How Clarence Thomas Used a Civil Case Against Bill Cosby to Call for a Re-Examination of Libel Laws

Bill Cosby is escorted by police in handcuffs as he exits the Montgomery County Correctional Facility in Norristown, Pa., on Tuesday, Sept. 26, 208. (Jose F. Moreno/Philadelphia Inquirer/TNS)

February 20, 2019

By Laura McCrystal

PHILADELPHIA — The U.S. Supreme Court announced Tuesday that it would not consider a defamation case involving Bill Cosby. But the announcement came with a twist: Justice Clarence Thomas used the appeal case to call for a reconsideration of libel laws.

Kathrine McKee, one of the dozens of women who have accused Cosby of sexual assault or sexual misconduct, had asked the court to review her case, in which she said Cosby’s lawyer damaged her reputation in a letter after she publicly accused Cosby of raping her. Lower courts dismissed her complaint case because they found that by disclosing her allegations against Cosby to the media, she had become a public figure. The “public figure” distinction makes it harder to sue for defamation.

Thomas, in a 14-page opinion issued Tuesday, agreed with the Supreme Court’s decision not to take McKee’s case. But he used it as an opportunity to call for a review of libel standards for public figures.

In a landmark 1964 case, New York Times Co. v. Sullivan, the Supreme Court set a higher standard for libel cases involving people who by their occupation, accomplishments, or celebrity are in the public spotlight. It ruled that such public figures must prove that a false and defamatory statement about them was published with “actual malice,” or a disregard for whether it is false, for their claims to prevail in court.

McKee was unable to prove actual malice, so her case could not proceed, Thomas wrote. But Thomas said the court should question this precedent, and suggested the justices should, with a different case, reconsider New York Times v. Sullivan.

“We should carefully examine the original meaning of the First and Fourteenth Amendments,” Thomas wrote. “If the Constitution does not require public figures to satisfy an actual-malice standard in state law defamation suits, then neither should we.”

President Donald Trump, who often complains about the media, has called for changing libel laws. On Sunday, he complained in a tweet about “Saturday Night Live” and said it was “very unfair and should be looked into” that television shows can get away with mocking Republicans. In September, he suggested directly in a tweet that libel laws should be changed.

The 1964 case involved a paid advertisement printed in the Times that supported the civil rights movement and alleged that the movement faced terror from police in Alabama. L.B. Sullivan, commissioner of public affairs in Montgomery, Ala., sued the newspaper, and alleged that the statements were made against him because he supervised the police department. The Supreme Court ultimately ruled that by virtue of his position, he was a public figure and the statements were not public officials cannot collect damages for defamation unless they can prove that false statements made about them were published with “actual malice” or a reckless disregard for the truth.

“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Thomas wrote. “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.”

Thomas’ opinion notes little about Cosby, who is serving a three- to 10-year sentence in state prison for assaulting Andrea Constand at his Cheltenham home in 2004.

The case involving McKee was one of several legal battles the actor has faced. Several of the dozens of women who have accused him of sexual misconduct have sued him for defamation; he has sued others. In October, the Supreme Court denied a petition from Cosby’s lawyers involving a defamation suit brought by Janice Dickinson, a supermodel and one of Cosby’s most famous accusers. Dickinson was one of five women who testified last year in addition to Constand at Cosby’s trial in Montgomery County Court.

Cosby, 81, has maintained his innocence and denied all allegations of sexual misconduct; his wife and publicists have compared him to Nelson Mandela in claiming he is unjustly imprisoned. His publicist released a statement from Cosby on Tuesday thanking the Supreme Court for declining to review McKee’s 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,” the statement said. “This is the very reason, why I have No Remorse because I am Innocent and will continue to channel the strength of the Great Political Prisoners.”

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