On Thursday at 10 a.m. ET, Dr. Christine Blasey Ford will appear before the Senate Judiciary Committee to detail her allegation of being sexually assaulted by Supreme Court nominee Brett Kavanaugh. No doubt all of the television news networks are prepared to cover the high-stakes proceedings (not to mention the other drama at the White House when President Donald Trump meets with Deputy Attorney General Rod Rosenstein). But is everyone ready for what might be coming directly from the Supreme Court the same day?
As it turns out, Kavanaugh’s would-be colleagues on the high court are expected to issue orders from its most recent conference held on Monday. At that conference, Chief Justice John Roberts and seven associate justices discussed pending petitions and voted on which cases deserve further review. Among the dozens of petitions are two defamation lawsuits against Bill Cosby for how his former lawyer asserted that sexual misconduct accusations against him were “fabricated.” Accordingly, just as Ford begins telling her own story in Congress, the Supreme Court may be announcing whether it will be shaping the contours of #MeToo speech for decades to come.
The timing is extraordinary. Not only because of the Kavanaugh hearing, but also because just a day ago, Cosby was sentenced to three to 10 years in jail for sexually assaulting Andrea Constand.
As Cosby’s criminal case goes on appeal, many of the pending defamation lawsuits against Cosby will kick into high gear. Some of those lawsuits have already resulted in opinions that have made their way up the appellate chain. And two are before the Supreme Court (which could also defer any grant or denials until after this week).
The case with perhaps the best chance of being reviewed by the Supreme Court is Kathrine Mae McKee v. William H. Cosby, Jr.
McKee, a former entertainer herself, alleges Cosby raped her in a Detroit hotel room in 1974. Four decades later, her story appeared in newspapers. Cosby’s lawyer then sent a threatening letter to the media warning of defamatory statements. In response, it was McKee who sued Cosby for defaming her. A judge dismissed the case, and the First Circuit Court of Appeals upheld the rejection on the grounds that McKee was a limited-purpose public figure who couldn’t demonstrate Cosby had actual malice (i.e., knowledge of falsity or reckless disregard of the truth), no matter the truth of his attorney’s statement.
The petition by McKee presents the question, “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 is certainly a relevant and interesting question given all that is happening with Kavanaugh. If the Supreme Court grants review, the high court will be examining defamation standards and potentially making it easier for sexual assault victims to sue their aggressors upon public denials. By tinkering with the definition of a “public figure,” the high court could also potentially impact speech beyond sexual misconduct. McKee is represented by Charles Harder, who brought Gawker to its knees in the Hulk Hogan sex tape case and is also currently representing Trump in the Stormy Daniels case.
Although the Supreme Court grants only a small portion of the petitions it receives, this one has attracted at least some interest by the justices. After Cosby waived the right to respond to McKee’s petition, the Supreme Court requested a response. Cosby urged the high court to pass by arguing that McKee had been properly designated a public figure and that she had used her celebrity to speak to the media. The petition has been designated as one to watch by the highly influential SCOTUSblog, which has a strong track record in identifying potential grants of certiorari.
The other case that the justices reviewed at conference is William H. Cosby, Jr. v. Janice Dickinson.
Here, Cosby himself wants the high court to tackle the defamation lawsuit brought by the former supermodel. Like McKee, Dickinson alleges she was defamed when Cosby’s lawyer put out a press statement presenting her allegation of sexual misconduct as a “fabricated” and “outrageous defamatory lie.” A California appeals court rejected Cosby’s argument that the statement at issue was not actionable as it constituted mere opinion based on fully disclosed facts.
The question presented, “Whether, contrary to the decision of the California Court of Appeal, an attorney’s statement denying wrongdoing on behalf of a client who has been publicly accused of serious misconduct enjoys constitutional protection, as the First and Third Circuit Courts of Appeals have found.”
If the McKee case aims at making it easier for sexual victims to sue for defamation, this one aims at providing more breathing room for denials. And again, it touches on more than just sexual misconduct. Cosby explicitly invites the high court to revisit its 1990 decision in Milkovich v. Lorain Journal Co., which rejected a “wholesale defamation exemption for anything that might be labeled ‘opinion.'”
What message will the Supreme Court be sending if it decides to review either of these cases? Or at least, how would an announcement of a review be interpreted should one come just as the Kavanaugh hearing gets underway? And will Kavanaugh himself get an opportunity to participate as a justice in deciding these disputes over #MeToo speech? Keep in mind that it takes four justices to grant a writ of certiorari.
