The United States Law Week

Thomas Urges Revisiting Libel Law, Questions Malice Standard (3)

Feb. 19, 2019, 2:58 PMUpdated: Feb. 19, 2019, 7:44 PM

The U.S. Supreme Court should revisit its foundational rulings on libel grounded in the standard of actual malice after turning away a request to hear a defamation claim against Bill Cosby, Justice Clarence Thomas said.

Thomas said in a lengthy concurrence that the justices should reconsider precedents in the touchstone New York Times Co. v. Sullivan and other decisions in light of the original understanding of the First Amendment.

“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.

Thomas often suggests that the court revisit prior rulings. But most justices believe in adherence to precedent “a lot more strongly” than him, Kevin M. Goldberg, a member at Fletcher, Heald & Hildreth, P.L.C. in Arlington, Va., who focuses on the First Amendment, told Bloomberg Law.

President Donald Trump, a vocal critic of the nation’s libel laws, will likely feel encouraged by Thomas’s opinion, Goldberg said.

But Sullivan is “very well settled” law, said Leonard M. Niehoff, a professor at the University of Michigan Law School who focuses on the First Amendment.

There are numerous opinions interpreting and clarifying it, and revisiting it could “destabilize an entire body of important First Amendment doctrine,” Niehoff said.

Limited Public Figure

The unanimous 1964 high court ruling in Sullivan protects news outlets from libel claims so long as they don’t knowingly publish false information or act recklessly regarding the truth. It’s a high bar for public figures to clear in court.

Here, the Supreme Court refused to consider whether Katherine McKee had to satisfy a higher burden of proof to bring a defamation claim against Cosby, the comedian and actor now imprisoned after being convicted of sex assault last year.

Specifically, the justices refused to examine the contours of a “limited public figure” within the context of sex assault allegations. The actress and casting agent said she’s not a limited public figure requiring a higher standard for proof simply because she came forward with her allegations against Cosby.

McKee argues that she should be allowed to pursue her defamation claim related to a letter Cosby sent the New York Daily News after it published her allegations that he raped her at a Detroit hotel in the 1970s. McKee alleged that Cosby’s letter, which attacked her credibility, caused significant harm to her reputation.

A lower court disagreed with her argument, saying she thrust herself into a public controversy which made her a limited public figure for defamation purposes.

To prevail, it said McKee was required to show that the allegations were false and made with “actual malice.” That means Cosby made them knowing they were false or with reckless disregard of their accuracy.

Court ‘Meddling’

But the actual malice rule lacks historical support, wrote Thomas, adding that there’s little evidence that the rule “flows from the original understanding of” the First or 14th Amendments.

The court didn’t “begin meddling” in the area of defamation until the Sullivan decision, almost 175 years after ratification of the First Amendment, Thomas said.

In Sullivan, the court reversed a ruling in favor of a public official who sued the Times alleging inaccuracies in an ad soliciting support for the civil rights movement.

Thomas wrote that Sullivan and its progeny “were policy-driven decisions masquerading as constitutional law.” Before 1964, defamation law was almost exclusively a matter for state courts and legislatures to handle, he said.

But the Sullivan court issued the actual malice rule without attempting to base it on the original understanding of the First and 14th Amendments, he said.

Thomas said that when those amendments were ratified, the common law of libel didn’t require public figures to meet a heightened standard for liability.

Thomas’s call for the court to reevaluate the actual malice standard “should be applauded by all Americans,” Elizabeth M. Locke, a defamation lawyer and partner at Clare Lock LLP, Alexandria, Va., said.

“There is simply nothing in the text, structure, or original meaning of the First Amendment that supports applying this heightened intent requirement to defamation plaintiffs,” Locke said.

Others disagreed. Sullivan is the basis for Americans enjoying “more freedom to talk about our government than anyone else in the world,” Sonja West, a professor who focuses on the First Amendment at the University of Georgia School of Law, Athens, said.

But eliminating Sullivan could “open the door” to Trump and other public officials filing many more libel suits, Michael Overing, an adjunct professor who focuses on defamation at the University of Southern California’s Annenberg School for Communication & Journalism, said.

It’s easier to sue under a negligence standard than actual malice, he said.

Media Protection

The “media has benefited from virtual immunity” as a result of Sullivan, Locke said.

“The consequences have been significant, including the decline in the American public’s trust in the media and an American media run amok with repeated, serious failures in reporting,” Locke said.

Locke cited inaccurate reporting on controversies including “Rolling Stone’s reporting on a fabricated gang rape” at the University of Virginia.

But West said she’s thankful that Sullivan “gave journalists and the public the freedom to take a close, careful and skeptical look at the actions of public officials and powerful public figures.”

Before that decision, even “a minor or honest mistake could result in a debilitating judgment against the speaker, and the First Amendment offered no protection,” West said.

One rationale for treating public figures differently under libel law is that they have greater access to media and can therefore dispute false claims more easily than private figures, Overing said.

But Overing said that rationale no longer fits.

It’s now possible for virtually anyone to refute false claims about them by blogging, commenting at the end of news stories online, or other internet means, Overing said.

The case is McKee v. Cosby, U.S., No. 17-1542, review denied 2/19/19.

(updates with additional reporting throughout)

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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