Could the board that awards Pulitzer Prizes to media outlets end up losing a defamation suit over fake news? Could Donald Trump use the same tools used against him to wreak revenge for Protection Racket Media coverage of the Russis-collusion hoax that all but derailed the first half of his first presidential term?

Those outcomes look more possible after a ruling on appeal from the Pulitzer board. Trump sued the board for a statement they issued after refusing to rescind their 2018 awards to the Washington Post and New York Times for reporting on Trump's supposed Russia connections as fact. Special counsel Robert Mueller later found no basis for the allegations and discredited the Steele dossier on which those claims were made. Had the board just issued a statement declining to revive the matter, they might have avoided any legal liability.

However, the board instead publicly disputed Trump over the legitimacy of the reporting, which prompted a Florida lawsuit for defamation against the board and all of its members individually. The statement read in the part that prompted the lawsuit:

These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.

Emphasis mine. That is false on its face, regardless of what the Pulitzer board claims its "independent reviews" concluded. Almost all of the reporting got contradicted by investigators in the end, especially that which relied on the Steele dossier. One has to wonder why the board even bothered with a statement; it still has not rescinded the Pulitzer awarded to Walter Duranty for his genocide-denying propaganda on behalf of Joseph Stalin about Ukraine.

Since they bothered, however, their statement left them open to a defamation claim. This is an ironic parallel to Trump's own experience as the respondent in a series of defamation claims by E. Jean Carroll over his denials about her claims to have been sexually assaulted by Trump. As she spoke publicly about it, Trump called her a liar, prompting the first suit, which he lost. When she spoke publicly about it after that, Trump insisted she was still lying, prompting a second lawsuit, which Trump also lost. Trump apparently learned a lesson from that sequence, although perhaps not the most obvious lesson, which is that sometimes it's better just to keep your mouth shut.

The Pulitzer board didn't learn that either, but they did try to claim that Florida had no jurisdiction for the defamation action. A state district judge ruled against them, so the board appealed. On Wednesday, the three-judge panel in the state's Fourth Circuit unanimously rejected the appeal on technical grounds, but Judge Artau decided to expound at length on the matter. 

And it is now clear that the Pulitzer board could run the risk of exposing the industry it supposedly scrutinizes to a serious legal setback in the defamation realm:

Pulitzer Board loses a motion to dismiss in Florida on narrow jurisdictional grounds, and Judge Ed Artau adds a long concurrence attacking New York Times vs. Sullivan and "FAKE NEWS" pic.twitter.com/YufHNDeWod

— Ben Smith (@semaforben) February 12, 2025

Reading Judge Artau's concurrence, which should be read in full and bookmarked, it's clear that the judge has very little sympathy for the Putlizer board as well as its technical argument on the appeal. Artau went well beyond the necessary parameters of the challenge to send a clear warning as to what will happen when the case actually comes to trial. Much of this is still pretty technical, but the danger to which the Pulitzer board could expose the media industry becomes clear when Artau argues that the Supreme Court should eventually take either this case or one like it to repeal its Sullivan standard:

As Justice Thomas has noted, the actual malice standard’s continued use cannot be constitutionally justified, especially when the Supreme Court “has not ‘even inquired whether the First or Fourteenth Amendment, as originally understood, encompasses an actual–malice standard.’” Blankenship, 144 S. Ct. at 5-6 (Thomas, J., concurring in denial of certiorari) (quoting Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 142 S. Ct. 2453, 2455 (2022) (Thomas, J., dissenting from denial of certiorari)).

In fact, “[t]he common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages.” Id. at 5 (quoting McKee, 139 S. Ct. at 676 (Thomas, J., concurring in denial of certiorari)). For this reason, Justice Thomas explained that the actual malice standard “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” Id. (emphasis added) (quoting Tah, 991 F. 3d at 254 (Silberman, J., dissenting)).

Nevertheless, unless and until the Supreme Court overturns New York Times Co. v. Sullivan, the actual malice standard, which the President sufficiently pled here, must apply. See Gonzalez v. State, 982 So. 2d 77, 78 (Fla. 2d DCA 2008) (noting that inferior courts have “no authority to overrule the precedent from the United States Supreme Court”). However, inferior courts can suggest, as I do here, that the Supreme Court revisit whether New York Times Co. v. Sullivan should continue to be the law of the land despite historical evidence showing it does not comport with the original understanding of the First Amendment.

Artau makes it clear in his conclusion that this case will likely produce a test that will allow -- indeed, compel -- the Supreme Court to finally dump Sullivan:

The President has met his burden of establishing jurisdiction to proceed with his asserted claims that the non-resident defendants acted with actual malice or reckless disregard for the truth by knowingly conspiring with the Florida resident defendant to defame the President by publishing the statement with “[t]he ultimate purpose of . . . resurrect[ing] the debunked Russia Collusion Hoax[,]” when, at the time the statement was issued, “it was abundantly clear to anyone interested in the truth that the Russia Collusion Hoax was utter fiction” and “had been contrived and concocted by malicious partisans[.]”

Therefore, the trial court correctly denied the non-resident defendants’ motion to dismiss the President’s claims over the asserted publication of defamatory “FAKE NEWS.”4

Thus, the Pulitzer board could hoist the entire Protection Racket Media on its own petard by defending its arguably defamatory public response to Trump. It seems clear that Trump has the standing to bring the case, and Florida's statutes give it the jurisdiction to hear it. Just how does the Pulitzer board want to be remembered for its contribution to news media? It's too late for its legacy to be that of promoting excellence in actual reporting. It could still have a reputation for fair play, although the Duranty exercise argues against that too. 

And in defense of ... what? Crap reporting that has already been debunked? Bear in mind that this has nothing to do with defending reporting as a process, but over rewarding lousy reporting and then lying about it afterward. One has to suspect that these examples that Pulitzer chose to highlight with its awards likely parallel the Duranty standard; they rewarded the process of passing along propaganda as news to benefit one's ideological allies. At least the Pulitzer board is consistent in that sense. 

Right now, the Pulitzers are dancing close to the edge of revamping defamation claims in the US that will greatly expand the liability of their constituent news orgs. That would certainly carry a certain level of irony, but given their 80-year track record of heralding propagandists, perhaps it's their ultimately predictable -- and well-deserved -- destination.