Bill Cosby’s defamation case, McKee v. Cosby, presented the Supreme Court with an interesting question: whether a purported victim of sexual misconduct’s allegation of her victimhood thrusts her to the forefront of a public debate, thus transforming her into a limited-purpose public figure and requiring that she show “actual malice” to prevail in any defamation claim.1
The Supreme Court denied the petition for certiorari, with Justice Thomas writing a separate concurrence in the denial, calling on the Supreme Court to reconsider New York Times v. Sullivan, 376 U.S. 254 (1964). In Sullivan, the Supreme Court overturned a jury award in a libel case brought by a Montgomery, Alabama, city official against the New York Times for running a full-page civil rights ad that contained some false information that the official thought defamed him. The Court then proceeded to articulate what it viewed was “the proper accommodation between” the two competing interests: defamation and First Amendment speech and press protections. In doing so, the Court set forth a rule that prohibits a public official from recovering damages for a defamatory falsehood related to his official conduct unless he can show that the statement was made with “actual malice”: knowledge that the statement is false, or making the statement with reckless disregard for its veracity. Later cases have extended this “actual malice” standard to include plaintiffs categorized as “limited-purpose public figures,” i.e. individuals who insert themselves into public controversies in an attempt to influence the outcome.
Justice Thomas’s concurrence created headlines by describing the 1964 Sullivan ruling and decisions extending it as “policy-driven decisions masquerading as constitutional law.” This has in some ways revived the scholarly battle between originalists and “living constitutionalists” over whether judges are bound by the “original public meaning” of the Constitution (or any text).
Regardless of any interpretation controversies, Justice Thomas provides a helpful history on defamation law in England and the United States. Pre-Sullivan, the right to a reputation was paramount. According to Justice Thomas, Sullivan changed this, weighing the various competing interests in defamation law and trying to create its own “federal rules” by “balancing the ‘competing values at stake in defamation suits.’”2
Justice Thomas’s history makes a compelling case for both the originalists and the living constitutionalists to revisit Sullivan, limited-purpose public figures, and defamation law generally. Under an originalist reading, the original public meaning of the Constitution never would have allowed for the current iteration of the limited-purpose public figure doctrine. And under a “living constitution” reading, the competing interests of 1964 as articulated by Sullivan—namely, the freedom of the press and a desire to limit newspaper liability for defamation of public officials versus the rights of individuals to protect their reputation—may be oversimplified in the Internet era and the #metoo age. After all, today it seems that the lines between journalist and “citizen-reporter” blur, that truth is a defense, but #fakenews appears to be everywhere, and that both, accusing someone and being accused of sexual misconduct, can lead to a defamation claim.
Unless the Supreme Court or any other courts decide to revisit the limited-purpose public figure doctrine, succeeding in a defamation case will continue to be difficult. Regardless of the legal test, protecting your reputation will continue to be important. Indeed, the “uninterrupted enjoyment of . . . reputation” has been called a “core private right.”3 As far back as 1825, Justice Story wrote that, important as they were, First Amendment considerations could not be used to destroy someone’s reputation, because the “liberty of speech and the liberty of the press do not authorize malicious and injurious defamation.”4 The Supreme Court has blurred the lines between First Amendment protections and reputational rights. If someone wants to clarify that line, it sounds like Justice Thomas is saying #metoo.
1 See Aurora Barnes, Petition of the Day: McKee v. Cosby, SCOTUSblog (May 25, 2018, 8:20 PM), https://www.scotusblog.com/2018/05/petition-of-the-day-1390/.
2 McKee v. Cosby, 586 U.S. ____, No. 17-1542 (2019) (Thomas, J., concurring in the denial of certiorari).
3 Id. at *9 (quoting Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 567 (2007) (quoting 1 Blackstone *129)).
4 Id. (quoting Dexter v. Spear, 7 F. Cas. 624 (No. 3,867) (CC RI 1825)).