The following is an excerpt from the author’s forthcoming book, The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him, about the events surrounding the McKee v. Cosby case and Supreme Court jurisprudence.
When other women started accusing Bill Cosby of crimes, Katherine McKee’s trauma flooded back with unexpected force. What she had tried to block from her mind was now staring her in the face. She assumed her attack was an isolated incident, but now she knew she wasn’t alone.
McKee became especially enraged by how Cosby and his people retaliated against these women. Hadn’t he already taken enough from his victims? McKee knew Cosby had to be stopped, and she was confident that truth and justice were on her side. However, the time to press criminal charges had expired. McKee’s only option for justice was in the court of public opinion. In December 2014, she spoke with Nancy Dillon of the New York Daily News, and Dillon published McKee’s story on Dec. 22, 2014.
Cosby didn’t take the allegations lightly. Instead, he implemented a “scorched-earth strategy” against his accusers, and McKee was no exception. Following the release of the New York Daily News story, Cosby’s lawyer sent a letter to the paper accusing McKee of being a liar and engaging in “reckless conduct.”
The letter claimed that the newspaper had “recklessly labeled as ‘rape’ an alleged sexual encounter in the 1970’s during which … the accuser never objected, never said no, did not attempt to end the encounter, went to a party that night with her alleged attacker (and drove him to the party in her own car), and remained his friend and traded on his name for 40 years.” The letter also accused the paper of failing to investigate McKee’s allegedly damning background — “To say that Ms. McKee is not a reliable source is a gross understatement. Ample published information readily available to the Daily News completely undermines this story.”
McKee was undeterred by this attempt to besmirch her character. Instead, in December 2015, she filed a complaint (later amended) alleging that Cosby had engaged in defamation by having his lawyers falsely call her a liar in the press. As a result of Cosby’s lawyer’s work, some of the defamatory information was “published and disseminated broadly to the world at large, through the internet, television, and through other newsprint organizations to a very broad community.” Cosby’s goal, she alleged, was to discredit her “and to damage her reputation for truthfulness and honesty, and further to embarrass, harass, humiliate, intimidate, and shame” her. McKee wanted her day in court to prove that she was telling the truth and that Cosby and his hired guns were liars.
However, a dated yet still-standing Supreme Court case makes it difficult for anyone in the public eye to sue for defamation. In New York Times v. Sullivan, the Supreme Court ruled that public figures can recover from defamation only if they show that the defendant acted with “actual malice.” In other words, the plaintiff must prove that the defendant knew the reputation-attacking statement was false or recklessly disregarded its falsehood. This standard is “almost impossible” to meet.
McKee found herself in the crosshairs of the Sullivan decision. According to the Supreme Court, a person who “voluntarily injects” herself into a controversy can become a public figure for a “limited range of issues.” And the trial court had found that by talking to a reporter about Cosby’s alleged assault, McKee had done just that. She had become a “limited-purpose public figure.” Thus, the trial court dismissed the action. The court of appeals agreed and said that by speaking “with a reporter, McKee thrust herself to the forefront of this controversy, seeking to influence its outcome.”
McKee’s only remaining option was a Hail Mary pass: to seek review by the Supreme Court. In her petition to the court, McKee argued that her minimal interactions with a reporter did not make her a “public figure.” She did not ask the court to overrule New York Times v. Sullivan. Rather, her petition claimed that the lower courts had applied the precedent incorrectly.
Unfortunately for McKee, the Supreme Court does not typically review cases on the basis of a lower-court error. Generally, the court only hears cases when the law is unclear or if a party asks the court to overrule precedent. McKee’s petition didn’t do that, and the court declined to hear her case.
Unlike the rest of the court, Justice Clarence Thomas wasn’t ready to let the case go without comment. He agreed that the court should not wade into a dispute about whether McKee was a “limited-public figure.” However, he said it was time to revisit New York Times v. Sullivan — the precedent under which the lower courts dismissed McKee’s case.
Specifically, Thomas explained that the Constitution allowed the states to define defamation from the founding until 1964. This changed when the Supreme Court announced the decision in New York Times v. Sullivan. Thomas went on to critique this: “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
In Sullivan, the Supreme Court applied its novel “actual-malice” standard to public figures (in that case, an elected official). Various subsequent decisions expanded the new standard’s scope to include “private persons who ‘thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.’” But none of this “judge-made law” was grounded in the original meaning of the Constitution.
As he often does, Thomas then recounted the history of American law, which contradicts the very premise of New York Times v. Sullivan. At the time of the founding, the common law deemed false statements against public figures to be “more serious and injurious” than those against private figures. But it allowed people to make a personal attack against a public figure “so far as it … respect[ed] his fitness and qualifications for the office,” and so long as it was true.
The Supreme Court had distorted all of that, Thomas explained, by “displacing state defamation law.” Federal courts shouldn’t take power away from the states for policy reasons alone. On the contrary, as he wrote, “States are perfectly capable of striking a balance between encouraging a robust public discourse and providing a meaningful remedy for reputational harm.” McKee should not have been prevented from having her day in court merely because she was considered “a limited-purpose public figure.”
Since McKee v. Cosby, Thomas has consistently called for the overruling of New York Times v. Sullivan. Instead of “insulat[ing] those who perpetrate lies,” he believes “we should give them only the protection the First Amendment requires.”
He continues to issue solo opinions each time the court denies litigants the opportunity to revisit Sullivan. In one such case, the Southern Poverty Law Center labeled a Christian nonprofit organization “an anti-LGBT hate group.” As a result of that label, Amazon barred the group from receiving donations through AmazonSmile, costing the group a significant amount of money. In response, the nonprofit sued, noting that while it opposed “homosexual conduct” based on its religious beliefs, it “has never attacked or maligned anyone” for engaging in that type of conduct. In short, the nonprofit asserted that the “hate group” label was defamatory and caused them material harm. However, the organization was considered a “public figure,” and it could not meet the “almost impossible” actual-malice standard to sue for defamation.
Thomas doesn’t criticize New York Times v. Sullivan simply because it is unsupported by both the text of the Constitution and American history; he also recognizes the real-world harms it poses to people like McKee. Even in a small community, so long as a person has some degree of prominence — a high school football coach, for example — he has essentially no recourse against false accusations.
Thomas did not forget about McKee. Two years after her case was rejected, Thomas reminded the court, in another solo opinion, that Sullivan had denied McKee the right “to defend her reputation in court simply because she accuse[d] a powerful man of rape.”