Thomas Pans Malice Standard in Appeal by Cosby Accuser

WASHINGTON (CN) – Though apparently unanimous, the Supreme Court’s rejection of a defamation case by a Bill Cosby accuser triggered a lengthy treatise on the standard of malice Tuesday from Justice Clarence Thomas. 

Bill Cosby, center, leaves the courtroom after he was sentenced to three-to 10-years for felony sexual assault on Sept. 25, 2018, in Norristown, Pa. (Mark Makela/Pool Photo via AP)

“If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we,” Thomas wrote, concurring in the denial of a writ of certiorari to Kathrine McKee.

It’s been five years since McKee joined dozens of other women in claiming that she had been drugged and raped by the iconic star of “The Bill Cosby Show” decades earlier.

Though Cosby was eventually convicted of assaulting one of his accusers, the comedian inspired a rash of defamation claims from the women he otherwise portrayed as liars.

In McKee’s case, she claims that her reputation was damaged by the leak of a letter designed to “humiliate, intimidate, and shame” her. 

Last year the First Circuit affirmed dismissal of her case, however, after applying precedent from the 1964 decision New York Times Co. v. Sullivan.

As Thomas explains, this case and its progeny assert “that, by disclosing her accusation to a reporter, McKee had ‘“thrust” herself to the “forefront”’ of the public controversy over ‘sexual assault allegations implicating Cosby’ and was therefore a ‘limited-purpose public figure.’”

Thomas goes on in the opinion to quote the description of the limited-purpose public figure standard as “almost impossible” to overcome. 

“Under this court’s First Amendment precedents, public figures are barred from recovering damages for defamation unless they can show that the statement at issue was made with ‘“actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,’” Thomas wrote.

Though the justice agreed that McKee’s case is not the right vehicle for this issue, Thomas said it is one the court should soon tackle. 

New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” he wrote. “Instead of simply applying the First Amendment as it was understood by the people who ratified it, the court fashioned its own ‘“federal rules”’ by balancing the ‘competing values at stake in defamation suits,’” the opinion states. 

“We should not continue to reflexively apply this policy-driven approach to the Constitution,” the opinion continues. “Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

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