matters of Immense Public Concern.

The actual malice standard does not proceed from the premise that there is inherent value in false and defamatory statements.⁸⁰ But as the Supreme Court has recognized, the common-sense reality is that factual errors are “inevitable in free debate.”⁸¹ To avoid the oppressive “self-censorship” and “cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press” that would result if speakers could easily be held liable for “inevitable” mistakes, the Supreme Court has recognized the need for a rule that “extend[s] a measure of strategic protection to defamatory falsehood” to “assure to the freedoms of speech and press that ‘breathing space’ essential to their fruitful exercise.”⁸²

A closer look at some of the cases in which courts found speech about public officials and public figures to be protected by the actual malice rule illustrates this principle. 

1. Political Campaign Coverage: Don Blankenship v. The Entire Media

Perhaps no category of speech is more central to “the essence of self-government”⁸³ than the “[d]iscussion of public issues and debate on the qualifications of candidates” for public office.⁸⁴ Accordingly, the Supreme Court has held that the “constitutional guarantee” reflected in the actual malice rule “has its fullest and most urgent application precisely to the conduct of campaigns for political office.”⁸⁵ Yet, just as “erroneous statement is inevitable in free debate,” individuals engaged in vigorous and often time-sensitive reporting on political campaigns unavoidably will make mistakes. In an important recent decision, a federal district judge in West Virginia recognized that principle, granting summary judgment to a dozen news organizations and journalists on actual malice grounds.

In Blankenship v. Fox News Network, LLC, the plaintiff was an unsuccessful candidate for the Republican nomination in the 2018 race for the U.S. Senate seat from West Virginia. ⁸⁶ Prior to launching his political career, Don Blankenship was the wealthy CEO of a major mining company who was convicted of conspiracy to violate mine safety standards in the wake of a 2010 explosion at one of his company’s mines that took the lives of 29 miners. Blankenship was sentenced to a year in federal prison—the maximum penalty available under the law for that charge—and fined $250,000.  Almost immediately after his release in 2017—and while still on supervised release—Blankenship announced the launch of his Senate campaign. A billionaire candidate in a pivotal mid-term race who had just been released from prison naturally attracted attention. During the course of Blankenship’s campaign, many reporters and commentators referred to him as a “convicted felon” (or some variation of that phrase). But even though Blankenship served a full year in federal prison, his crime was classified in the U.S. Code as a Class A Misdemeanor.  In 2019, he sued more than 100 defendants—including digital and print news publishers, television networks, reporters, commentators and political organizations—for defamation, based on the erroneous reference to him as a “felon.” 

The district judge denied early motions to dismiss filed by many of the defendants, made on the grounds that the reports were substantially true, and found that Blankenship had adequately alleged that the inaccuracies were published with actual malice.⁸⁷ After more than a year of discovery, including more than a dozen depositions, the defendants remaining in the case moved for summary judgment on the grounds that there was no evidence to establish they had published the inaccurate description of Blankenship’s conviction with actual malice. This time, the court agreed, granting the motions and dismissing the lawsuit. The evidence presented on summary judgment showed that none of the defendants had deliberately mis-labeled the conviction; some testified that they mistakenly believed a person who served a year-long federal prison term must have been convicted of a felony, while others explained that they were using the term “felon” in the colloquial sense, to refer to someone who was convicted of a serious crime. These errors were not made by journalists reporting on Blankenship’s trial, or in news reports that provided a detailed account of his criminal history.  Rather, the references appeared in articles about a high profile political race, to highlight for a lay audience an important event in Blankenship’s background that made him, at minimum, an atypical candidate for U.S. Senate.    

In granting the defendants’ summary judgment motions, the district court made clear that its ruling was not “an endorsement of the moving defendants’ errors.”⁸⁸ Instead, its order recognized that the purpose of the actual malice standard is to protect the kind of “erroneous statements” that are “inevitable” in the exercise of First Amendment rights, and provide the necessary “breathing space” to the press to perform its vital role in reporting about political campaigns and candidates for public office.⁸⁹ In an ideal world, the news media always would provide precisely accurate information. But in the real world, news organizations are composed of human beings who sometimes make mistakes. The fact that the mistake in this case was made by hundreds of journalists and commentators at all ends of the political spectrum, from organizations large and small (including in print, online and on television) illustrated that it was precisely the type of “erroneous statement” that is “inevitable in free debate.”⁹⁰

2. Investigative Journalism: Church of Scientology International v. Behar

Absent the protections provided by Sullivan and its progeny, news coverage of powerful and aggressively litigious organizations and individuals would be functionally impossible. If a lower standard of fault were applied, a plaintiff alleging “falsity” might easily evade dismissal— particularly for reports about conduct that is difficult to prove, or about which the plaintiff has control of critical information. In such an environment, enterprise reporting about powerful institutions simply would not be financially viable—the risk would be too great.  A case involving the powerful—and famously litigious—Church of Scientology illustrates the point. 

In 2001, the Second Circuit’s decision in Church of Scientology International v. Behar put an end to nearly a decade of litigation by the Church against Time magazine and one of its reporters, arising from a cover story entitled “Scientology: The Cult of Greed.”⁹¹ Not surprisingly, given the title, the Church was unhappy with the article.  After a series of decisions from the district court, the case was narrowed to three sets of statements: (1) statements that the Church “survives by intimidating members and critics in a Mafia-like manner,” with critics “find[ing] themselves . . . framed for fictional crimes, beaten up or threatened with death;” (2) statements concerning a former Scientologist who had been convicted of financial crimes and allegedly was instructed by the Church to murder his psychiatrist and commit suicide; and (3) statements concerning the anger of the parents of a young Scientologist who had committed suicide. 

The Church’s argument that these statements were published with actual malice was heavily premised on the contention that the author “had a negative view of Scientology and that his bias pervaded his investigation.”⁹² The article certainly reflected poorly on the plaintiff, but the court held that it had not shown that this alleged “bias” caused the author to publish false information or avoid learning facts that could cast doubt on the accuracy of his reporting.⁹³ To the contrary, the challenged statements were based on “extensive research,” including review of affidavits from former Church officials, press coverage, interviews with multiple sources, consulting with experts, and, with respect to statements about retaliation against journalists, the author’s own personal experience.⁹⁴ 

The Church also attacked the credibility of some of the key sources, claiming reliance on one former Scientologist in particular was reckless.⁹⁵ But the court found that the author “had considerable corroboration” for the challenged statements, including testimony of the psychiatrist at the former Scientologist’s criminal trial and interviews with others involved.  Accordingly, even if the author could not be absolutely certain of the truth, he did not report on these incidents “with purposeful avoidance” of it.⁹⁶

Despite what the court described as an “extensive” reporting process, a less rigorous liability standard could easily have resulted in a protracted jury trial, where allegations of personal bias, reliance on purportedly questionable sources, and the failure to chase down every lead might have resulted in a verdict for the plaintiff.  It was only because the actual malice standard requires that the mistakes be based on actual knowledge of falsity—or purposeful avoidance of the truth—that this important reporting ultimately was protected. 

Over the years, litigious institutions like the Church of Scientology often have been the subject of critical reporting.⁹⁷ Typically, such journalism is carefully thought through, to ensure that the information (and the reporting process) can stand up to any legitimate scrutiny.  But without the protection of the actual malice standard, such reporting would rarely see the light of day—the risk of publishing would simply be too great.  Regardless of one’s views about the Church of Scientology—or any of the other subjects of critical investigative reporting—the First Amendment is designed to protect this kind of journalism; a libel law framework that effectively prevents that from happening is antithetical to the most basic principles of an informed citizenry that undergirds our democracy.   

3. Covering Companies That Make Products The Public Relies On:  BYD Co. v. VICE Media and BYD  Co. v. Alliance for American Manufacturing  

Notwithstanding the importance of government officials in a democratic system, people are just as—if not more—directly affected by the actions of the companies that make the products they use in their everyday lives.  Because such companies do not hesitate to use libel law to attack journalism that they believe will hurt their profitability, the actual malice standard is critical to protect this reporting and the public interest it serves. 

In the early days of the COVID-19 pandemic, BYD  Co. Ltd., a Chinese manufacturer that describes itself as one of the world’s “largest producers and suppliers of electric vehicles . . . as well as solar panels, lithium batteries, and protective masks and equipment, among other products,” won a $1 billion contract to supply California with N95 masks.⁹⁸  When this announcement attracted press coverage—some of it critical—the company responded by filing two libel lawsuits against U.S. publishers.⁹⁹  The company conceded that it was “at least a limited purpose public figure,” especially given its “public role” in distributing supplies during the pandemic and, in both cases, courts dismissed the lawsuits for failure to plausibly allege actual malice on the part of the publishers. 

The first suit was filed against the digital news publisher VICE following the publication of an article entitled Trump Blacklisted This Chinese Company. Now It’s Making Coronavirus Masks for U.S. Hospitals. BYD objected to the article’s reference to a report by an entity called the Australian Strategic Policy Institute (“ASPI”), which included BYD in a list of companies associated with factories that allegedly used forced labor from China’s Uyghur community. The article provided a hyperlink directly to the report and included BYD’s previous statements denying the allegations, noting that “the company has been called a ‘model employer’ by labor advocates.”¹⁰⁰

The second suit, filed in federal district court in Washington D.C., concerned a series of publications by a nonprofit organization called the Alliance for American Manufacturing, which advocates in favor of American-made products. The Alliance published statements concerning BYD’s association with forced labor, based on the ASPI report; it questioned why California had selected an “automaker” that was “controlled by the Chinese State” to produce medical equipment; and it pointed out that BYD issued a $500 million refund to the state after the masks failed to secure federal certification.¹⁰¹ In addition to denying the forced labor allegations, BYD disputed that it was “controlled” by the Chinese government, maintaining that it is privately owned.

Both cases were dismissed, with the courts finding that the lawsuits contained only conclusory allegations that the defendants published with knowledge of falsity or reckless disregard of the truth.  BYD’s dispute over the forced labor allegations amounted to the argument that the ASPI report did not actually accuse it of “profiting” from slave labor, because it said only that BYD had business dealings with a company that, in turn, had a subsidiary that allegedly used forced labor.¹⁰² Thus, BYD argued, the defendants knowingly misrepresented what the ASPI report said. But, as both courts recognized, the report expressly identified “83 foreign and Chinese companies directly or indirectly benefitting from the use of Uyghur workers,” and included BYD on that list.¹⁰³ As the D.C. court noted, the most that could be said was that the defendant in that case “merely had a different interpretation of the ASPI report.”¹⁰⁴ 

BYD also alleged that ASPI was not a reliable source because it had “an anti-China agenda.”¹⁰⁵ But BYD did not allege any facts showing that either of the defendants subjectively knew or believed that ASPI was not a credible source and, as the D.C. court pointed out, the ASPI Report included endnotes to support each its claims. As the court explained, “to defeat a defamation claim, the Alliance need not have tracked down and verified that each endnote supports each claim. Because the actual malice standard is subjective, what matters is not whether the endnotes actually support the claims in ASPI’s Report but whether the Alliance thought they did.”¹⁰⁶

The reporting at issue in these cases—by a news organization and by an advocacy group—raised serious concerns about a foreign company responsible for supplying significant quantities of vital equipment to the United States. Those concerns were supported by a credible report from a reputable think tank founded and funded by the Australian government, and were reflected in major legislation passed by the United States Congress.  Yet BYD was prepared to pursue two separate federal lawsuits that appeared designed to deter critical reporting about it. Absent the actual malice standard, BYD’s disagreement with the publishers’ interpretation of the ASPI report and its allegations that the ASPI was biased and unreliable could have subjected the defendants to years of expensive litigation and, potentially, to crippling liability.     

4. Examining Quasi-Governmental Conduct: CACI Premier Technology, Inc. v. Rhodes.

As the Supreme Court explained in Sullivan, at a minimum, the actual malice standard “delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.”¹⁰⁷ But today, what once may have been unambiguously described as “official conduct” is performed by ostensibly private contractors working for the government.¹⁰⁸ As the Supreme Court has recognized, however, the Sullivan rule must also be applied to those “‘public figures’ whose views and actions with respect to public issues and events are often of as much concern to the citizen as the attitudes and behavior of ‘public officials’ with respect to the same issues and events.”¹⁰⁹ One powerful example of how this rule protects important reporting on governmental activity performed by contractors is CACI Premier Technology, Inc. v. Rhodes.¹¹⁰

As the Fourth Circuit described it, “CACI is a U.S. government contractor that provides intelligence services to the military” and, “[i]n the post-invasion phase of the war in Iraq, CACI . . . provided civilian interrogators for the U.S. Army’s military intelligence brigade assigned to the Abu Ghraib prison, near Baghdad.”¹¹¹ In April 2004, CBS News aired “an extended report, with sickening photographic evidence, about U.S. soldiers abusing and humiliating Iraqi detainees at Abu Ghraib,” which included “photographs of naked detainees stacked in a pyramid; a photograph of two naked and hooded detainees, positioned as though one was performing oral sex on the other; and a photograph of a naked male detainee with a female U.S. soldier pointing to his genitalia and giving a thumbs-up sign,” as well as “[a]nother photograph [that] showed a hooded detainee standing on a narrow box with electrical wires attached to his hands,” and “[a] final photograph [that] showed a dead detainee who had been badly beaten.”¹¹² These “abuses stunned the U.S. military, public officials in general, and the public at large.”¹¹³ Other media reports that the court described as essentially contemporaneous with the CBS broadcast revealed “that CACI interrogators at Abu Ghraib had abused detainees and directed or encouraged the abuse of detainees,” relying on “sources [that] included two official military reports, [and] a published interview of the brigadier general formerly in charge of U.S. prisons in Iraq (including Abu Ghraib).”¹¹⁴ 

In August 2005, radio host and former Air Force service member Randi Rhodes spoke about Abu Ghraib on Air America, “a liberal talk radio network.”¹¹⁵ Rhodes’ commentary addressed “the abuses at Abu Ghraib, the issue of military contractor responsibility for those abuses, and the issue of the Pentagon’s use of military contractors.”¹¹⁶ CACI subsequently sued Rhodes and Air America for defamation, challenging thirteen statements that were broadcast between August 10 and August 26, 2005.¹¹⁷ 

Following discovery, the district court granted summary judgment the defendants, concluding that none of the statements at issue were made with actual malice, and the Fourth Circuit affirmed.¹¹⁸ In doing so, the Court of Appeals emphasized “the importance of the actual malice standard to a wide-open and vigorous discussion of critical public issues,” and observed that “Rhodes joined in just such a discussion in this instance.”¹¹⁹ The court found that CACI became a public figure when the U.S. Army’s military intelligence branch engaged it “to provide civilian interrogators at Abu Ghraib,” holding that “CACI surely knew when it accepted the interrogation work that it was potentially exposing itself to the inhospitable climate of media criticism.”¹²⁰ 

The Court then found that Rhodes had not made any of the allegedly defamatory statements with actual malice, because she had relied on and reasonably interpreted reputable prior reporting; it concluded, quoting Sullivan, that “[t]his case reminds us that ‘[i]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public [issues], and this opportunity is to be afforded for vigorous advocacy’ that may be caustic and even exaggerated.”¹²¹ Indeed, the court explained, “[t]his essential privilege minimizes the danger of self-censorship on the part of those who would criticize, thus allowing robust debate about the actions of public officials and public figures (including military contractors such as CACI) who are conducting the country’s business.” Id. The necessity of this kind of reporting cannot be seriously disputed. 

C. The Actual Malice Standard Incentivizes Responsible Journalism and Disincentivizes Willful Blindness

Every lawyer who has been involved in defending libel cases would agree that publishing without investigation, fact-checking or editing is never the optimal legal strategy for journalism or any form of expression.  There are clear limits to the protection that the actual malice standard provides, and willfully blind publishers run a substantial risk of liability— particularly if they consciously ignore evidence that might disprove their reporting.  Caselaw over the last 25 years makes clear that courts will not hesitate to find evidence of actual malice if a publisher knowingly avoids the truth, which is why no legitimate news organization (or lawyer advising it) would agree with the assertion that it will enjoy legal protection from defamation liability so long as it publishes heedlessly and without taking basic reportorial precautions.

To the contrary, the actual malice standard acts to incentivize responsible journalistic behavior.  Journalists who take active steps to verify their reporting before publication—e.g., consulting multiple sources, seeking comment from the subjects of their reporting, and running down leads—are protected by the actual malice standard because, as a result, they have confidence in the accuracy of their reporting. Here too, the Eleventh Circuit’s decision in Berisha is instructive because, in that case, allegations of actual malice were disproven by evidence of the defendants’ sound journalistic practices.  As the court noted, the author of the book in Berisha “relied on the many prior reports that had similarly accused Berisha of being involved in . . . fraud and in an Albanian criminal underworld”— including a report from the then-U.S. Ambassador to Albania implicating him in corrupt arms dealing.122 Moreover, the author also conducted multiple interviews with eyewitnesses, including the Mayor of Tirana.¹²³ In short, the actual malice standard could not be satisfied because the author engaged in sound journalistic practices.

Reviewing the case law simply does not support the suggestions that “ignorance is bliss” is a viable legal strategy. Instead, application of actual malice standard in real-life cases teaches precisely the opposite. 

In Dodds v. American Broadcasting Co., for example, ABC News broadcast an investigative report about “judges whose conduct seems downright scandalous,” which included a description of the plaintiff, Judge Bruce Dodds, using a prop crystal ball (which would provide basic answers like “yes” or “no”) to “support his decisions.”¹²⁴ Although it was undisputed that Judge Dodds had a toy crystal ball on his desk and referenced it during court proceedings, he argued “that no one could honestly believe that a sitting judge would use a toy in the context of serious judicial proceedings.”125 Of course, no one could dispositively prove what was in Judge Dodds’ mind when he used the crystal ball, but ABC nonetheless prevailed on summary judgment because the report relied on “numerous sources [who] were personally aware of Judge Dodds’ use of the crystal ball in the manner suggested.”126 Moreover, ABC had sought a response from Judge Dodds, who “refused to answer . . . questions or . . . furnish any information at all, as was his prerogative.”127 Based on these undisputed facts, the court held that the actual malice standard protected ABC’s reporting: “ABC satisfied any obligation it may have had by checking the information it received with a number of knowledgeable individuals and by providing Judge Dodds with the opportunity to refute the charges and supply any useful evidence he may have possessed, including the names of any favorable witnesses.”128 The lesson of this case, and innumerable others, is that actual malice protects those who earnestly follow the basic tenets of journalism—including seeking information from different sources as well as from the subject of the story prior to publication. Similarly, reporters are well advised to practice responsible journalism because, as many reported decisions have taught, diligent efforts to report the truth can protect them against liability for inadvertent mistakes.

Just as Sullivan provides positive incentives to engage in rigorous newsgathering prior to publication, the relevant caselaw also offers strong disincentives against the sort of feckless reporting that critics of Sullivan fear. Where there are supportable factual allegations of fabrication, evidence that the defendants’ sources could not have backed up their reporting, or where the defendant had access to information that cast doubt on their work, courts have not hesitated to find actual malice, as the numerous cases cited in Section I confirm.  Simply put, in reality, the actual malice actively disincentivizes the kind of irresponsible journalism Justice Gorsuch and others have suggested Sullivan may promote.

III.      CONCLUSION

Though the Sullivan rule established a “high bar to recovery” for public official and public figure libel cases, it has not evolved “into an effective immunity from liability.” As the cases described in this Chapter show, Sullivan has neither dissuaded public officials or public figures from bringing libel suits, nor prevented those suits from surviving a motion to dismiss or for summary judgment. Rather, the actual malice rule continues to serve its intended purpose of providing essential “breathing space” for reporting on matters of public concern. Contrary to the conventional wisdom among Sullivan’s critics that the rule promotes sensational or careless journalism, the caselaw reflects the opposite. In reality, the Sullivan rule incentivizes strong editorial processes and responsible reporting. To protect that kind of journalism and the democratic values it in turn fosters, Sullivan and its progeny must be preserved. 

---

* This chapter was prepared jointly by attorneys at Ballard Spahr LLP and Davis Wright Tremaine LLP.  These two firms handle a significant percentage of the defamation cases brought against journalists and news media companies across the United States each year.  Members of the firms’ First Amendment litigation teams who contributed to this chapter are:  Tonique Garrett, Mara Gassmann, Max Mishkin, and Lynn Oberlander (Ballard Spahr); and Jack Browning, Sam Cate-Gumpert, Eric Feder, Kelli Sager, Marni Shapiro and Abigail Zeitlin (Davis Wright Tremaine).

2 376 U.S. 254 (1964). 

³ 141 S. Ct. 2424, 2329 (2021) (Gorsuch, J., dissenting from denial of certiorari).

4 See Logan, Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, 81 Ohio St. L. J. 759, 794 (2020) [hereinafter “Logan”]. 

5 See Berisha, 141 S. Ct. at 2424-25 (Thomas, J., dissenting from denial of certiorari); McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari) (“[T]here appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.”).

6 See, e.g., Blankenship v. Fox News Network, LLC, 2022 WL 321023, at *15 n.24 (S.D.W. Va. Feb. 2, 2022) (referencing former coal executive and candidate for U.S. Senate and U.S. presidency Don Blankenship) (“Mr. Blankenship notes that he believes that the court ‘is not, and should not be[,] bound by the limits of New York Times Co. v. Sullivan in the present circumstances,’” and “generally asserts that the heightened standards imposed by Sullivan and its progeny on all plaintiffs who qualify as public figures is not in keeping with the First Amendment’s free-speech protections.”); Nunes v. Lizza, 12 F.4th 890, 899 (8th Cir. 2021) (in lawsuit filed by former California Congressman and frequent libel plaintiff Devin Nunes) (“On appeal, Nunes suggests that the actual malice standard of New York Times v. Sullivan should be reconsidered . . . but of course we are bound to apply it. Under that demanding standard, we agree with the district court that the complaint is insufficient to state a claim of actual malice as to the original publication.”) (internal citations omitted); Moore v. Cecil, 2021 WL 1208870, at *1 (N.D. Ala. Mar. 31, 2021) (former Alabama Supreme Court Chief Justice and candidate for U.S. Senate Roy Moore) (“Moore challenges the constitutionality of the New York Times actual malice requirement, citing Justice Thomas’s recent statement. . . . Of course, district courts must follow Supreme Court precedent, so this court must apply the New York Times actual malice standard.”); Palin v.  New York Times Co., 482 F. Supp. 3d 208, 214-15 (S.D.N.Y. 2020) (former Alaska governor and candidate for U.S. Vice President Sarah Palin) (“What plaintiff is really asking, then, is for this Court either to ‘overrule’ New York Times v. Sullivan or else to distinguish that case on the facts and refuse to apply the actual malice rule here.  To the extent those are, in fact, different requests, the Court declines them both.”) (internal citations omitted). 

7 In the two most recent cases where the Supreme Court evaluated the actual malice standard in a case involving a media defendant, the Court found that the plaintiff had met its burden. See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) (reversing grant of summary judgment for failure to establish actual malice where reporter had altered quotes in manner that arguably rendered them to be substantially false); Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) (upholding jury verdict that newspaper acted with actual malice).

8 Berisha, 141 S. Ct. at 2428 (citing Logan, supra, at 808-10). 

9 Whether a case gets before a jury is not a true means of measuring the “success” of a defamation claim.  Given the substantial expense of litigation, and the unpredictability of juries, the pressure to settle may be overwhelming, particularly for smaller publishers and individual journalists.  Accordingly, simply surviving a motion to dismiss may be enough for plaintiffs in a defamation case to achieve their goals, whether those are financial awards or retractions, by way of settlement.  See Chap. 3 supra, at 120-121.  

Although criticism of Sullivan often ignores the significant expense that results from prolonged litigation, jurists have long recognized its potential chilling effect on First Amendment-protected speech. As then-Judge (now-Justice) Kavanaugh noted in Kahl v. Bureau of National Affairs, Inc., 856 F.3d 106, 116 (D.C. Cir. 2017), “[s]ummary proceedings ‘are essential in the First Amendment area because if a suit entails ‘long and expensive litigation,’ then the protective purpose of the First Amendment is thwarted even if the defendant ultimately prevails.’” (citations omitted).  See also National Review, Inc. v. Mann, 140 S. Ct. 344, 348 (2019) (Alito, J., dissenting from denial of certiorari) (“A journalist who prevails after trial in a defamation case will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney’s fees.  Those prospects may deter the uninhibited expression of views that would contribute to healthy public debate.”); Hatfill v.  New York Times Co., 427 F.3d 253, 255 (4th Cir. 2005) (Wilkinson, J., dissenting from denial of rehearing en banc) (internal citations omitted) (“Even if liability is defeated down the road, the damage has been done.  The defendant in this case may well possess the resources necessary for protracted litigation, but smaller dailies and weeklies in our circuit most assuredly do not.  The prospect of legal bills, court appearances, and settlement conferences means that all but the most fearless will pull their punches even where robust comment might check the worst impulses of government and serve the community well.  To allow litigation to impose large costs will dull democracy at the local level, because the monetary impacts of litigation for all but the largest media organizations will prove unacceptably high.”).

10 Berisha, 141 S. Ct. at 2428 (quoting Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 207 (1993) (reviewing Lewis, Make No Law: The Sullivan Case and the First Amendment (1991)).

11 Berisha, 141 S. Ct. at 2428 (citing Logan, supra, at 778). 

12  Id. 

13 Id. at 2428.

14 Sullivan, 376 U.S. at 271-72.

15 Logan, supra, at 810.

¹⁶ 541 F. Supp. 3d 1354 (S.D. Fla. 2021).

¹⁷ 2019 WL 2518833 (E.D. Tex. Apr. 17, 2019), adopted, 2019 WL 3712026 (E.D. Tex. Aug. 7, 2019).

¹⁸ 2021 WL 3550974 (D.D.C. Aug. 11, 2021), appeals filed sub nom. US Dominion, Inc. v. My Pillow, Nos. 21-7103, 21-7104 (D.C. Cir. Jan. 20, 2022)

¹⁹ 12 F.4th 890 (8th Cir. 2021).

20 Pistilli-Leopardi v. MediaNews Grp., Inc., 2020 WL 3967992, at *6 (N.J. Super. Ct. App. Div. July 14, 2020).

21 Biro v. Condé Nast, 807 F.3d 541, 545-46 (2d Cir. 2015) (citing Tiversa Holding Corp. v. LabMD, Inc., 2014 WL 1584211, at *7 (W.D. Pa. Apr. 21, 2014); Lynch v. Ackley, 2012 WL 6553649, at *9 (D. Conn. Dec. 14, 2012); Ciemniecki v. Parker McCay P.A., 2010 WL 2326209, at *14 (D.N.J. June 7, 2010)).

22 Ornelas v. City of Pomona, 2010 WL 11597412, at *3 (C.D. Cal. Apr. 15, 2010).  See also Ratner v. Kohler, 2018 WL 1055528, at *9 (D. Haw. Feb. 26, 2018) (denying motion to dismiss because plaintiff, a well-known Hollywood film director/producer, presented sufficient allegations that defendant knew at the time she posted a Facebook post alleging plaintiff had raped her that the rape did not occur); Colborn v. Netflix Inc., 2021 WL 2138767 (E.D. Wis. May 26, 2021) (denying motion to dismiss where defendants allegedly edited footage in a misleading manner); Chapman v. Journal Concepts, Inc., 2008 WL 5381353, at *15 (D. Haw. Dec. 24, 2008) (denying motion to dismiss, finding the plaintiff plausibly alleged that defendants knew their reporting was false and relied on fabricated quotations from doctored audiotapes); Sharpe v. Landmark Commc’ns, 2009 Va. Cir. LEXIS 2075 (Cir. Ct. Norfolk Cty. Apr. 9, 2009) (denying motion for summary judgment with respect to defamatory quotations attributed to plaintiff that he alleged he never made).

23 Shelton v. Bauer Publ’g Co., 2016 WL 1574025, at *11 (C.D. Cal. Apr. 18, 2016). 

24 Anaya v. CBS Broad. Inc., 626 F. Supp. 2d 1158 (D.N.M. 2008).

25 No Witness, LLC v. Cumulus Media Partners, LLC, 2007 U.S. Dist. LEXIS 83761, at *24 (N.D. Ga. Nov. 13, 2007).  See also Moore, 2021 WL 1208870 (denying summary judgment in libel case filed by Roy Moore against creators of a political advertisement aired during his campaign to become an Alabama Senator, based on evidence that allegations from two separate incidents were spliced together to create a deliberately false accusation that Moore made sexual advances on a 14-year-old girl). Roy Moore has been a particularly prolific defamation plaintiff, having filed at least three suits over allegations of sexual improprieties with minors when he was a local prosecutor. 

26 Farmland Partners Inc. v. Fortunae, 2021 WL 1978739, at *2 (D. Colo. May 18, 2021).

27 Wynn v. Bloom, 852 F. App’x 262, 264 (9th Cir. 2021). 

28 Gilmore v. Jones, 370 F. Supp. 3d 630, 678 (W.D. Va. 2019).

29 Palin v.  New York Times Co., 940 F.3d 804, 815 (2d Cir. 2019). 

30 See Gattis, Roy Moore Trial: Both sides claim victory after jury says neither party defamed the other, AL.com (Feb. 2, 2022).  This is just one of several defamation suits filed by Moore over the allegations from multiple women that emerged during his Senate campaign.  He also sued Sascha Baron Cohen, a PAC that ran advertisements during his campaign, and two other women who alleged sexual harassment by him.  Stracqualursi, Failed Alabama Senate candidate Roy Moore files defamation suit over ads, CNN (July 25, 2018); Shepherd, Judge tosses Roy Moore’s $95 million defamation suit against Sacha Baron Cohen: ‘Clearly a joke’, Wash. Post, July 14, 2021.

31 See Almánzar v. Kebe, 2021  WL 5027798 (N.D. Ga. July 8, 2021);  Donahue, Cardi B Wins Another $3M in Defamation Case Against ‘Malicious’ YouTuber, Billboard, Jan. 25, 2022.

32 Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 867 (W.D. Va. 2016). 

33 Id. at 868 (quoting Columbia University Journalism School report). 

34 Id.  

35 Eramo, 209 F. Supp. 3d at 868. 

³⁶ Id. at 869-71.

³⁷ Id. at 872.

³⁸ See Gardner, Rolling Stone Settles Last Remaining Lawsuit Over UVA Rape Story, Hollywood Reporter, Dec. 21, 2017.

³⁹ Young v. Gannett Satellite  Info. Network, Inc., 734 F.3d 544 (6th Cir. 2013). 

⁴⁰ Id. at 550.  See also Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785, 791 (Ky. 2005) (Kentucky Supreme Court reinstated $4 million jury verdict in favor of amusement park involving a series of reports about an accident on one of the park’s roller coasters; the court noted that even though “the burden on a plaintiff in a libel action is significant,” the amusement park had “sufficiently demonstrated that there was clear and convincing evidence of actual malice.”); Parson v. Farley, 800 F. App’x 617 (10th Cir. 2020) (affirming jury award in defamation case filed by candidate for local office against author of letter accusing him of misconduct), cert. denied, 141 S. Ct. 116 (2020); Desmond v. News & Observer Publ’g Co., 846 S.E.2d 647 (N.C. 2020); Tanner v. Ebbole, 88 So. 3d 856 (Ala. Civ. App. 2011); Lake Park Post, Inc. v. Farmer, 590 S.E.2d 254 (Ga. Ct. App. 2003); Richmond v. Thompson, 901 P.2d 371, 378 (Wash. Ct. App. 1995), aff’d, 922 P.2d 1343 (Wash. 1996).

⁴¹ Berisha, 141 S. Ct. at 2429 (Gorsuch, J.). 

⁴² Id.

⁴³ SeeSection II.A. supra; Chap. 2, supra, at 83-86.

⁴⁴ National Review, Inc. v. Mann, 140 S. Ct. 344, 348 (2019) (Alito, J., dissenting from denial of certiorari)(“requiring a free speech claimant to undergo a trial after a ruling that may be constitutionally flawed is no small burden”); Kahl v. Bureau of Nat’l  Affairs, Inc., 856 F.3d 106, 116 (D.C. Cir. 2017) (Kavanaugh, J.) (“Summary proceedings ‘are essential in the First Amendment area because if a suit entails ‘long and expensive litigation,’ then the protective purpose of the First Amendment is thwarted even if the defendant ultimately prevails.’”) (citation omitted). A journalist who ultimately prevails after trial in a defamation case will have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney’s fees.  Those prospects may deter the uninhibited expression of views that would contribute to healthy public debate.  See also Farah v. Esquire Magazine, 736 F.3d 528, 534 (D.C. Cir. 2013)); Cox Broad. Corp. v. Cohn,420 U.S. 469, 485 (1975) (observing that “there should be no trial at all” if the statute at issue offended the First Amendment). 

⁴⁵ Berisha, 141 S. Ct. at 2429.

⁴⁶ Berisha v. Lawson, 973 F.3d 1304, 1310 (11th Cir. 2020). 

⁴⁷ Id. at 1308, 1311-1314. 

⁴⁸ Berisha, 141 S. Ct. at 2428-29.

⁴⁹ 973 F.3d at 1306. 

⁵⁰ Id. at 1307-08. 

⁵¹ Antony J. Blinken, Public Designation of Albanian Sali Berisha Due to Involvement in Significant Corruption (May 19, 2021).

⁵² Sullivan, 376 U.S. at 270. 

⁵³ Berisha, 973 F.3d at 1312. 

⁵⁴ Berisha, 141 S. Ct. at 2428 (J. Gorsuch, dissenting from denial of certiorari).

⁵⁵ Sullivan, 376 U.S. at 278.

⁵⁶ See, e.g., Moreno v. Crookston Times Printing Co., 2002 WL 4600 (Minn. Ct. App. Jan. 2, 2002) (newspaper’s article about allegations made against police officer during a city council meeting was not protected by fair report privilege because article relied on material extraneous to the meeting; summary judgment granted to newspapers on actual malice grounds).

⁵⁷ See, e.g., Jankovic v. International Crisis Grp., 822 F.3d 576 (D.C. Cir. 2016) (nonprofit’s report about links between Serbian businessman and regime of Slobodan Milosevic was not protected opinion; summary judgment granted to nonprofit on actual malice grounds).

⁵⁸ See, e.g., Nunes v. WP Co. LLC, 513 F. Supp. 3d 1, 7-8 (D.D.C. 2020) (California Representative Devin Nunes sued Washington Post over coverage of Trump Administration’s investigation of alleged leaks); see also Harvey v. Cable News Network, Inc., 520 F. Supp. 3d 693 (D. Md. 2021) (Rep. Nunes’ aide sued CNN over reporting on his alleged involvement in criminal and unethical conduct).

⁵⁹ See, e.g., Blankenship v. Fox News Network,  LLC, 2022 WL 321023 (S.D.W. Va. Feb. 2, 2022) (former mining executive and U.S. Senate candidate sued dozens of journalists and media companies for reports about his criminal history); Arpaio v. Cottle, 404 F. Supp. 3d 80 (D.D.C. 2019) (former Maricopa County, Arizona Sheriff and U.S. Senate candidate Joseph Arpaio sued New York Times columnist for a report critical of Arpaio’s practices as sheriff); Arpaio v. Zucker, 414 F. Supp. 3d 84, 88 (D.D.C. 2019) (Arpaio sued CNN, Rolling Stone, and HuffingtonPost.com over reporting about his criminal history).

⁶⁰ See, e.g., Jacoby v. Cable News Network, Inc., 2021 WL 5858569 (11th Cir. Dec. 10, 2021) (political operative hired by Kanye West to assist with West’s presidential run sued CNN over report alleging that he had a history of engaging in voter fraud); Donald J. Trump for President, Inc. v. CNN Broad., Inc., 500 F. Supp. 3d 1349 (N.D. Ga. 2020) (Donald J. Trump campaign sued CNN over news reporting about alleged attempt to solicit politically damaging information about its opponents from foreign governments).

⁶¹ See, e.g., Fairfax v. CBS Corp., 2 F.4th 286 (4th Cir. 2021) (Former Virginia Lt. Governor Justin Fairfax sued CBS over a report in which two women accused him of sexual assault); Greenberg v. Horizon Ark. Publ’ns, Inc., 522 S.W.3d 183 (Ark. Ct. App. 2017) (former Arkansas state representative brought libel claims against the Benton Courier over a series of negative editorials that criticized him for engaging in misleading campaign tactics and potentially violating ethics rules).

⁶² For example, an Indiana county surveyor and his deputy sued WAVE, a Clark County television station, over an investigative series questioning whether the surveyor was improperly using his position to benefit his private engineering and surveying firm, including by using the deputy, who was paid as a county employee, to do the private firm’s business.  See Isgrigg v. Love, 2002 WL 215995 (S.D. Ind. Feb. 7, 2002).

⁶³ See, e.g., Horne v. WTVR, LLC, 893 F.3d 201 (4th Cir. 2018) (Virginia school district official sued local TV station for broadcast reporting about her prior felony conviction); Davidson v. Baird, 438 P.3d 928 (Utah 2019) (City Manager of Moab, Utah sued Canyon Country Zephyr over reports that he had engaged in improper insider deals with cybersecurity company);Welch v. American Publ’g Co. of Ky., 3 S.W.3d 724 (Ky. 1999) (mayor of Middlesboro, Kentucky, sued Middlesboro Daily News over advertisement opposing his re-election); Torgerson v. Journal/Sentinel, Inc., 563 N.W.2d 472 (Wis. 1997) (former Wisconsin deputy commissioner of insurance sued Milwaukee Journal Sentinel after it published series of articles describing possible ethical violations).

⁶⁴ See, e.g., Revell v. Hoffman, 309 F.3d 1228 (10th Cir. 2002) (former FBI officer sued book author and his publisher over books reporting that the officer was involved in extra-judicial killings); Young v. Wilham, 406 P.3d 988 (N.M. Ct. App. 2017) (New Mexico reserve police officer sued the Albuquerque Journal over reporting that he had exceeded his authority to make arrests and had improperly collected overtime pay);Moreno v. Crookston Times Printing Co., 2002 WL 4600 (Minn. Ct. App. Jan. 2, 2002) (Minnesota police officer sued Crookston Daily Times over an article discussing allegations that he was selling drugs).

⁶⁵ See, e.g., Eisenstein v. WTVF-TV, 2016  WL 2605752 (Tenn. Ct. App. May 3, 2016) (Tennessee general sessions judge sued WTVF-TV over broadcasts reporting on investigation into whether the judge hired an unlicensed individual to serve as psychologist for a drug court program); Sikora v. Plain Dealer Publ’g Co., 2003 WL 21419279 (Ohio Ct. App. 2003) (recently elected administrative judge sued Cleveland Plain Dealer over editorial criticizing the judge’s conduct during the election); Wilson v. Cowles  Publ’g Co., 101 Wash. App. 1077 (2000) (Washington judge sued Spokesman-Review over article reporting she had been reading a novel while presiding over jury trial).

⁶⁶ Smith v. Huntsville Times Co., 888 So. 2d 492 (Ala. 2004).

⁶⁷ Dodds v.  American Broad. Co.., 145 F.3d 1053 (9th Cir. 1998).

⁶⁸ Cabello-Rondon v. Dow Jones & Co., 720 F. App’x 87 (2d Cir. 2018).

⁶⁹ Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 235 (D.C. Cir.), cert. denied, 142 S. Ct. 427 (2021).

⁷⁰ See, e.g., Turner v. Wells, 879 F.3d 1254 (11th Cir. 2018) (Miami Dolphins head coach sued Paul Weiss attorneys for publishing report about alleged culture of bullying that led a player to quit the team) ; Pippen v. NBCUniversal Media, LLC, 734 F.3d 610 (7th Cir. 2013) (former NBA star Scottie Pippen sued CNBC and other media organizations over reports that Pippen lost some of his fortune to bad investments and had gone bankrupt); Greenberg v. Spitzer, 132 N.Y.S.3d 601 (N.Y. Sup. Ct. 2020) (billionaire Hank Greenberg sued former New York Governor and Attorney General Eliot Spitzer over Spitzer’s assertion that Greenberg had committed fraud while head of AIG); Murray v. Chagrin Valley Publ’g Co., 25 N.E.3d 1111 (Ohio Ct. App. 2014) (coal company executive Bob Murray sued Chagrin Valley Times for publishing news report, editorial, and editorial cartoon commenting on Murray’s firing of 156 employees the day after President Obama’s reelection); Murray v. Knight-Ridder, Inc., 2004 WL 333250 (Ohio Ct. App. 2004) (Murray sued Akron Beacon Journal over series of articles reporting about air pollution in Ohio); Jackson v. Paramount Pictures Corp., 68 Cal. App. 4th 10 (1998) (Michael Jackson sued news program Hard Copy over reports discussing search for and purported existence of videotape showing him engaged in sexual conduct with underage boy). See also VanderSloot v. Foundation for Nat’l Progress, No. CV 2013-532, 2015 BL 462704 (Idaho 7th Dist. Ct. Oct. 6, 2015) (billionaire sued magazine for article reporting he “outed” and “bashed” local reporter; magazine reports spending over $2.5 million in legal costs before winning on summary judgment).

⁷¹ See, e.g., Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230 (11th Cir. 1999) (Florida real estate moguls sued ABC over broadcast reporting on their exploitation of investors); Lam v. Univision Commc’ns, Inc., 329 So. 3d 190 (Fla. Ct. App. 2021) (Guatemalan megachurch pastor sued Univision over broadcast reporting that he had accepted money from drug trafficker); Kassouf v. Cleveland City Magazines, Inc., 755 N.E.2d 976 (Ohio Ct. App. 2001) (real estate mogul known as the “parking czar” of Cleveland sued Cleveland Magazine over article reporting on his indictment on tax-related charges).

⁷² See, e.g., Jankovic v. International Crisis  Grp., 822 F.3d 576 (D.C. Cir. 2016) (Serbian oligarch sued nonprofit over report alleging plaintiff profited from his association with ousted Slobodan Milosevic regime).

⁷³ See, e.g., OAO Alfa Bank v. Center for Pub. Integrity, 387 F. Supp. 2d 20 (D.D.C. 2005) (two powerful Russian oligarchs tied to Russian government, and each of their companies, sued the Center for Public Integrity over allegations that they had connections to organized crime and had engaged in drug trafficking). 

⁷⁴ Deripaska v. Associated Press, 282 F. Supp. 3d 133 (D.D.C. 2017).

⁷⁵ See, e.g., BYD Co. v. VICE Media LLC, 531 F. Supp. 3d 810 (S.D.N.Y. 2021) (Chinese manufacturer of N95 masks and other equipment sued VICE over article discussing manufacturer’s purported use of forced labor); BYD Co. v. Alliance for Am. Mfg., 2021 WL 3472386 (D.D.C. Aug. 6, 2021) (same manufacturer sued nonprofit organization over blog posts asserting that manufacturer used forced labor, benefitted from links to the Chinese government and military, and that its N95 masks failed federal certification in U.S.), appeal docketed, No.21-7099 (D.C. Cir. Sept. 9, 2021).

⁷⁶ See, e.g., Pegasus v. Reno Newspapers, Inc., 57 P.3d 82 (Nev. 2002) (restaurant owners sued Reno Gazette-Journal for publishing negative reviews); Beef Prods., Inc. v. ABC,2014 WL 12710659 (S.D. Cir. Ct. Mar. 24, 2018) (manufacturers of lean finely textured beef,  referred to as “Pink Slime,” sued ABC for series of reports and claimed damages of $1.9 billion; weeks into trial, case settled for a minimum of $177 million, according to news reports, making it largest libel settlement in U.S. history; reports were not retracted and remain online);Nord, ABC settled ‘pink slime’ defamation suit for more than $177 million, Chicago Trib., Aug. 10, 2017.

⁷⁷ See, e.g., Church of Scientology Int’l v. Behar, 238 F.3d 168 (2d Cir. 2001) (Church of Scientology sued Time over highly critical article asserting the Church was “ruthless global scam” “pos[ing] as a religion”).

⁷⁸ See CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280 (4th Cir. 2008) (private security firm with contract at Abu Ghraib sued radio broadcaster over program alleging that it was responsible for torture and related abuses at the prison).

⁷⁹ See, e.g., Bannum, Inc. v. Citizens for a Safe Ward Five, Inc., 383 F. Supp. 2d 32 (D.D.C. 2005) (private prison company sued community board and local activists based on publication alleging that company circumvented zoning laws and illegally influenced public officials to obtain permits).

⁸⁰ To the contrary, the Supreme Court repeatedly has stated that “the erroneous statement of fact is not worthy of constitutional protection.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). See also United States v. Alvarez, 567 U.S. 709, 746 (2012) (Alito, J., dissenting) (“Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value.”) (collecting cases).

⁸¹ Sullivan, 376 U.S. at 271.

⁸² Gertz, 418 U.S. at 342; see also Alvarez, 567 U.S. at 750 (Alito, J., dissenting) (citing Gertz).

⁸³ Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

⁸⁴ Buckley v. Valeo,424 U.S. 1, 14-15 (1976). 

⁸⁵ Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). 

⁸⁶ 2022 WL 321023 (S.D.W. Va. Feb. 2, 2022).

⁸⁷ Blankenship v. Napolitano, 451 F. Supp. 3d 596, 617 (S.D.W. Va. 2020). 

 ⁸⁸ Blankenship, 2022 WL 321023, at *34. 

⁸⁹ Id. (citing Sullivan, 376 U.S. at 271-72). 

⁹⁰ Sullivan, 376 U.S. at 271. 

⁹¹ 238 F.3d 168 (2d Cir. 2001). 

⁹² Id. at 174. 

⁹³ Id.

⁹⁴ Id. 

⁹⁵ Id. at 175.

⁹⁶ Id.  The Church similarly attempted to establish “reckless disregard of the truth” by claiming that the author purportedly “omitted” information, including by failing to interview the roommate of the young Scientologist who had committed suicide. The court found, however, that these omissions were “insignificant when viewed against the backdrop of [the author’s] investigation as a whole,” which included interviewing the boy’s parents, friends and teachers, reviewing police records, and attempting to interview the director of the Scientology-affiliated center that the boy was attending.  Id. The absence of one additional interview, given all these efforts, did not give rise to an “inference of purposeful avoidance of the truth.”  Id. 

⁹⁷ See, e.g., Wright, Going Clear: Scientology, Hollywood and the Prison of Belief (2013). 

⁹⁸ BYD Co. v. All. for Am. Mfg., 2021 WL 3472386, at *1 (D.D.C. Aug. 6, 2021), appeal docketed, No.21-7099 (D.C. Cir. Sept. 9, 2021). 

⁹⁹ See id.; BYD Co. v. VICE Media LLC, 531 F. Supp. 3d 810 (S.D.N.Y. 2021). 

¹⁰⁰ Id. at 823. Although BYD was subject to a provision of the 2020 National Defense Authorization Act prohibiting the use of federal funds for purchase certain items from companies owned or subsidized by the Chinese government, including BYD, the company also took issue with the headline’s use of the word “blacklist.”  The court rejected that argument as well. 

¹⁰¹ See2021 WL 3472386, at *1. 

¹⁰² Id. at *6. 

¹⁰³ Id.; see also VICE, 531 F. Supp. 3d at 824.

¹⁰⁴ Alliance for Am. Mfg., 2021 WL 3472386, at *5; see also VICE, 531 F. Supp. 3d at 825 (noting “the parallels between what is stated in the [ASPI] Report and what BYD objects to in the article”). 

 ¹⁰⁵ VICE, 531 F. Supp. 3d at 826.  

¹⁰⁶ 2021 WL 3472386, at *6. In a similar vein, the statements concerning links between BYD and the Chinese government were extensively catalogued in a report from another organization, among other sources. BYD offered only conclusory allegations that the Alliance should have known that BYD was a private company; moreover, the court found that “[b]eing a private corporation . . . is not exclusive of, or a bar against, being ‘under the control of’ or being an ‘arm of the state.’” Alliance for Am. Mfg., 2021 WL 3472386, at *7 (citation omitted). 

¹⁰⁷ 376 U.S. at 283. 

¹⁰⁸ See, e.g., Nguyen, The U.S. government is becoming more dependent on contract workers, Marketplace, Jan. 17, 2019. 

¹⁰⁹ Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162 (1967) (Warren, C.J., concurring). 

¹¹⁰ 536 F.3d 280 (4th Cir. 2008).

¹¹¹ Id. at 284. 

¹¹² Id. at 284-85. 

¹¹³ Id. at 285. 

¹¹⁴ Id.

¹¹⁵ Id. at 284. 

¹¹⁶ Id. at 288. 

¹¹⁷ Id. at 288-92.

¹¹⁸ Id. at 292-93

¹¹⁹ Id. at 294. 

¹²⁰ Id. at 295.

¹²¹ Id. at 304. 

122 Berisha, 973 F.3d at 1313. 

¹²³ Id. at 1313.

¹²⁴ 145 F.3d 1053-61 (9th Cir. 1998).

125 Id. 

126 Id. 

127 Id. at 1063. 

128 Id.