On Tuesday, February 19, 2019, the United States Supreme Court denied certiorari in Katherine Mae McKee v. William H. Cosby, Jr., 586 U.S. ___ (2019), a lawsuit concerning Katherine McKee’s claim against Bill Cosby for defamation where Cosby’s lawyers released a letter allegedly damaging McKee’s reputation for truthfulness and honesty. The First Circuit found McKee became a limited-purpose public figure when she made sexual assault allegations against Bill Cosby and, as such, would need to prove that the statements in the letter were both false and made with actual malice. United States Supreme Court Justice Clarence Thomas, writing a concurring opinion in the Supreme Court’s denial of certiorari, called for a reconsideration of the doctrinal basis for First Amendment cases concerning defamation and libel.
Justice Thomas’s concurring opinion dives deep into New York Times v. Sullivan, 376 U.S. 254 (1964), in an attempt to “reconsider the precedents that require courts to ask [the factbound question of whether McKee is a limited-purpose public figure] in the first place.” Justice Thomas continues on to state that New York Times and the later cases extending New York Times were “policy-driven decisions masquerading as constitutional law.” Instead of fashioning a federal rule, Justice Thomas urges for an application of the First Amendment as understood by the ratifiers.
Further, Justice Thomas examines the common law of libel “at the time the First and Fourteenth Amendments were ratified,” noting that common law “did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages.” Justice Thomas goes on to note that there is “little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.”
Supreme Court Justice Thomas Calls for Expanding Defamation Liability, Constitutional Law Prof Blog (February 19, 2019)
Katherine Mae McKee v. William H. Cosby, Jr., 586 U.S. ___ (2019)