PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
petition for a writ of certiorari is denied.
JUSTICE THOMAS, concurring in the denial of certiorari.
December 2014, petitioner Kathrine McKee publicly accused
actor and comedian Bill Cosby of forcibly raping her some 40
years earlier. McKee contends that Cosby's attorney
responded on his behalf by writing and leaking a defamatory
letter. According to McKee, the letter deliberately distorts
her personal background to "damage her reputation for
truthfulness and honesty, and further to embarrass, harass,
humiliate, intimidate, and shame" her. App. to Pet. for
Cert. 93a. She alleges that excerpts of the letter were
disseminated via the Internet and published by news outlets
around the world.
filed suit in federal court for defamation under state law,
but her case was dismissed. Applying New York Times Co.
v. Sullivan, 376 U.S. 254 (1964), and its progeny, the
Court of Appeals concluded that, by disclosing her accusation
to a reporter, McKee had" 'thrust' herself to
the 'forefront'" of the public controversy over
"sexual assault allegations implicating Cosby" and
was therefore a "limited-purpose public figure."
874 F.3d 54, 61-62 (CA1 2017) (citing Gertz v. Robert
Welch, Inc., 418 U.S. 323, 345 (1974)). Under this
Court's First Amendment precedents, public figures are
barred from recovering damages for defamation unless they can
show that the statement at issue was made with
"'actual malice'-that is, with knowledge that it
was false or with reckless disregard of whether it was false
or not." New York Times, supra, at 280. Like
many plaintiffs subject to this "almost impossible"
standard, McKee was unable to make that showing. See Dun
& Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749, 771 (1985) (White, J., concurring in judgment).
asks us to review her classification as a limited-purpose
public figure. I agree with the Court's decision not to
take up that fact bound question. I write to explain why, in
an appropriate case, we should reconsider the precedents that
require courts to ask it in the first place.
York Times and the Court's decisions extending it
were policy-driven decisions masquerading as constitutional
law. Instead of simply applying the First Amendment as it was
understood by the people who ratified it, the Court fashioned
its own "'federal rule[s]'" by balancing
the "competing values at stake in defamation
suits." Gertz, supra, at 334, 348 (quoting
New York Times, supra, at 279).
should not continue to reflexively apply this policy-driven
approach to the Constitution. Instead, we should carefully
examine the original meaning of the First and Fourteenth
Amendments. If the Constitution does not require public
figures to satisfy an actual-malice standard in state-law
defamation suits, then neither should we.
the founding of the Nation until 1964, the law of defamation
was "almost exclusively the business of state courts and
legislatures." Gertz, supra, at 369-370 (White,
J., dissenting). But beginning with New York Times,
the Court "federalized major aspects of libel law by
declaring unconstitutional in important respects the
prevailing defamation law in all or most of the 50
States." Gertz, supra, at 370. These decisions
made little effort to ground their holdings in the original
meaning of the Constitution.
York Times involved a full-page advertisement soliciting
support for the civil-rights movement and the legal defense
of Dr. Martin Luther King, Jr. 376 U.S., at 256-257. The
advertisement asserted that the movement was facing an
"'unprecedented wave of terror by those who would
deny and negate'" the protections of the
Constitution. Id., at 256. As an example, the
advertisement claimed that "'truckloads of
police'" in Montgomery, Alabama, "'armed
with shotguns and tear-gas, '" had surrounded a
college campus following a student demonstration.
Id., at 257. It further claimed that
"'[w]hen the entire student body protested to state
authorities by refusing to re-register, their dining hall was
padlocked in an attempt to starve them into
submission.'" Ibid. The advertisement also
stated that "'the Southern violators'" had
"'answered Dr. King's peaceful protests with
intimidation and violence, '" '"bombed his
home almost killing his wife and child, '"
"'assaulted his person, '"
"'arrested him seven times, '" and
"'charged him with "perjury."'"
Id., at 257-258.
Times made no independent effort to confirm the truth of
these claims, and they contained numerous inaccuracies.
Id., at 261. The Times eventually retracted the
Sullivan served as Montgomery's commissioner of public
affairs when the advertisement was published. Id.,
at 256. Although none of the "Southern violators"
was identified in the advertisement, Sullivan filed a libel
suit alleging that the statements implicating Montgomery
police officers were made "'of and
concerning'" him because his responsibilities
included supervising the police department. Id., at