Trinet Uzun/

When the United State Supreme Court recently denied certiorari in McKee v Cosby, Justice Clarence Thomas filed a concurrence. He was the only member of the court to write anything beyond the traditional one sentence order.

McKee sued Bill Cosby in federal court for defamation under State law as a result of allegedly defamatory statements about her made in his attorney’s letter to the New York Daily News responding to rape charges she had alleged against Cosby. The U.S. Court of Appeals for the First Circuit, 874 F3d 54 (2017), affirmed dismissal of the complaint under Michigan law and First Amendment principles because McKee had “‘thrust herself to the ‘forefront’ of the public controversy over ‘sexual allegations implicating Cosby’ and was therefore ‘a limited-purpose public figure’“ who had to prove actual malice. She sought review of that classification, and certiorari was denied. Speaking only for himself, Justice Thomas agreed “with the Court’s decision not to take up that factbound question,” but explained “why, in an appropriate case,” the court “should reconsider the precedents that require courts to ask“ that factbound question “in the first place.”

In 1964, New York Times v Sullivan reviewed a libel claim in which a director of police activities claimed to have been defamed by allegedly false statements concerning police conduct during a civil rights demonstration. The court held that federal law “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” According to Justice Thomas: “New 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.’”

The justice felt that the court “should not continue to reflexively apply this policy-driven approach to the Constitution.” Instead he feels the court “should carefully examine the original meaning of the First and Fourteenth Amendments, and stated that “[i]f the Constitution does not require public figures to satisfy an actual-malice standard in state law defamation suits, then neither should we.”

The Thomas concurrence developed his view that New York Times v. Sullivan “made no attempt to base [its holding] on the original understanding of the” First and Fourteenth Amendments; nor did so when expanding the need for actual malice to “public figure plaintiffs” in Curtis Publishing Co. v. Butts, or in applying it in other cases and contexts.

Quoting extensively from Justice White’s dissent in Gertz v. Robert Welch and other separate opinions by Justice White, the Thomas opinion in McKee concludes that New York Times v. Sullivan abandoned the principle of states’ rights and common-law understanding of libel as it was well known at the time the Constitution was adopted. He concluded that “there appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment,” and that “the states are perfectly capable of striking an acceptable balance between encouraging robust public disclosure and providing a meaningful remedy for reputational harm.”

Effectively, Justice Thomas is suggesting that the “original meaning” methodology of constitutional interpretation, developed in the 1980s, be retroactively applied to a decision which has served as precedential constitutional law since 1964. Aside from the fact that the sources cited by the concurrence are not necessarily harmonized by resort to original meaning, the suggestion to ‘reconsider our jurisprudence in this area’, which has been settled for over one-half a century, runs roughshod over the principle of stare decisis.

The Thomas concurrence is the opinion of only one member of the court and probably should not be unduly emphasized, but we take this occasion to state our belief that New York Times v. Sullivan was correctly decided. While it may leave some abuses without remedy, we believe that the opinion is both principled in legal analysis and has promoted good faith investigative reporting without fear of retaliatory lawsuits based on allegations of defamation.