How Clarence Thomas used Bill Cosby to call for a reconsideration of libel laws

PHILADELPHIA – The U.S. Supreme Court announced Tuesday that it will not consider a defamation case involving Bill Cosby. But the announcement came with a twist: Justice Clarence Thomas called for a reconsideration of the nation’s libel laws.

Kathrine McKee, one of the dozens of women who have accused Cosby of sexual assault or sexual misconduct, had asked the Supreme 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 case because they found that by disclosing her allegations against Cosby to the media, she had become a public figure. That “public figure” distinction makes it harder to sue for defamation.

Thomas, in a 14-page opinion issued Tuesday, agreed with the 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 ruled that public figures must prove that a statement about them was made with “actual malice,” or a disregard for whether it is false, in order to succeed in defamation cases.

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 Co. 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 is “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 New York Times that supported the civil rights movement and alleged that the movement faced terror from police in Alabama. L.B. Sullivan, the 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 public officials cannot collect damages for defamation unless they can prove that false statements made about them were made 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, Pa., home in 2004.

The case involving McKee was one of several legal battles the actor has faced. Several of the dozens of women 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.