President Donald Trump’s bid to revive his defamation case against CNN over the network’s use of the phrase “big lie” regarding his 2020 election claims is now at a critical juncture at the Supreme Court.
When the president filed his petition to the justices last month, the network’s opposition brief became due Sept. 21. But ahead of that deadline, CNN this week waived its right to respond to the petition.
There are two basic routes that the high court can take in light of the network’s waiver.
It can call for a response, in which case CNN would file one and the justices would evaluate it before deciding whether to grant review of Trump’s petition.
Or it can do nothing and let the petition proceed to be scheduled for one of the justices’ upcoming private conferences at which they consider pending matters; if the petition is conferenced without the court calling for a response from CNN, then the denial of Trump’s petition is a near certainty. It would amount to the network saying there is nothing worth responding to and the justices effectively agreeing via their silence.
A single justice can call for a response. It takes four justices to grant review.
The court issues order lists after the justices’ conferences, listing which petitions are granted and which are denied. The lists mainly comprise denials, because the court only grants review in a relative handful of cases compared with the thousands of petitions it receives annually.
We do not yet know which route the court will take in Trump v. CNN, and the court is not on a firm deadline to decide. Even if the court agrees to review the petition, that does not mean that Trump would win the case in the end, only that he would have a chance at doing so.
While petitions like the one in this case are filed year-round, the justices are set to return to the bench in early October for their next term. They typically hear arguments from October through April and decide all of the term’s argued cases by July. Trump v. CNN could be added to the coming term’s docket in time for a decision next year, but that’s only if the justices grant review of the president’s petition in the first place, which is far from guaranteed.
Earlier this week, Trump lashed out at the court, including his own three appointees, after a majority of the justices rejected his desired mail ballot restrictions for the November midterm elections. In a social media post, he said the court’s “inability and unwillingness to do the right thing for our Country will go down, in a very negative way, in the annals of History.” He went on to say in the lengthy post that it wasn’t easy for him to criticize the court and that “it will likely cost me dearly for years to come – but I feel it my obligation and duty, as President, to do so for the America we love!”
The CNN petition is only one piece of the president’s personal litigation in which he hopes to convince the justices to use their discretion to intervene, on top of his appeals against E. Jean Carroll and Hillary Clinton, to name two other prominent examples.
In his CNN petition, Trump’s personal lawyers said the consequences of his appeal are “especially grave” because, they said, the network “launched a false campaign against the President of the United States, first while in office and then as a leading candidate to return to that office.”
In March, the Atlanta-based U.S. Court of Appeals for the 11th Circuit declined to consider Trump’s case after a three-judge panel of the court upheld a district judge’s ruling against him. Two of the three judges from the unanimous panel ruling were Trump appointees, as was the district judge who dismissed his suit in 2023. The judge did so on the grounds that the statements at issue were opinion, not factually false statements, and that Trump hadn’t shown that CNN acted with “actual malice.”
Trump argued that the use of the “big lie” phrase was intended to associate him with Adolf Hitler and Nazi propaganda. But the appellate panel deemed his claim “unpersuasive,” calling his assumption that the term is clear enough to be a factual statement “untenable.” It called his other claims “meritless.”
At the high court, the legal question the president wants the justices to consider is whether the First Amendment protects a publisher from defamation liability when, as Trump put it, the publisher “conveys provably false factual accusations through a pejorative label and accompanying inflammatory imagery.”
In June, the high court declined to review a petition from Alan Dershowitz in his own defamation case against CNN. Dershowitz said he was defamed by coverage of his statements about the scope of impeachable offenses when he represented Trump during his first impeachment trial in his first term.
Justices Clarence Thomas and Neil Gorsuch dissented from the denial, echoing their prior calls for the court to revisit a landmark precedent in this area of the law and the actual-malice standard that public figures must meet to bring successful defamation claims.
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