Berisha v. Lawson (cert. denied June 7, 2021)

Justice Thomas, dissenting from the denial of certiorari:
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.

Justice Gorsuch,  dissenting from the denial of certiorari:
Some reports suggest that our new media environment also facilitates the spread of disinformation. 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.” 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].”
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.” 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. . . .
The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. Under the actual malice regime as it has evolved, “ignorance is bliss.” 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 disseminate the most sensational information as efficiently as possible without any particular concern for truth. 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. . . . 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?