The U.S. Supreme Court is being invited to review a defamation case against Bill Cosby. And this one is worth watching for many reasons.
The appellant is Katherine McKee, who says Cosby raped her in a Detroit hotel room in 1974. Her allegations appeared in a 2014 story in the New York Daily News. After the story was published, Cosby’s then-attorney Marty Singer sent a letter to the paper and asserted numerous false and defamatory statements. In response, it was McKee who sued Cosby for defaming her.
The case was dismissed, and the judge’s rejection was upheld by the First Circuit Court of Appeals.
While the lawsuit was initially dismissed because a district court ruled the statements were non-actionable opinion, the appeals court decided to affirm on alternative grounds by examining whether McKee was a public figure. If so, under established jurisprudence, she would need to demonstrate Cosby had actual malice (i.e., knowledge of falsity or reckless disregard of the truth) in order to prevail in her defamation claim.
The court held she became a limited-purpose public figure when she had gone public with her accusations. “McKee took concerted steps meant to influence the public’s perception of whether Cosby was, in fact, a sexual predator,” wrote First Circuit Court Judge Sandra Lynch for the panel.
The cert petition to the Supreme Court challenges this. The issue presented:
“Whether a victim of sexual misconduct who merely publicly states that she was victimized (i.e., ‘#metoo‘) has thrust herself to the forefront of a public debate in an attempt to influence the outcome, thereby becoming a limited purpose public figure who loses her right to recover for defamation absent a showing of actual malice by clear and convincing evidence.”
This petition becomes even more interesting because McKee is being represented by Charles Harder, the attorney who became famous for slaying Gawker in the Hulk Hogan sex tape lawsuit. Harder also represents President Donald Trump in various matters including in the Stormy Daniels case. Of course, it’s Trump who promised on the campaign trail to do something about libel standards that make it tough to sue the media. As the leader of the executive branch, however, Trump is constrained on what he can do as most libel laws are dictated by state statutes and limited by the First Amendment of the U.S. Constitution. If there is going to be a big shake-up in libel law, it probably will have to come from the U.S. Supreme Court.
Well, now Harder has entered the picture and is representing a Cosby accuser in an appeal over who is a public figure. The appellant represents a sympathetic figure, and the petition introduces the case with a reference to Harvey Weinstein (another former client of Harder, who ironically once worked at Singer’s firm). But if the standard gets loosened on who qualifies as a public figure, it will be unwelcome news for many in the media industry. Of course, it should be noted that the Supreme Court only grants a very small fraction of the cert petitions it receives.
Harder and co-counsel F. William Salo are arguing that the Supreme Court “at this historical moment, should grant McKee a writ of certiorari to clarify what criteria should be used to determine limited purpose public figure status in a case of a public accusation of sexual misconduct. And moreover, this Court should confirm that the act of publicly identifying oneself as a crime victim, and merely that act alone, is not equivalent to injecting oneself into the vortex of a public debate. A person who decries sexual misconduct should not be stripped of the protections of private figure status, such that she has virtually no recourse to protect her reputation through a defamation lawsuit. McKee should not be victimized twice over.”
The full petition is below.