Some Mississippi Supreme Court justices on Wednesday raised questions about a lower court judge’s dismissal of a defamation lawsuit that former Gov. Phil Bryant filed against the state’s largest newsroom, Mississippi Today. 

Two justices asked if a jury – not a judge – should ultimately decide whether the nonprofit news outlet defamed Bryant in describing Mississippi’s welfare scandal that has led to multiple guilty pleas and rocked the state’s politics. Bryant did not attend Wednesday’s hearing and has not been charged with any crime.

“Why wouldn’t what you’re saying today to us be appropriately brought before a jury?” Chief Justice Michael Randolph asked an attorney for Mississippi Today. “So they would agree with you, hopefully, on your behalf. Why isn’t this jury material?”

Lee Crain, a Gibson Dunn attorney representing Mississippi Today, disagreed with Randolph. He said a jury-like standard is not necessarily needed in a defamation case because a judge could dismiss the suit if the judge believes Bryant’s complaint contained legal deficiencies and didn’t meet the burden of proof showing actual malice existed.  

Justice Josiah Coleman also pressed Crain on whether the case belonged in front of a jury, while Justice Kenny Griffis said he was concerned about whether the procedural mechanism that Madison County Circuit Court Judge Bradley Mills used for dismissing the case was correct. 

Justices on Wednesday did not question the accuracy of Mississippi Today’s reporting on the welfare scandal but expressed reservations about whether the case was properly dismissed by the lower court.

If a majority of justices determine the lower-court judge improperly tossed out the lawsuit, they could decide to send the case back to Madison County Circuit Court for more legal arguments. 

If it goes back to the trial court, attorneys for both Bryant and the newsroom could then file additional motions and gather more evidence, and the case could ultimately head to a jury for consideration. 

Mississippi Today reporter Anna Wolfe spent years researching and writing about a sprawling welfare scandal — something that investigators have called the largest public embezzlement scheme in the state’s recent history. Auditors have questioned roughly $100 million in welfare spending under the leadership of John Davis, who was chosen by Bryant to lead the Mississippi Department of Human Services.

Wolfe did not attend the Supreme Court hearing Wednesday. Her series of stories, The Backchannel, examined how federal welfare dollars meant to help the state’s poorest residents were misspent or misdirected to projects involving powerful figures, including former NFL star Brett Favre and associates of then-Gov. Bryant, a Republican who held the state’s highest office from January 2012 to January 2020.

Seven people have pleaded guilty to federal and state crimes in connection with the scandal, and another is on trial in federal court for 13 charges related to the scandal. 

Shortly after Wolfe won a Pulitzer Prize for her coverage, Bryant filed a lawsuit in Madison County Circuit Court against the newsroom and its CEO, Mary Margaret White. 

Bryant’s lawsuit didn’t challenge the accuracy of Wolfe’s reporting because he didn’t file the lawsuit within the specific statutory timeframe needed to file such a claim.

Instead, Bryant’s lawyers have argued that the news outlet, its CEO and other employees made defamatory comments about the former governor when discussing the series in public settings, including during a radio interview and during a speech at a journalism conference. 

Bryant has emphasized in his lawsuit that he has not been charged by state or federal authorities with any crime related to the welfare scandal, and he argued that Mississippi Today’s public comments went beyond protected journalistic reporting. 

Mills dismissed Bryant’s lawsuit in April, and the former governor is now arguing before the state Supreme Court that the lower-court judge should not have done so. 

At the core of the legal disagreements is whether the news outlet committed “actual malice” with its series. 

Actual malice is a legal standard in defamation law requiring that someone said or published something, particularly against a public official, that they clearly knew was false, a high bar to prove against elected officials such as Bryant. 

“Make no mistake, the statements that were issued here are false, defamatory, and they were made with actual malice,” Billy Quin, Bryant’s attorney, argued Wednesday. 

But Mississippi Today’s attorney, Crain, argued that it’s highly unlikely for the news outlet to have committed actual malice because the newsroom believed what it said was true and was supported by interviews, public records and research.

To support his claims, Crain argued that Sports Illustrated published a similar article about Bryant’s role in the scandal, and the former governor also sued the magazine over for defamation. 

U.S. District Judge Kristi Johnson, who was nominated to the bench by President Donald Trump, dismissed the former governor’s lawsuit. Bryant also appealed that ruling to the U.S. 5th Circuit Court of Appeals, where it awaits consideration.  

Crain argued that the Sports Illustrated and Mississippi Today cases were nearly identical. However, Randolph said legal standards for Johnson’s decision in federal court were different than the state law standard. 

After oral arguments ended, Crain said in a statement that Mississippi Today’s reporting on the welfare scandal is “journalism at its best” and the news outlet “shed light on wrongdoing that diverted millions of dollars away from Mississippi’s most vulnerable.” 

“The trial court already dismissed this flawed case, and today we asked the Mississippi Supreme Court to affirm that decision,” Crain said in the statement. “The freedom of the press is sacred in Mississippi, and Mississippi Today remains committed to serving as the state’s flagship source for independent news.” 

Only seven justices are currently on the usual nine-member court because the U.S. Senate recently confirmed two of the former members as federal judges in northern Mississippi.

Justices Jenifer Branning and David Ishee did not ask questions during oral arguments. Justice Leslie King was absent Wednesday, but he can still participate in the court’s decision in the case. 

It’s unclear when the justices will issue a ruling.