Katherine McKee v. William H. Cosby, No. 17-1542 (S. Ct.). Petition for Certiorari referred to conference scheduled for October 26, 2018.

The law of defamation sometimes prefers to encourage lively public debate over the right of one participating in such debate to recover in defamation. Thus the person who steps into the public square may find himself or herself considered to be a “limited purpose public figure” who must show actual malice to recover for any statement alleged to be defamatory.  

This is all very reasonable if one is of the mind that inviting controversy, perhaps simply by joining in, means accepting the accompanying consequences, which may occasion as many brickbats as it does bouquets.

But wait!  Is that really so reasonable?  The limelight may find a plaintiff rather than it being sought.  An individual may wish only to speak in rebuttal to a statement.

Perhaps matters are not at all as simple as the “limited purpose public figure” classification suggests.  And with the internet being a “forever” forum, being insusceptible of being scraped clean no matter one’s diligence, having it uphill in cleaning up reputational injuries may seem doubly burdensome if it is more difficult than might be expected to demonstrate actionable defamation.

Tomorrow the Supreme Court will consider the petition for certiorari of Katherine McKee, who joined in public discussion of the sexual exploits of comedian and actor Bill Cosby.

Following statements about Cosby, Cosby’s counsel wrote to a publisher questioning McKee’s veracity and chastity.  Although the correspondence was labelled ‘confidential,’ McKee avers that Cosby counsel leaked its own letter to the media.  

Neither the federal trial court in Massachusetts nor the United States Court of Appeals for the First Circuit found any statements made by Cosby’s counsel to be actionable. Simply by acknowledging her status as a Cosby victim, McKee avers, she became a “limited purpose public figure” whose ability to counter statements about her was diminished by the enhanced standard of proof required of such persons.  McKee argues that the federal courts of appeals are in conflict concerning the “limited purpose public figure” rationale and urges the Supreme Court to review its boundaries.

Cosby counters that McKee already was a public figure at the time she entered the arena to add to allegations against Cosby, as she had been a figure in the entertainment industry for decades, and used her status as such to gain access to the media.  McKee’s longstanding involvement in entertainment only underscores the analysis of her status by the lower courts. She was involved in much more than identifying herself as a victim, in Cosby’s view. Moreover, the courts were correct in concluding that by accompanying allegedly defamatory statements with non-defamatory facts, defendant insulated himself from liability.  Finally, no conflict exists among the federal circuit courts of appeals that demands the Supreme Court’s attention at this time.

Whether McKee succeeds in obtaining review will depend on the law, of course, but the grant or denial of certiorari may also be colored by the intensity of public controversy concerning sexual misconduct.  While the Court need not concern itself with the vicissitudes of public opinion, neither does it need to turn a blind eye to the likelihood that sexual assault victims will complain of further victimization because of speaking out, claiming that the forfeiture of rights to seek redress in defamation is too high a price to pay for speaking out on a  matter of public interest.  

It is worth noting that recently Cosby was denied Supreme Court review where a California court concluded that counsel’s duty of zealous advocacy does not include defaming an accuser.

Tomorrow will tell.

McKee Documents Filed with Supreme Court

20180501102009877_Petition for Writ of Certiorari

20180501102033549_Appendix to Petition for Writ of Certiorari

20180730132824698_2018.07.30 Brief in Opposition

20180806165750352_Reply Brief for Petitioner

Dickinson Document and Order Denying Certiorari

20180712161848083_18-__PetitionForAWritOfCertiorari Dickinson

2018 10 01 Order Denying Certioriari Dickinson

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