The U.S. Supreme Court has passed on an opportunity to examine speech in the #MeToo era. On Tuesday, the justices on the high court declined review of a case brought by Bill Cosby accuser Kathrine McKee, who alleged being defamed when Cosby’s attorney characterized her story of being raped four decades ago as a fabricated lie. While the high court won't tackle McKee's case, today's order is most notable because of a concurring statement from Justice Clarence Thomas who is calling for a re-examination of the jurisprudence that has made it more tough for public figures to carry defamation claims in court.
The denial of certiorari in Kathrine McKee v. William Cosby comes five months after the comedian was sentenced to three to 10 years in prison for sexually assaulting another woman Andrea Constand. Before finally weighing in on McKee's case, the justices deferred consideration nearly a dozen times over the course of several months perhaps out of sensitivity surrounding the Capitol Hill confirmation fight over Brett Kavanaugh, who himself was accused of sexual misconduct.
The question presented in McKee’s petition was whether an individual becomes a public figure by making an accusation of being victimized. In short, “me too.” In fact, when McKee brought this case to the Supreme Court, her petition nodded to Harvey Weinstein and how allegations against the movie mogul inspired numerous women to stand up on social media with the hashtags, #MeToo and #TimesUp. (Weinstein himself faces civil claims, including defamation from various women.)
In defamation law, thanks to the 1964 decision in New York Times Co. v. Sullivan, plaintiffs need to demonstrate actual malice on the part of public figure defendants in order to prevail on a defamation claim. Applied here, that would mean the statement put out by Cosby’s ex-attorney Marty Singer in reaction to press reports about her alleged rape was knowingly false or recklessly disregarded the truth.
In 2017, the First Circuit Court of Appeals ruled that McKee was a public figure and that she couldn’t demonstrate actual malice.
McKee is a former L.A. morning talk show host who alleges Cosby raped her in 1974 in a Detroit hotel room while she was on tour with Sammy Davis Jr., her boyfriend at the time. In a 2017 interview with The Hollywood Reporter, McKee explained why she didn't come forward any sooner. "Imagine a girl in the early 1970s trying to make it in Hollywood and have a career," she said. "He was in his heyday when it happened. My common sense told me nobody would believe me."
In response to McKee's petition, Cosby's lawyers argued that although she had been out of the limelight for years, she was nevertheless an actress who used her celebrity status to gain access to national media outlets in order to publicly accuse an international entertainer of additional misconduct. In their eyes, that easily met the definition of at least a limited-purpose public figure.
In attempting to get the Supreme Court interested, McKee was representing by Charles Harder, the same attorney who represented Hulk Hogan in the lawsuit that brought down Gawker and is also currently representing President Donald Trump against Stormy Daniels. Notably, Trump has pledged to loosen up libel laws to make it easier to sue the media. A tighter definition of who qualifies as a public figure may have accomplished this to some extent.
But the Supreme Court sees fit not to examine this case.
Although the justices didn't give reasoning for their rejection, Justice Thomas issued a pages-long concurring statement that presented his viewpoint.
"I agree with the Court’s decision not to take up that factbound question," stated the concurrence. "I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place. New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rule[s]’ by balancing the 'competing values at stake in defamation suits.' We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we."
Thomas would totally upend many of the libel protections that many in the media — and others —have enjoyed, but this won't be the moment, and it's unclear whether that position is shared by others on the high court.
The Supreme Court previously passed on opportunities to tackle a Cosby case — namely, his appeal of a lower court opinion allowing supermodel Janice Dickinson’s defamation claims to proceed. That petition aimed to create more breathing room for denials to sexual misconduct allegations by couching them as non-actionable opinion. In that case, Singer himself escaped the lawsuit because Dickinson couldn't establish the attorney's actual malice. Dickinson is still fighting Cosby, though. In fact, there are at least a half dozen other women with pending defamation claims against Cosby. Much of the civil litigation was stayed pending his criminal case, which is now subject to a separate appeal.
After the decision to deny review, Cosby put out a statement saying he was "grateful," re-proclaiming his innocence, and stating that today's decision " gives me renewed hope that the fair and impartial courts in this country will go on to deliver justice."
McKee said that Cosby is being held accountable for his crimes, that her lawsuit was part of the process, but that she was devastated by today's development.
"The Supreme Court’s decision today is a serious blow to the #MeToo movement," she added. "Make no mistake, this decision will silence victims of sexual misconduct in the future. if you speak out in public, you become a public figure, and your rapist can defame you and destroy your reputation and career with impunity. The takeaway lesson of this decision is to stay silent, keep quiet, and live in fear, for victims to just shut up!"