Caseflicks

Supreme Court of the United States • 2019

McKee v. Cosby

139 S. Ct. 675 | 203 L. Ed. 2d 247

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Takeaway

In short, this case left McKee’s loss intact, but Justice Thomas called for reconsideration of the constitutional actual-malice rule that made her defamation claim so difficult to prove.

Background

In December 2014, Kathrine McKee publicly alleged that Bill Cosby had forcibly raped her about 40 years earlier. McKee alleged that Cosby’s attorney responded for Cosby by writing and leaking a letter that falsely portrayed her personal history in order to undermine her honesty and credibility. Excerpts were disseminated online and republished by news outlets.

McKee brought a state-law defamation action in federal court. The First Circuit held that, by speaking to a reporter about her allegation, McKee had thrust herself into the public controversy over sexual-assault allegations involving Cosby. It therefore classified her as a limited-purpose public figure. Under New York Times Co. v. Sullivan and later cases, that classification required McKee to prove actual malice—knowledge of falsity or reckless disregard for truth—which she could not do. The Supreme Court denied certiorari.

Issues

Issue #1

Whether the Supreme Court should review the First Circuit’s fact-specific determination that McKee was a limited-purpose public figure.

Holding

No. The Court denied certiorari and left the First Circuit’s judgment in place.

Reasoning

The Court did not issue a merits opinion explaining its denial of review. Thus, the denial itself did not decide whether McKee was correctly classified as a limited-purpose public figure, nor did it alter the governing actual-malice doctrine.

Justice Thomas agreed that McKee’s challenge to her public-figure classification presented a factbound question not warranting Supreme Court review. His separate opinion, however, used the case to urge reconsideration of the constitutional premises underlying the actual-malice rule.

Concurrences

Justice Thomas

Reasoning

Justice Thomas concurred in the denial of certiorari because the dispute over McKee’s limited-purpose-public-figure status was too dependent on the particular facts of her public accusation and the surrounding controversy. He did not view this case as a suitable vehicle for reviewing that classification.

He nevertheless argued that New York Times Co. v. Sullivan and the cases extending it were policy-based decisions that were insufficiently tied to the original meaning of the First and Fourteenth Amendments. In his view, the Court adopted the actual-malice rule by balancing free-speech interests against reputational interests and then constitutionalized that balance as a federal rule.

Thomas emphasized that, at common law when the First and Fourteenth Amendments were ratified, a libel plaintiff generally had to show a false written publication exposing the plaintiff to hatred, contempt, or ridicule. Public officials and other public figures were not required to prove actual malice as a condition of liability; historically, defamatory attacks on public officials could be treated as especially serious.

The common law did recognize a privilege for fair comment on public matters and the public conduct of public officials. But Thomas stressed that this privilege was limited: it protected criticism relevant to public conduct and officeholding, not false and defamatory assertions about private character. The historical privilege therefore did not resemble the modern rule that broadly requires public figures to establish knowing or reckless falsity.

Thomas also maintained that early American practice does not show that constitutional speech and press protections displaced ordinary state libel law. States continued to permit civil libel suits by public officials, and they continued to criminalize libel, long after the founding and the adoption of the Fourteenth Amendment.

In Thomas’s account, opposition to the federal Sedition Act of 1798 does not establish an actual-malice requirement for civil defamation actions. Although critics of that Act objected to federal punishment of criticism of government, James Madison appeared to assume that officials could still seek remedies for injuries to reputation under ordinary state law.

Thomas concluded that the Court should, in an appropriate future case, reexamine whether the Constitution actually requires the New York Times actual-malice standard or otherwise displaces broad areas of state defamation law. He argued that states are capable of balancing robust public debate against the individual interest in protecting reputation.