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BYD Company Ltd. v. Vice Media LLC

Paid petition · United States Court of Appeals for the Second Circuit, No. 21-1097 · judgment March 1, 2022


Certiorari denied · October 3, 2022
Pre-decision estimate: 18% cert probability (95% interval 11%–29%)

Before the decision, about 4.5× the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a Second Circuit decision below, and a petition citing three to ten dissents, and down for a business respondent.

Question presented

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), St. Amant v. Thompson, 390 U.S. 727 (1968), and Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), balanced the reputational interests of public figures in defamation cases with the First Amendment interests of defendants, by requiring that public figure plaintiffs meet the significant burden of proving “actual malice” by clear and convincing evidence at trial, but permitting plaintiffs to plead such claims and obtain discovery to establish defendants’ mental state and meet the actual malice standard. The question presented is whether Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), sub silentio overturned the balance struck in Sullivan and its progeny, and created a new, more robust privilege, permitting even intentional or reckless defamation of public figures so long as plaintiffs do not have the facts regarding the defendant’s mental state at the time of suit and would require discovery to prove that the defendant recklessly disregarded the truth.

Counsel of record

For petitioner
Charles John Harder
HARDER, LLP

For respondent
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Case

Subject area
First Amendment (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Proceedings

  1. Oct 03 2022
    Petition DENIED.
  2. Jul 20 2022
    DISTRIBUTED for Conference of 9/28/2022.
  3. May 31 2022
    Petition for a writ of certiorari filed. (Response due July 5, 2022)