The U.S. Supreme Court on Tuesday declined review of a case brought by Bill Cosby accuser Kathrine McKee (McKee v. Cosby), who alleged being defamed when Cosby’s attorney characterized her story of being raped four decades ago as a fabricated lie.
In writing the concurring opinion for the court, Justice Clarence Thomas states, “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”
The denial comes five months after the comedian was sentenced to three-to-10 years in prison for aggravated indecent assault.
Before finally weighing in on McKee’s case, the justices deferred consideration nearly a dozen times over the course of several months, a move the Hollywood Reporter speculated could have been the result of sensitivity surrounding the Capitol Hill confirmation fight over Brett Kavanaugh, who himself was accused of sexual misconduct.
McKee is a former L.A. morning talk show host, who alleges Cosby raped her in 1974 in a Detroit hotel room while she was on tour with Sammy Davis Jr., her boyfriend at the time.
Cosby has consistently denied all the allegations against him.
The question presented in McKee’s petition was “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.”
Cosby’s attorneys presented the question a little differently: “Whether an actress who uses her celebrity status to gain access to national media outlets in order to publicly accuse an international entertainer — already in the midst of a public controversy concerning allegations against him — of additional misconduct is a limited-purpose public figure for purposes of defamation analysis.”
In defamation law, plaintiffs must demonstrate actual malice on the part of public figure defendants in order to prevail in a defamation claim. The precedent was established under the 1964 New York Times Co. v. Sullivandecision and has been extended via several similar cases brought before the court during the intervening 55 years. Per Justice Thomas, “Like many plaintiffs subject to this ‘almost impossible’ standard, McKee was unable to make that showing.”
Applied here, that would mean the statement by Cosby’s ex-attorney Marty Singer, in response to press reports of the alleged rape of McKee by Cosby, was knowingly false or had recklessly disregarded the truth, according to the Hollywood Reporter.
“I agree with the Court’s decision not to take up that factbound question. I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place,” writes Thomas. “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own ‘federal rule[s]’ by balancing the ‘competing values at stake in defamation suits.’”
In 2017, the First Circuit Court of Appeals ruled that McKee was a public figure and that she couldn’t demonstrate actual malice.
“I am grateful to the United States Supreme Court and to the federal courts in Massachusetts for upholding the law in this case. I thank each of the Justices for their ruling, which gives me renewed hope that the fair and impartial courts in this country will go on to deliver justice,” Cosby said in a statement released through his publicist on Tuesday.
“This is the very reason, why I, [Bill Cosby] have no remorse because I am innocent and will continue to channel the strength of the great political prisoners. Finally the truth is being allowed to be heard and read by the public,” Cosby said.
