Cite as: 594 U. S. ____ (2021) 1 

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

SHKELZEN BERISHA v. GUY LAWSON, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 20–1063. Decided July 2, 2021

The petition for a writ of certiorari is denied.

 JUSTICE THOMAS, dissenting from the denial of certiorari.

In 2015, Guy Lawson published a book detailing the “true 

story” of how three Miami youngsters became international 

arms dealers. 973 F. 3d 1304, 1306 (CA11 2020). A central 

plot point involves the protagonists’ travels to Albania and 

subsequent run-ins with the “Albanian mafia,” a key figure 

of which, the book claims, is petitioner Shkelzen Berisha. 

The book performed well, and Lawson eventually sold the 

movie rights to Warner Bros., which made the feature film

War Dogs. 

Unhappy with his portrayal, Berisha sued Lawson for 

defamation under Florida law. According to Berisha, he is 

not associated with the Albanian mafia—or any dangerous 

group—and Lawson recklessly relied on flimsy sources to 

contend that he was.

The District Court granted summary judgment in favor 

of Lawson. Setting aside questions of truth or falsity, the 

court simply asked whether Berisha is a “public figure.” 

Why? Because under this Court’s First Amendment jurisprudence, public figures cannot establish libel without 

proving by clear and convincing evidence that the defendant acted with “‘actual malice’”—that is with knowledge

that the published material “was false or with reckless disregard of whether it was false.” New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964); accord, Gertz v. Robert 

Welch, Inc., 418 U. S. 323, 334–335, 342 (1974); Curtis Pub-
2 BERISHA v. LAWSON

THOMAS, J., dissenting

lishing Co. v. Butts, 388 U. S. 130, 155 (1967). After concluding that Berisha is a public figure (or at least is one for 

purposes of Albanian weapons-trafficking stories), the court 

found that he had not satisfied this high standard. The 

Eleventh Circuit affirmed.

Berisha now asks this Court to reconsider the “actual 

malice” requirement as it applies to public figures. As I explained recently, we should. See McKee v. Cosby, 586 U. S. 

___, ___ (2019) (opinion concurring in denial of certiorari) 

(slip op., at 2).

This Court’s pronouncement that the First Amendment 

requires public figures to establish actual malice bears “no 

relation to the text, history, or structure of the Constitution.” Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 

251 (CADC 2021) (Silberman, J., dissenting) (emphasis deleted). In fact, the opposite rule historically prevailed: 

“[T]he common law deemed libels against public figures to 

be . . . more serious and injurious than ordinary libels.” 

McKee, 586 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 

7).

The Court provided scant explanation for the decision to 

erect a new hurdle for public-figure plaintiffs so long after 

the First Amendment’s ratification. In Gertz, for example, 

the Court reasoned that public figures are fair targets because “they invite attention and comment.” 418 U. S., at 

345. That is, “public officials and public figures have voluntarily exposed themselves to increased risk of injury from 

defamatory falsehood.” Ibid. But it is unclear why exposing oneself to an increased risk of becoming a victim necessarily means forfeiting the remedies legislatures put in 

place for such victims. And, even assuming that it is sometimes fair to blame the victim, it is less clear why the rule 

still applies when the public figure “has not voluntarily 

sought attention.” 378 F. Supp. 3d 1145, 1158 (SD Fla. 

2018); see also Rosanova v. Playboy Enterprises, Inc., 580 

F. 2d 859, 861 (CA5 1978) (“It is no answer to the assertion 
Cite as: 594 U. S. ____ (2021) 3 

THOMAS, J., dissenting

that one is a public figure to say, truthfully, that one doesn’t 

choose to be”).

The lack of historical support for this Court’s actual-malice requirement is reason enough to take a second look at 

the Court’s doctrine. Our reconsideration is all the more 

needed because of the doctrine’s real-world effects. Public 

figure or private, lies impose real harm. Take, for instance, 

the shooting at a pizza shop rumored to be “the home of a 

Satanic child sex abuse ring involving top Democrats such 

as Hillary Clinton,” Kennedy, ‘Pizzagate’ Gunman Sentenced to 4 Years in Prison, NPR (June 22, 2017), 

www.npr.org/section/thetwo-way/2017/06/22/533941689/

pizzagate-gunman-sentenced-to-4-years-in-prison. Or consider how online posts falsely labeling someone as “a thief, 

a fraudster, and a pedophile” can spark the need to set up 

a home-security system. Hill, A Vast Web of Vengeance, 

N. Y. Times (Jan. 30, 2021), www.nytimes.com/2021/01/30/

technology/change-my-google-results.html. Or think of 

those who have had job opportunities withdrawn over false 

accusations of racism or anti-Semitism. See, e.g., Wemple, 

Bloomberg Law Tried To Suppress Its Erroneous Labor 

Dept. Story, Washington Post (Sept. 6, 2019), www.

washingtonpost.com/opinions/2019/09/06/bloomberg-lawtried-suppress-its-erroneous-labor-dept-story. Or read 

about Kathrine McKee—surely this Court should not remove a woman’s right to defend her reputation in court 

simply because she accuses a powerful man of rape. See 

McKee, 586 U. S., at ___–___ (opinion of THOMAS, J.) (slip 

op., at 1–2).

The proliferation of falsehoods is, and always has been, a

serious matter. Instead of continuing to insulate those who 

perpetrate lies from traditional remedies like libel suits, we 

should give them only the protection the First Amendment 

requires. I would grant certiorari.
Cite as: 594 U. S. ____ (2021) 1 

GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES

SHKELZEN BERISHA v. GUY LAWSON, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 20–1063. Decided July 2, 2021

 JUSTICE GORSUCH, dissenting from the denial of certiorari.

The Bill of Rights protects the freedom of the press not as 

a favor to a particular industry, but because democracy cannot function without the free exchange of ideas. To govern 

themselves wisely, the framers knew, people must be able 

to speak and write, question old assumptions, and offer new 

insights. “If a nation expects to be ignorant and free . . . it 

expects what never was and never will be. . . . There is no 

safe deposit for [liberty] but with the people . . . [w]here the 

press is free, and every man able to read.” Letter from T. 

Jefferson to C. Yancey (Jan. 6, 1816), in 10 The Writings of 

Thomas Jefferson 4 (P. Ford ed. 1899).

Like most rights, this one comes with corresponding duties. The right to due process in court entails the duty to 

abide the results that process produces. The right to speak 

freely includes the duty to allow others to have their say. 

From the outset, the right to publish was no different. At 

the founding, the freedom of the press generally meant the 

government could not impose prior restraints preventing 

individuals from publishing what they wished. But none of 

that meant publishers could defame people, ruining careers 

or lives, without consequence. Rather, those exercising the 

freedom of the press had a responsibility to try to get the 

facts right—or, like anyone else, answer in tort for the injuries they caused.

This principle extended far back in the common law and 

far forward into our Nation’s history. As Blackstone put it, 
2 BERISHA v. LAWSON

GORSUCH, J., dissenting

“[e]very freeman has an undoubted right to lay what sentiments he pleases before the public,” but if he publishes 

falsehoods “he must take the consequence of his own temerity.” 4 W. Blackstone, Commentaries on the Laws of England 151–152 (1769). Or as Justice Story later explained, 

“the liberty of the press do[es] not authorize malicious and 

injurious defamation.” Dexter v. Spear, 7 F. Cas. 624 (No. 

3,867) (CC RI 1825).

This was “[t]he accepted view” in this Nation for more 

than two centuries. Herbert v. Lando, 441 U. S. 153, 158–

159, and n. 4 (1979). Accordingly, “from the very founding” 

the law of defamation was “almost exclusively the business 

of state courts and legislatures.” Gertz v. Robert Welch, 

Inc., 418 U. S. 323, 369–370 (1974) (White, J., dissenting). 

As a rule, that meant all persons could recover damages for 

injuries caused by false publications about them. See Kurland, The Original Understanding of the Freedom of the 

Press Provision of the First Amendment, 55 Miss. L. J. 225, 

234–237 (1985); J. Baker, An Introduction to English Legal 

History 474–475 (5th ed. 2019); Epstein, Was New York 

Times v. Sullivan Wrong? 53 U. Chi. L. Rev. 782, 801–802 

(1986); Peck v. Tribune Co., 214 U. S. 185, 189 (1909).

This changed only in 1964. In New York Times Co. v.

Sullivan, 376 U. S. 254 (1964), this Court declared that 

public officials could no longer recover for defamation as 

everyone had for centuries. Now, public officials could prevail only by showing that an injurious falsehood was published with “‘actual malice.’” Id., at 279–280. Three years 

later, the Court extended its actual malice standard from 

“public officials” in government to “public figures” outside 

government. See generally Curtis Publishing Co. v. Butts, 

388 U. S. 130 (1967). Later still, the Court cast the net even 

wider, applying its new standard to those who have 

achieved “pervasive fame or notoriety” and those “limited” 

public figures who “voluntarily injec[t]” themselves or are 

“drawn into a particular public controversy.” Gertz, 418 
Cite as: 594 U. S. ____ (2021) 3 

GORSUCH, J., dissenting 

U. S., at 351. The Court viewed these innovations “overturning 200 years of libel law” as “necessary to implement 

the First Amendment interest in ‘uninhibited, robust, and 

wide-open’ debate on public issues.” Dun & Bradstreet, Inc. 

v. Greenmoss Builders, Inc., 472 U. S. 749, 766 (1985) 

(White, J., concurring in judgment). 

 Since 1964, however, our Nation’s media landscape has 

shifted in ways few could have foreseen. Back then, building printing presses and amassing newspaper distribution 

networks demanded significant investment and expertise. 

See Logan, Rescuing Our Democracy by Rethinking New 

York Times Co. v. Sullivan, 81 Ohio St. L. J. 759, 794 (2020) 

(Logan). Broadcasting required licenses for limited airwaves and access to highly specialized equipment. See ibid. 

Comparatively large companies dominated the press, often 

employing legions of investigative reporters, editors, and 

fact-checkers. See id., at 794–795. But “[t]he liberty of the 

press” has never been “confined to newspapers and periodicals”; it has always “comprehend[ed] every sort of publication which affords a vehicle of information and opinion.” 

Lovell v. City of Griffin, 303 U. S. 444, 452 (1938); see also 

Sentelle, Freedom of the Press: A Liberty for All or a Privilege for a Few? 2013 Cato S. Ct. Rev. 15, 30–34. And thanks 

to revolutions in technology, today virtually anyone in this 

country can publish virtually anything for immediate consumption virtually anywhere in the world. Logan 803 (noting there are 4 billion active social media users worldwide). 

 The effect of these technological changes on our Nation’s 

media may be hard to overstate. Large numbers of newspapers and periodicals have failed. See Grieco, Pew 

Research Center, Fast Facts About the Newspaper Industry’s Financial Struggles as McClatchy Files for Bankruptcy (Feb. 14, 2020), http://www.pewresearch.org/fact 

-tank/2020/02/14/fast-facts-about-the-newspaper-industrys 

-financial-struggles/. Network news has lost most of its 

viewers. Pew Research Center, Network Evening News 
4 BERISHA v. LAWSON

GORSUCH, J., dissenting

Ratings (Mar. 13, 2006), https://www.journalism.org/

numbers/network-evening-news-ratings/. With their fall 

has come the rise of 24-hour cable news and online media 

platforms that “monetize anything that garners clicks.” Logan 800. No doubt, this new media world has many virtues—not least the access it affords those who seek information about and the opportunity to debate public affairs. 

At the same time, some reports suggest that our new media 

environment also facilitates the spread of disinformation. 

Id., at 804. A study of one social network reportedly found 

that “falsehood and rumor dominated truth by every metric, 

reaching more people, penetrating deeper . . . and doing so 

more quickly than accurate statements.” Id., at 804, n. 302; 

see Vosoughi, Roy, & Aral, The Spread of True and False 

News Online, Science Magazine, Mar. 9, 2018, pp. 1146–

1151. All of which means that “the distribution of disinformation”—which “costs almost nothing to generate”—has 

become a “profitable” business while “the economic model 

that supported reporters, fact-checking, and editorial oversight” has “deeply erod[ed].” Logan 800.

It’s hard not to wonder what these changes mean for the 

law. In 1964, the Court may have seen the actual malice 

standard as necessary “to ensure that dissenting or critical 

voices are not crowded out of public debate.” Brief in Opposition 22. But if that justification had force in a world with 

comparatively few platforms for speech, it’s less obvious 

what force it has in a world in which everyone carries a 

soapbox in their hands. Surely, too, the Court in 1964 may 

have thought the actual malice standard justified in part 

because other safeguards existed to deter the dissemination 

of defamatory falsehoods and misinformation. Logan 794–

795. In that era, many major media outlets employed factcheckers and editors, id., at 795, and one could argue that 

most strived to report true stories because, as “the public 

gain[ed] greater confidence that what they read [wa]s true,” 

they would be willing to “pay more for the information so 
Cite as: 594 U. S. ____ (2021) 5 

GORSUCH, J., dissenting 

provided,” Epstein, 53 U. Chi. L. Rev., at 812. Less clear is 

what sway these justifications hold in a new era where the 

old economic model that supported reporters, fact-checking, 

and editorial oversight is disappearing. 

 These questions lead to other even more fundamental 

ones. When the Court originally adopted the actual malice 

standard, it took the view that tolerating the publication of 

some false information was a necessary and acceptable cost 

to pay to ensure truthful statements vital to democratic 

self-government were not inadvertently suppressed. See 

Sullivan, 376 U. S., at 270–272. But over time the actual 

malice standard has evolved from a high bar to recovery 

into an effective immunity from liability. Statistics show 

that the number of trials involving defamation, privacy, and 

related claims based on media publications has declined dramatically over the past few decades: In the 1980s there were 

on average 27 per year; in 2017 there were 3. Logan 808–

810 (surveying data from the Media Law Resource Center). 

For those rare plaintiffs able to secure a favorable jury verdict, nearly one out of five today will have their awards 

eliminated in post-trial motions practice. Id., at 809. And 

any verdict that manages to make it past all that is still 

likely to be reversed on appeal. Perhaps in part because 

this Court’s jurisprudence has been understood to invite appellate courts to engage in the unusual practice of revisiting 

a jury’s factual determinations de novo, it appears just 1 of 

every 3 jury awards now survives appeal. Id., at 809–810. 

 The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal 

legal strategy. See id., at 778–779. Under the actual malice 

regime as it has evolved, “ignorance is bliss.” Id., at 778. 

Combine this legal incentive with the business incentives 

fostered by our new media world and the deck seems 

stacked against those with traditional (and expensive) journalistic standards—and in favor of those who can dissemi-
6 BERISHA v. LAWSON

GORSUCH, J., dissenting

nate the most sensational information as efficiently as possible without any particular concern for truth. See ibid. 

What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into 

an ironclad subsidy for the publication of falsehoods by 

means and on a scale previously unimaginable. Id., at 804. 

As Sullivan’s actual malice standard has come to apply in 

our new world, it’s hard not to ask whether it now even 

“cut[s] against the very values underlying the decision.” 

Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. 

Inquiry 197, 207 (1993) (reviewing A. Lewis, Make No Law: 

The Sullivan Case and the First Amendment (1991)). If ensuring an informed democratic debate is the goal, how well 

do we serve that interest with rules that no longer merely 

tolerate but encourage falsehoods in quantities no one could 

have envisioned almost 60 years ago?

Other developments raise still more questions. In 1964, 

the Court may have thought the actual malice standard 

would apply only to a small number of prominent governmental officials whose names were always in the news and 

whose actions involved the administration of public affairs. 

Here again, the Court may have thought that allowing 

some falsehoods about these persons and topics was an acceptable price to pay to ensure truthful statements vital to 

democratic self-government were not inadvertently suppressed. Perhaps the Court weighed the costs and benefits 

similarly when it extended the actual malice standard to 

the “pervasively famous” and “limited purpose public figures.”

But today’s world casts a new light on these judgments 

as well. Now, private citizens can become “public figures” 

on social media overnight. Individuals can be deemed “famous” because of their notoriety in certain channels of our 

now-highly segmented media even as they remain unknown in most. See, e.g., Hibdon v. Grabowski, 195 S. W. 
Cite as: 594 U. S. ____ (2021) 7 

GORSUCH, J., dissenting

3d 48, 59, 62 (Tenn. App. 2005) (holding that an individual 

was a limited-purpose public figure in part because he “entered into the jet ski business and voluntarily advertised on 

the news group rec.sport.jetski, an Internet site that is accessible worldwide”). Lower courts have even said that an 

individual can become a limited purpose public figure 

simply by defending himself from a defamatory statement. 

See Berisha v. Lawson, 973 F. 3d 1304, 1311 (CA11 2020). 

Other persons, such as victims of sexual assault seeking to 

confront their assailants, might choose to enter the public 

square only reluctantly and yet wind up treated as limited 

purpose public figures too. See McKee v. Cosby, 586 U. S. 

___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 1). In many ways, it seems we have arrived 

in a world that dissenters proposed but majorities rejected 

in the Sullivan line of cases—one in which, “voluntarily or 

not, we are all public [figures] to some degree.” Gertz, 418 

U. S., at 364 (Brennan, J., dissenting) (brackets and internal quotation marks omitted).

Again, it’s unclear how well these modern developments 

serve Sullivan’s original purposes. Not only has the doctrine evolved into a subsidy for published falsehoods on a 

scale no one could have foreseen, it has come to leave far 

more people without redress than anyone could have predicted. And the very categories and tests this Court invented and instructed lower courts to use in this area—

“pervasively famous,” “limited purpose public figure”—

seem increasingly malleable and even archaic when almost 

anyone can attract some degree of public notoriety in some 

media segment. Rules intended to ensure a robust debate 

over actions taken by high public officials carrying out the 

public’s business increasingly seem to leave even ordinary 

Americans without recourse for grievous defamation. At 

least as they are applied today, it’s far from obvious 

whether Sullivan’s rules do more to encourage people of 
8 BERISHA v. LAWSON

GORSUCH, J., dissenting

goodwill to engage in democratic self-governance or discourage them from risking even the slightest step toward public 

life. 

“In a country like ours, where the people . . . govern themselves through their elected representatives, adequate information about their government is of transcendent importance.” Dun & Bradstreet, 472 U. S., at 767 (White, J., 

concurring in judgment). Without doubt, Sullivan sought 

to promote that goal as the Court saw the world in 1964. 

Departures from the Constitution’s original public meaning 

are usually the product of good intentions. But less clear is 

how well Sullivan and all its various extensions serve its 

intended goals in today’s changed world. Many Members of 

this Court have raised questions about various aspects of 

Sullivan. See, e.g., McKee, 586 U. S., at ___ (opinion of 

THOMAS, J.); Coughlin v. Westinghouse Broadcasting & Cable, Inc., 476 U. S. 1187 (1986) (Burger, C. J., joined by 

Rehnquist, J., dissenting from denial of certiorari); Gertz, 

418 U. S., at 370 (White, J., dissenting); Rosenbloom v. 

Metromedia, Inc., 403 U. S. 29, 62 (1971) (Harlan, J., dissenting); id., at 78 (Marshall, J., dissenting); Rosenblatt v. 

Baer, 383 U. S. 75, 92–93 (1966) (Stewart, J., concurring); 

see also Kagan, 18 L. & Soc. Inquiry, at 205, 209; Lewis & 

Ottley, New York Times v. Sullivan at 50, 64 De Paul 

L. Rev. 1, 35–36 (2014) (collecting statements from Justice 

Scalia). JUSTICE THOMAS does so again today. In adding 

my voice to theirs, I do not profess any sure answers. I am 

not even certain of all the questions we should be asking. 

But given the momentous changes in the Nation’s media 

landscape since 1964, I cannot help but think the Court 

would profit from returning its attention, whether in this 

case or another, to a field so vital to the “safe deposit” of our 

liberties.