Actor Bill Cosby and spokesman Andrew Wyatt talk to the media at Cosby’s sexual assault retrial at the Montgomery County Courthouse in Norristown, Pennsylvania, on April 10, 2018. Photo: Michael Candelori/

Justice Clarence Thomas, writing in a defamation case against entertainer Bill Cosby, urged the U.S. Supreme Court on Tuesday to reconsider its landmark decision requiring public figures to prove “actual malice” before they can recover any damages in defamation lawsuits.

Thomas described the 1964 high court precedent, New York Times v. Sullivan, and subsequent related cases, as “policy-driven decisions masquerading as constitutional law.” Thomas wrote:

“We 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 Supreme Court on Tuesday turned down a petition filed by Katherine McKee, an actress who publicly accused Cosby in a 2014 newspaper interview of raping her 40 years ago. A lawyer for Cosby, responding to the claim, wrote a letter, subsequently published in the New York Daily News, denying the claim. The attorney attacked McKee and the newspaper for publishing her claim.

A federal district court dismissed McKee’s claims on First Amendment grounds, and the U.S. Court of Appeals for the First Circuit affirmed in October 2017.

Thomas concurred in the denial of McKee’s petition but he used his 14-page concurrence to argue why the justices should revisit the “actual malice” standard.

Thomas said McKee, like many plaintiffs, was unable to make “the almost impossible” showing that the statements involving her were made with actual malice—with knowledge that it was false or with reckless disregard of whether it was false or not.

The New York Times decision, Thomas wrote, was the first major step in constitutionalizing the entire law of libel and slander. None of the decisions that followed and expanded that decision, Thomas said, was grounded in the Constitution’s original meaning and the libel rulings “broke sharply” from the common law of libel.

“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Thomas wrote. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”

President Donald Trump has often called for relaxing defamation and libel standards, responding to media and published criticism of his presidency.

“Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost,” Trump wrote on Twitter last September. “Don’t know why Washington politicians don’t change libel laws?”

Thomas is known for having little respect for stare decisis in constitutional cases and since joining the high court in 1991, has called for reconsideration or reversal of more than three dozen precedents.

The late Justice Antonin Scalia told Thomas biographer Ken Foskett that Thomas “doesn’t believe in stare decisis, period.” In a 2016 lecture at the Heritage Foundation, Thomas said, “The Constitution is the ultimate stare decisis.”


The Supreme Court’s order in McKee v. Cosby is posted below:


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