One of Bill Cosby’s accusers lost her bid to sue his team for defamation Tuesday after the Supreme Court declined to hear her case — but one justice said it may soon be time to examine the entire line of cases that allowed her to be smeared.
Katherine Mae McKee joined a number of women in 2014 accusing Cosby of sexual misconduct. Specifically, Ms. McKee accused the comedian of assaulting her decades earlier. Cosby’s lawyer responded in a press release by calling Ms. McKee a liar.
She tried to sue Cosby and his legal team for defamation of character, arguing that they tried to “damage her reputation for truthfulness and honesty, and further to embarrass, harass, humiliate, intimidate, and shame” her.
But a federal court dismissed her claim, saying she pushed herself into the public scandal and therefore was a “limited public figure,” and under Supreme Court precedent must prove the statement against her was made with knowledge of its falsity or with reckless disregard for the truth.
The Supreme Court on Tuesday declined to hear Ms. McKee’s appeal.
But Justice Clarence Thomas, who agreed with denying her appeal, said it’s time for the court to re-evaluate its five-decade-old precedent, set in the landmark New York Times v. Sullivan case, which sets a higher standard for public figures to sue for defamation.
“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote in a 14-page opinion. “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.'”
He said he favors a common law approach to defamation claims that doesn’t hold public figures to a higher standard of proof.
Under the precedent, public officials and figures have a higher burden to prove defamation, including showing that the defamer was fueled by “actual malice,” forcing public figures to prove a statement was made with knowledge it wasn’t true or with a total disregard to its accuracy.
That standard has made it almost impossible for public figures to win cases.
Those issues were heightened in Ms. McKee’s case, in which she was deemed a public figure because she came forward to claim victimization by Cosby.
Cosby was found guilty of sexual assault last year and was sentenced to three to 10 years in prison.
Justice Thomas, as a public figure during his nomination to the high court in 1991, faced accusations of sexual misconduct by his former colleague, Anita Hill. He was confirmed by the Senate 52-48.
President Trump has called for changes to libel laws to make it easier to sue for defamation.
No other court members signed onto Justice Thomas’s opinion, which Eugene Volokh, a law professor at the University of California, Los Angeles, said suggests he stands alone at this point in wanting to revisit libel law constraints. It would take at least five justices to overturn the precedent.
“I haven’t seen any indication in other cases that any of the other justices would share Justice Thomas’s views,” Mr. Volokh said.
David Anderson, a law professor at the University of Texas, said that so much court and media behavior have been predicated upon the high court’s 1964 ruling that it would be tough to return to earlier precedents.
“The worlds of journalism and politics have changed dramatically since New York Times v. Sullivan … and it’s hard to imagine them returning to pre-1964 mode,” Mr. Anderson said.
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