(The Hollywood Reporter)
Eriq Gardner February 19, 2019 6:49am
The U.S. Supreme Court has passed on an opportunity to examine speech in the #MeToo era. On Tuesday, the justices on the high court declined review of a case brought by Bill Cosby accuser Kathrine McKee, who alleged being defamed when Cosby’s attorney characterized her story of being raped four decades ago as a fabricated lie. While the high court won't tackle McKee's case, today's order is most notable because of a concurring statement from Justice Clarence Thomas who is calling for a re-examination of the jurisprudence that has made it more tough for public figures to carry defamation claims in court.
The denial of certiorari in Kathrine McKee v. William Cosby comes five months after the comedian was sentenced to three to 10 years in prison for sexually assaulting another woman Andrea Constand. Before finally weighing in on McKee's case, the justices deferred consideration nearly a dozen times over the course of several months perhaps out of sensitivity surrounding the Capitol Hill confirmation fight over Brett Kavanaugh, who himself was accused of sexual misconduct.
The question presented in McKee’s petition was whether an individual becomes a public figure by making an accusation of being victimized. In short, “me too.” In fact, when McKee brought this case to the Supreme Court, her petition nodded to Harvey Weinstein and how allegations against the movie mogul inspired numerous women to stand up on social media with the hashtags, #MeToo and #TimesUp. (Weinstein himself faces civil claims, including defamation from various women.)
In defamation law, thanks to the 1964 decision in New York Times Co. v. Sullivan, plaintiffs need to demonstrate actual malice on the part of public figure defendants in order to prevail on a defamation claim. Applied here, that would mean the statement put out by Cosby’s ex-attorney Marty Singer in reaction to press reports about her alleged rape was knowingly false or recklessly disregarded the truth.
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