Bryant v. Rosenberg

Opinion

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 25-60196 FILED March 4, 2026

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Lyle W. Cayce Phil Bryant; Deborah Bryant, Clerk

Plaintiffs—Appellants,

versus

Michael Rosenberg; Arena Group Holdings, Incorporated, “Arena”, formerly known as TheMaven, Incorporated,

Defendants—Appellees.

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Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:24-CV-260

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Before Richman, Higginson, and Oldham, Circuit Judges. Per Curiam: * Plaintiffs Phil and Deborah Bryant brought a defamation suit against author Michael Rosenberg and publisher Arena Group Holdings. The district court dismissed the Bryants’ claims. This court has reviewed the parties’

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

No. 25-60196

briefs, the record, the district court’s opinion, and the applicable law. We find no reversible error.

AFFIRMED.

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Andrew S. Oldham, Circuit Judge, concurring:

As many jurists have explained, the actual-malice standard has “no relation to the text, history, or structure of the Constitution.” Tah v. Glob. Witness Publ’g, Inc., 991 F.3d 231, 251 (D.C. Cir. 2021) (Silberman, J., dissenting in part). 1 For most of our Nation’s history, libel laws were alive and well in state legislatures and courts. Dershowitz v. Cable News Network, Inc., 153 F.4th 1189, 1198 (11th Cir. 2025) (Lagoa, J., concurring). But in 1964, the Supreme Court “overturn[ed] 200 years of libel law,” constitutionalized an actual-malice standard, and recognized that lies can be constitutionally protected. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985) (White, J., concurring in the judgment); see N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

Sullivan created bad consequences. As then-Professor Kagan put it, Sullivan has an “obvious dark side”: It “allow[s] grievous reputational injury to occur without monetary compensation or any other effective remedy.” Elena Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 205 (1993) (reviewing Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1991)). Or, as Judge Silberman described, Sullivan gives the press freedom to “cast false aspersions on public figures with near impunity.” Tah, 991 F.3d at 254 (Silberman, J., dissenting).

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1 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 380 (1974) (White, J., dissenting);

McKee v. Cosby, 586 U.S. 1172, 1173 (2019) (Thomas, J., concurring in the denial of certiorari); Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from the denial of certiorari); id. at 2425–26 (Gorsuch, J., dissenting from the denial of certiorari); Dershowitz v. Cable News Network, Inc., 153 F.4th 1189, 1197 (11th Cir. 2025) (Lagoa, J., concurring).

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And in the years since Sullivan, the constitutional right to lie has expanded. It now includes the right to print and shout outrageous lies at a Marine’s funeral. See Snyder v. Phelps, 562 U.S. 443 (2011). And it empowers two-bit charlatans to claim our Nation’s highest military honor. See United States v. Alvarez, 567 U.S. 709 (2012).

And even if the First Amendment did immunize atrocious falsehoods, Sullivan’s heightened standard for libeling public figures is particularly difficult to understand. Before Sullivan, the common law considered “libels against public figures to be, if anything, more serious and injurious than ordinary libels.” McKee v. Cosby, 586 U.S. 1172, 1177 (2019) (Thomas, J., concurring in the denial of certiorari); see also Dershowitz, 153 F.4th at 1198 (Lagoa, J., concurring) (making a similar point). Why should public figures—the very people most prone to attract libels—be uniquely disabled to combat them? And in the social media age, when almost anyone can become a public figure almost instantly, why should the First Amendment protect some Americans less than it protects others?

At the end of the day, though, our inferior court is bound by Sullivan.

So I concur.