Global Freedom of Expression

McKee v. Crosby

Closed Contracts Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    February 19, 2019
  • Case Number
    586 U. S. ____ (2019)
  • Region & Country
    United States, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    Defamation / Reputation
  • Tags
    Disinformation, Misinformation, Sexual Harassment, Actual Malice

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Case Analysis

Case Summary and Outcome

Justice Thomas of the Supreme Court of the United States wrote an opinion concurring in the denial of certiorari in which he stated that the “actual malice” doctrine established in the New York Times v. Sullivan case should be reconsidered by the Court. An individual had filed a defamation case against Bill Cosby after a defamatory letter was leaked to the media following her allegations that Cosby had raped her. The Lower Courts dismissed the case, categorizing the individual as a “limited-purpose public figure” and finding that she had not been able to prove Cosby acted with actual malice in the publication of the letter, as required by the Sullivan doctrine for defamation cases brought by public figures. The individual approached the Supreme Court seeking a review of the categorization as a public figure. The Court refused to hear the matter, and while concurring with that decision, Justice Thomas questioned the continued applicability of the Sullivan doctrine, arguing that there was no historical or constitutional basis for the adoption of the doctrine in that case.


In December 2014, Kathrine McKee had publicly alleged that actor and comedian Bill Cosby had raped her forty years previously. McKee submitted that Cosby’s attorney had leaked a letter to the media which served to “damage her reputation for truthfulness and honesty, and further to embarrass, harass, humiliate, intimidate, and shame” her [p. 1]. McKee filed a defamation suit against Cosby.

The Federal Court dismissed McKee’s application, applying the “actual malice” doctrine established in the New York Times v. Sullivan case. This doctrine requires that when the defendant in a defamation suit is a public figure they must demonstrate that a publisher acted with actual malice – “that is, with the knowledge that it was false or with reckless disregard of whether it was false or not” – in publishing false statements [p. 1]. The Court of Appeals categorized McKee as a “limited-purpose public figure” since she had made her accusation of rape to a reporter and so had “’thrust’ herself to the ‘forefront’ of the public controversy over ‘sexual assault allegations implicating Cosby’” [p. 1].

McKee appealed to the Supreme Court, seeking a review of the categorization of her as a “limited-purpose public figure”.

Decision Overview

The Supreme Court denied certiorari and so refused to hear the matter. The central issue for the Court’s determination was whether to hear McKee’s question of whether she should have been classified as a “limited-purpose public figure”. Justice Thomas concurred in the denial, but stated that the Court should revisit the precedent that requires it to ask whether a person is a “public figure” in defamation cases when an appropriate case arises.

Justice Thomas noted two specific problems with the development of the law in the Sullivan case: there was neither a constitutional basis nor historical basis for making the change.

In respect of whether there was a constitutional basis for introducing the actual malice requirement, Justice Thomas noted that, prior to the Sullivan case, libel law had been a predominantly state-law concern but that the Sullivan case made it federal law by introducing constitutional considerations into defamation assessments. He described the Sullivan case (and the cases following it) as “policy-driven decisions masquerading as constitutional law” and accused the Court of not correctly applying the First and Fourteenth Amendments [p. 2]. Justice Thomas 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” [p. 2]. However, he commented that – despite introducing this constitutional element into defamation law – the Court had “made little effort to ground their holdings in the original meaning of the Constitution” [p. 2].

Justice Thomas examined the historical trends of the common law of libel, and referred to the case of Dun & Bradstreet, Inc v. Greenmoss Builders which had identified that a defamed individual needed only to prove “a false written publication that subjected him to hatred, contempt, or ridicule” [p. 6]. He added that, as well as to not requiring an additional requirement of proving “actual malice” for public figures, the common law actually “deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels” [p. 7]. Justice Thomas accepted that there had been a privilege afforded to publishers who commented on public officials and on issues of public interest, but stressed that this only applied when the facts stated were true. Justice Thomas emphasized that the Sullivan decision did not reflect the prevailing common law and that when the First and Fourteenth Amendments were adopted the common law did not require public figures to “satisfy any kind of heightened liability standard as a condition of recovering damages” [p. 6], and he questioned whether the First or Fourteenth Amendments “as originally understood, encompasses an actual-malice standard for public figures” [p. 10]. Relying on Justice White’s dissenting opinion in the Gertz v. Robert Welch, Inc case, Justice Thomas remarked that there was “little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment” [p. 14]. He also noted that before the adjudication of the Sullivan case, the First Amendment did not displace the common law of libel. He referred to the Dexter v. Spear case which had noted that “the liberty of speech, or of the press, … are not endangered by the punishment of libellous publications. The liberty of speech and the liberty of the press does not authorize malicious and injurious defamation”. [page 9]

Justice Thomas concluded that “[t]he States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm” and that the jurisprudence in this area therefore needs reconsideration [p. 14].

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

In recommending the reconsideration of the actual malice doctrine Justice Thomas placed greater weight on the right to reputation than the right to freedom of expression. Such a reconsideration, resulting in a return to historical standards of common law of libel, would be at odds with current international standards which require public officials to tolerate a higher level of criticism on issues of public importance, and overturning the standard could have a substantial chilling effect on public discourse.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • E.U. Gertz vs. Robert Welch Inc., 418 U.S. 323, 341 (1974)
  • U.S., New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
  • U.S., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)
  • U.S., Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)
  • U.S., Garrison v. Louisiana, 379 U.S. 64 (1964)
  • U.S., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)
  • U.S., Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984)
  • U.S., Beauharnais v. Illinois, 343 U.S. 250 (1952)
  • U.S., Roth v. United States, 354 U.S. 476 (1957)
  • U.S., Commonwealth v. Clap, 4 Mass. 163, 169–170 (1808)
  • U.S., White v. Nicholls, 3 How. 266, 290 (1845)
  • U.S., Dexter v. Spear, 7 F. Cas. 624 (No. 3,867) (CC RI 1825)
  • U.S., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
  • U.S., Near v. Minnesota, 283 U.S. 697 (1931)
  • U.S., Schneider v. State (Town of Irvington), 308 U. S. 147, 160 (1939)
  • U.S., Root v. King, 7 Cow. 613, 628 (N. Y. 1827)
  • U.S., Hamilton v. Eno, 81 N. Y. 116, 126 (1880)
  • U.S., Lewis v. Few, 5 Johns. 1 (N. Y. 1809)
  • U.S., Royce v. Maloney, 58 Vt. 437, 447–448, 5 A. 395, 400 (1886)
  • U.S., Wheaton v. Beecher, 66 Mich. 307, 309–310, 33 N. W. 503, 505–506 (1887)
  • U.S., Prosser v. Callis, 117 Ind. 105, 108–109, 19 N. E. 735, 737 (1889)
  • U.S., People v. Croswell 3 Johns.Cas. 337 (N.Y. Supreme Court 1804)
  • U.S., Commonwealth v. Blanding, 20 Mass. 304, 311–314 (1825)

Case Significance

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