McKee v. Cosby, No.  17-1542, 586 U.S.     . Petition for certiorari denied February 19, 2019.

Katherine McKee has publicly alleged that comedian Bill Cosby sexually assaulted her decades ago.  McKee has also alleged that in response to her allegations, Cosby’s attorney drafted and leaked a letter disparaging her character.  Her defamation claim against Cosby was dismissed, however, because by virtue of her public allegation she became a “limited public figure” and, as a result, she became subject to a higher standard of proof than applies to ordinary citizens.  Following New York Times v. Sullivan,  376 U.S. 254 (1964), public figures cannot succeed in libel against news media unless publication was made with “actual malice,” defined as actual knowledge of the falsity of any published statement or reckless disregard for its truth or falsity.

While the insulation proffered to the media may have been judicially fashioned with the best of intentions — to promote a press free from needless fear of liability — the impossibility of meeting the “actual malice” standard, while a boon to the media, can be crippling to ordinary citizens who are, sometimes unwittingly, and sometimes not, catapulted to public figure status.  

There is no government or private Office of Reputation Restoration. Traditionally the courts, in administering the law of defamation, served as the next best thing.  

Yet the courts no longer provide redress, opines Justice Clarence Thomas, and they do not because of the judicially created “constitutionalization” of the law of defamation in New York Times v. Sullivan.  

Justice Thomas observes that the New York Times v. Sullivan Court concluded that the heightened standard of proof it announced was compelled by the First and Fourteenth Amendments, but the Court did not say how its conclusion was grounded in the conceptualization of the Free Speech and Equal Protection Clauses as they were originally envisioned.

Nothing in history or in the Founders’ expressions indicates that public figures ought to lose remedial rights in order to promote speech rights.  Distaste for the criminalization of criticism of public figures, as found in public disdain for the Sedition Act of 1789, does not support the inference that civil standards must be heightened. Further, Justice Thomas offers, nothing indicates that the admittedly judicially created federal rule of New York Times v. Sullivan was intended to supplant state law of defamation, yet that has been the result.  

While Justice Thomas has joined the Court in declining review in light of the factually intense McKee claim, he has invited review of what he characterizes as judicial policy making in a proper case.

McKee v. Cosby, 17-1452 Certiorari denied February 19, 2019

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