SCOTUS’s Sullivan Ruling denies victims self-defense against the wealthy.

The following is an excerpt from the author’s forthcoming book, The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him, about the events surrounding the McKee v. Cosby case and Supreme Court jurisprudence.

When other women started accusing Bill Cosby of crimes, Katherine McKee’s trauma flooded back with unexpected force. What she had tried to block from her mind was now staring her in the face. She assumed her attack was an isolated incident, but now she knew she wasn’t alone.

McKee became especially enraged by how Cosby and his people retaliated against these women. Hadn’t he already taken enough from his victims? McKee knew Cosby had to be stopped, and she was confident that truth and justice were on her side. However, the time to press criminal charges had expired. McKee’s only option for justice was in the court of public opinion. In December 2014, she spoke with Nancy Dillon of the New York Daily News, and Dillon published McKee’s story on Dec. 22, 2014.

Cosby didn’t take the allegations lightly. Instead, he implemented a “scorched-earth strategy” against his accusers, and McKee was no exception. Following the release of the New York Daily News story, Cosby’s lawyer sent a letter to the paper accusing McKee of being a liar and engaging in “reckless conduct.”

The letter claimed that the newspaper had “recklessly labeled as ‘rape’ an alleged sexual encounter in the 1970’s during which … the accuser never objected, never said no, did not attempt to end the encounter, went to a party that night with her alleged attacker (and drove him to the party in her own car), and remained his friend and traded on his name for 40 years.” The letter also accused the paper of failing to investigate McKee’s allegedly damning background — “To say that Ms. McKee is not a reliable source is a gross understatement. Ample published information readily available to the Daily News completely undermines this story.”

McKee was undeterred by this attempt to besmirch her character. Instead, in December 2015, she filed a complaint (later amended) alleging that Cosby had engaged in defamation by having his lawyers falsely call her a liar in the press. As a result of Cosby’s lawyer’s work, some of the defamatory information was “published and disseminated broadly to the world at large, through the internet, television, and through other newsprint organizations to a very broad community.” Cosby’s goal, she alleged, was to discredit her “and to damage her reputation for truthfulness and honesty, and further to embarrass, harass, humiliate, intimidate, and shame” her. McKee wanted her day in court to prove that she was telling the truth and that Cosby and his hired guns were liars.

However, a dated yet still-standing Supreme Court case makes it difficult for anyone in the public eye to sue for defamation. In New York Times v. Sullivan, the Supreme Court ruled that public figures can recover from defamation only if they show that the defendant acted with “actual malice.” In other words, the plaintiff must prove that the defendant knew the reputation-attacking statement was false or recklessly disregarded its falsehood. This standard is “almost impossible” to meet.

McKee found herself in the crosshairs of the Sullivan decision. According to the Supreme Court, a person who “voluntarily injects” herself into a controversy can become a public figure for a “limited range of issues.” And the trial court had found that by talking to a reporter about Cosby’s alleged assault, McKee had done just that. She had become a “limited-purpose public figure.” Thus, the trial court dismissed the action. The court of appeals agreed and said that by speaking “with a reporter, McKee thrust herself to the forefront of this controversy, seeking to influence its outcome.”

McKee’s only remaining option was a Hail Mary pass: to seek review by the Supreme Court. In her petition to the court, McKee argued that her minimal interactions with a reporter did not make her a “public figure.” She did not ask the court to overrule New York Times v. Sullivan. Rather, her petition claimed that the lower courts had applied the precedent incorrectly.

Unfortunately for McKee, the Supreme Court does not typically review cases on the basis of a lower-court error. Generally, the court only hears cases when the law is unclear or if a party asks the court to overrule precedent. McKee’s petition didn’t do that, and the court declined to hear her case.

Justice Clarence Thomas’s Take

Unlike the rest of the court, Justice Clarence Thomas wasn’t ready to let the case go without comment. He agreed with McKee that the lower courts had applied the Sullivan precedent incorrectly and that the decision had “strayed from the text of the First Amendment.” Thomas argued that the Sullivan decision had created a “policy-driven” standard that was not supported by the Constitution. He also criticized the court for failing to take up McKee’s case, stating that the court’s refusal to hear the case “sends a message that there are no circumstances under which a public figure can be held accountable for defamation in a state court.”