• by Ray Schultz , Columnist, February 8, 2025

Steve Wynn, the former casino magnate and now a reputed mega Trump donor, has petitioned the U.S. Supreme Court to overturn or at least scale back the New York Times v. Sullivan decision it issued in 1964. 

Wynn has applied for cert — that is, acceptance of his case by the high court. 

He claims SCOTUS should revisit its actual malice standard that was applied first to public servants in New York Times Co. v. Sullivan and then to public figures like himself in Curtis Publishing Co. v. Butts. 

Publishers and editors have reason to be alarmed. One might see this move by Wynn as akin to Trump’s general campaign against the media. And based on past comments, Justices Alito, Thomas, Gorsuch and even Kagan seem inclined to agree with Wynn.

What is Wynn's standing to file such a petition? He had pursued a defamation case against Associated Press after AP had published an article in 2018 accusing him of committing a “rape” in the 1970s.

“This article relied on two citizen complaints asserting decades-old sexual assault allegations,” the petition states. “One complaint spun a fantastic tale about giving birth to a purple doll in a gas station restroom that even the Associated Press reporter who authored the article — Respondent Regina Garcia Cano — called ‘crazy.’” 

Indeed, the defendants in that case published their article “without (1) factchecking the allegations, (2) investigating the allegations, or (3) reaching out to Wynn for a comment before publication,” the petition continues.

The district court eventually found the allegations to be “clearly fanciful or delusional, and therefore, clearly false and defamatory,” it adds.

But Wynn's claim failed, “not because the story's allegations were true or because the defamatory story was otherwise privileged,” he contends. “Rather, Wynn's defamation claim failed solely because of the supposed lack of evidence of Respondents’ actual malice.”

And now Wynn is now asking SCOTUS to consider whether it should “overturn Sullivan's actual malice standard or, at a minimum, overrule the Curtis decision’s expansion of it to public figures.”

We are in no position to comment on the truth of Wynn’s claim. But let’s establish one thing. 

Malice does not mean personal animosity, something that might be impossible to prove in any case. Rather, it can be defined as recklessly or deliberately publishing false, defamatory material — outright lying, if you will. 

This standard would seem to protect factual errors made in good faith. 

Just among friends, we could guess that most cases of actual defamation are driven not by antipathy, but by ambition or political intent. 

With that it mind, let's review some of the precepts learned in J school.

Complaints, news stories, affidavits, depositions and other legal filings are not proof of anything. They must be qualified as such. 

Even when reporters find what they believe is a “smoking gun,” it must be responsibly vetted in fact-checking sessions with editors and lawyers. 

Wynn argues that “media is no longer controlled by companies that employ legions of fact checkers before publishing an article. Instead, everyone in the world has the ability to publish any statement with a few keystrokes.”

True enough. But isn’t AP part of the legacy media? 

Anyway, people who spit out misinformation on the internet may not be easy to identify. And most probably they lack the deep pockets that would make a lawsuit worthwhile. 

That’s why I hope SCOTUS declines to provide Wynn with cert, or to toss out Sullivan or Curtis. It could open the door to a plethora of frivolous and serious suits, or actions designed to intimidate. Even when won, defamation cases can cost publishers plenty of money.

Of course, opinion — even the most wrong-headed and hyperbolic — is protected by the  First Amendment.

But to get back to the rules.... 

Subjects of critical reports must be given the chance to respond to the charges.

Factual errors must be promptly corrected.