When many women came forward in 2014 to accuse Bill Cosby of sexual assault, his attorney threatened to bring defamation lawsuits against various media outlets. Cosby never did, but in denying the allegations of sexual assault, he opened up an avenue for these women to sue him for defamation. The topsy-turvy situation has resulted in a pending petition before the U.S. Supreme Court, where it is now Cosby looking to defend “long-standing principles” making it tougher for celebrities to sue.
Katherine McKee is the appellant.
She accuses Cosby of raping her in a Detroit hotel room in 1974. After the story was published in newspapers, Cosby’s then-attorney Marty Singer issued denials and sent threats, which resulted in her defamation lawsuit. The First Circuit Court of Appeals affirmed a dismissal of her case upon the conclusion that McKee was a limited-purpose public figure who couldn’t demonstrate actual malice (i.e., knowledge of falsity or reckless disregard of the truth).
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McKee, represented by Charles Harder (who represented Hulk Hogan against Gawker), wants the high court to review the case.
The issue she’s presenting:
“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.”
The Supreme Court doesn’t grant many reviews, but this one has garnered some attention from the justices there. After Cosby waived the right to respond, the high court requested one. Also, the influential SCOTUSblog has listed McKee v. Cosby as a “petition to watch,” in what may be another signal that the Supreme Court may truly weigh in on defamation standards.
On Monday, Cosby did indeed respond to the Supreme Court’s call for a response. His attorneys introduce the case by talking about how the “well-established rule” that public figures must demonstrate malice “balances the competing interests of the public, the press, and the individual, and serves to protect the freedom of speech and press that is the matrix, the indispensable condition, of nearly every other form of freedom.”
Cosby, represented by lawyers at Greenberg Gross, also attempts to reframe the question presented to the high court:
“Whether an actress who uses her celebrity status to gain access to national media outlets in order to publicly accuse an international entertainer — already in the midst of a public controversy concerning allegations against him — of additional misconduct is a limited-purpose public figure for purposes of defamation analysis.”
The brief (read in full here) attempts to present McKee as no ordinary #MeToo individual. Instead, Cosby points out that she once hosted a morning talk show in Los Angeles; that she appeared on television shows including Sanford and Son, Good Times and Saturday Night Live; starred in the feature film Quadroon; and also toured with Sammy Davis Jr.
The point is that she enjoyed regular access to the media and used her celebrity to interject herself in the Cosby scandal.
“It makes no difference that Ms. McKee now claims she did not intend to become a public person,” states the brief. “That is not the test. Instead, ‘[w]hen an individual undertakes a course of conduct that invites attention, even though such attention is neither sought nor desired, he may be deemed a public figure.’… The First Circuit, consistent with this Court’s decisions and those of other courts of appeals, properly determined that Ms. McKee is a limited-purpose public figure. The petition should therefore be denied.”
McKee and Harder want the Supreme Court to review who becomes a public figure. If reviewed, that has enormous consequences for media outlets — and, as this case shows, others — who enjoy the breathing room afforded by malice standards in defamation cases.
Cosb,y while seeking his own review in a different defamation case (on the issue of whether the opinions of lawyers are actionable), seeks to foreclose a review of McKee’s petition with a different formulation.
“Several of the cases cited by Ms. McKee dealt with the limited issue of whether an accused person can become a public figure simply by virtue of the accusations against that individual or any response he or she chooses to make,” states the brief. “[T]hose cases are distinguishable because the accused person in this case is Mr. Cosby — not Ms. McKee. Further, however, those cases involved defamation plaintiffs who were not famous, and not enjoyed access to the media prior to the accusations made against them, and did not seek out any opportunities to speak to the media. … These cases are not germane to the question of whether Ms. McKee — who took advantage of the media opportunities readily available to her as a celebrity — is a public figure.”
