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THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
KATHRINE MAE MCKEE v. WILLIAM H. COSBY, JR.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 17–1542 Decided February 19, 2019
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, concurring in the denial of certiorari.
In 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 deliber-
ately 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.
McKee 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
2 MCKEE v. COSBY
THOMAS, J., concurring
280. Like many plaintiffs subject to this “almost impos-
sible” 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).
McKee asks us to review her classification as a limited-
purpose public figure. I agree with the Court’s decision
not to take up that factbound 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.
New York Times and the Court’s decisions extending it
were policy-driven decisions masquerading as constitu-
tional law. Instead of simply applying the First Amend-
ment 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).
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.
I
From 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.
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THOMAS, J., concurring
A
New 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 Constitu-
tion. Id., at 256. As an example, the advertisement
claimed that “ ‘truckloads of police’ ” in Montgomery, Ala-
bama, “ ‘armed with shotguns and tear-gas,’ ” had sur-
rounded a college campus following a student demonstra-
tion. Id., at 257. It further claimed that “ ‘[w]hen the
entire student body protested to state authorities by refus-
ing 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 intimi-
dation 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.
The Times made no independent effort to confirm the
truth of these claims, and they contained numerous inac-
curacies. Id., at 261.1 The Times eventually retracted the
advertisement. Ibid.
L. B. 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
——————
1 For example, the police did not “at any time” surround the campus
when deployed near it; the dining hall “was not padlocked on any
occasion”; the student protesters had not “refus[ed] to register” but
rather “boycott[ed] classes on a single day”; “Dr. King had not been
arrested seven times, but only four”; and the police “were not only not
implicated in the bombings, but had made every effort to apprehend
those who were.” New York Times, 376 U. S., at 259.
4 MCKEE v. COSBY
THOMAS, J., concurring
alleging that the statements implicating Montgomery
police officers were made “ ‘of and concerning’ ” him be-
cause his responsibilities included supervising the police
department. Id., at 256, 262. A jury awarded Sullivan
$500,000, and the Supreme Court of Alabama affirmed.
Id., at 256.
This Court reversed. Id., at 264. It held that the evi-
dence in the record was “incapable of supporting the jury’s
finding” that the false statements were made about Sulli-
van, who was not mentioned “by name or official position”
in the advertisement. Id., at 288. The advertisement was
an “impersonal attack on governmental operations” and
could not by “legal alchemy” be transformed into “a libel of
an official responsible for those operations.” Id., at 292.
This holding was sufficient to resolve the case.
But the Court also addressed “the extent to which the
constitutional protections for speech and press limit a
State’s power to award damages in a libel action brought
by a public official against critics of his official conduct.”
Id., at 256. The Court took it upon itself “to define the
proper accommodation between” two competing inter-
ests—“the law of defamation and the freedoms of speech
and press protected by the First Amendment.” Gertz, 418
U. S., at 325 (majority opinion). It consulted a variety of
materials to assist it in its analysis: “general proposi-
tion[s]” about the value of free speech and the inevitability
of false statements, New York Times, 376 U. S., at 269–
272, and n. 13; judicial decisions involving criminal con-
tempt and official immunity, id., at 272–273, 282–283;
public responses to the Sedition Act of 1798, id., at 273–
277; comparisons of civil libel damages to criminal fines,
id., at 277–278; policy arguments against “self-
censorship,” id., at 278–279; the “consensus of scholarly
opinion,” id., at 280, n. 20; and state defamation laws, id.,
at 280–282. These materials led the Court to promulgate
a “federal rule” that “prohibits a public official from recov-
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THOMAS, J., concurring
ering 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.” Id., at 279–280. Although the Court held
that its newly minted actual-malice rule was “required by
the First and Fourteenth Amendments,” id., at 283, it
made no attempt to base that rule on the original under-
standing of those provisions.
B
New York Times was “the first major step in what
proved to be a seemingly irreversible process of constitu-
tionalizing the entire law of libel and slander.” Dun &
Bradstreet, 472 U. S., at 766 (White, J., concurring in
judgment). The Court promptly expanded the actual-
malice rule to all defamed “ ‘public figures,’ ” Curtis Pub-
lishing Co. v. Butts, 388 U. S. 130, 134 (1967), which it
defined to include private persons who “thrust themselves
to the forefront of particular public controversies in order
to influence the resolution of the issues involved,” Gertz,
supra, at 345. The Court also extended the actual-malice
rule to criminal libel prosecutions, Garrison v. Louisiana,
379 U. S. 64 (1964), and even restricted the situations in
which private figures could recover for defamation against
media defendants, Gertz, supra, at 347, 349; Philadelphia
Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986).
None of these decisions made a sustained effort to
ground their holdings in the Constitution’s original mean-
ing. As the Court itself acknowledged, “the rule enunciated
in the New York Times case” is “largely a judge-made rule
of law,” the “content” of which is “given meaning through
the evolutionary process of common-law adjudication.”
Bose Corp. v. Consumers Union of United States, Inc., 466
U. S. 485, 501–502 (1984). Only Justice White grappled
with the historical record, and he concluded that “there
6 MCKEE v. COSBY
THOMAS, J., concurring
are wholly insufficient grounds for scuttling the libel laws
of the States in such wholesale fashion, to say nothing of
deprecating the reputation interest of ordinary citizens
and rendering them powerless to protect themselves.”
Gertz, supra, at 370 (dissenting opinion).
II
The constitutional libel rules adopted by this Court in
New York Times and its progeny broke sharply from the
common law of libel, and there are sound reasons to ques-
tion whether the First and Fourteenth Amendments dis-
placed this body of common law.
A
The common law of libel at the time the First and Four-
teenth Amendments were ratified did not require public
figures to satisfy any kind of heightened liability standard
as a condition of recovering damages. Typically, a de-
famed individual needed only to prove “a false written
publication that subjected him to hatred, contempt, or
ridicule.” Dun & Bradstreet, supra, at 765 (White, J.,
concurring in judgment); see 4 W. Blackstone, Commen-
taries *150 (Blackstone); H. Folkard, Starkie on Slander
and Libel *156 (H. Wood ed., 4th Eng. ed. 1877) (Starkie).
Malice was presumed in the absence of an applicable
privilege, right, or duty. Id., at *293–*294. General injury
to reputation was also presumed, special damages could be
recovered, and punitive damages were available if actual
malice was established. Dun & Bradstreet, supra, at 765
(White, J., concurring in judgment); see Starkie *151,
*322–*323; M. Newell, Defamation, Libel and Slander
842–843 (1890) (Newell). Truth was a defense to a civil
libel claim. See Starkie *170, *528–*530; 4 Blackstone
*150–*151. But where the publication was false, even if
the defendant could show that no reputational injury oc-
curred, the prevailing rule was that at least nominal
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THOMAS, J., concurring
damages were to be awarded. Dun & Bradstreet, supra, at
765 (White, J., concurring in judgment) (citing Restate-
ment of Torts §569, Comment b, p. 166 (1938)); see Starkie
*492; Newell 839.
Libel was also a “common-law crime, and thus criminal
in the colonies.” Beauharnais v. Illinois, 343 U. S. 250,
254 (1952); see 4 Blackstone *150–*153. The same princi-
ples generally applied, except that truth traditionally was
not a defense to libel prosecutions—the crime was intended
to punish provocations to a breach of the peace, not the
falsity of the statement. See id., at *150–*151; Starkie
*712–*713. Laws authorizing the criminal prosecution of
libel were both widespread and well established at the
time of the founding. See Roth v. United States, 354 U. S.
476, 482, and n. 11 (1957); Newell 28–29 (describing colo-
nial statutes dating back to 1645 and 1701). And they
remained so when the Fourteenth Amendment was adopted,
although many States by then allowed truth or good mo-
tives to serve as a defense to a libel prosecution. Beau-
harnais, supra, at 254–255, and n. 4.
Far from increasing a public figure’s burden in a defa-
mation action, the common law deemed libels against
public figures to be, if anything, more serious and injuri-
ous than ordinary libels. See 3 Blackstone *124 (“Words
also tending to scandalize a magistrate, or person in a
public trust, are reputed more highly injurious than when
spoken of a private man”); 4 id., at *150 (defining libels as
“malicious defamations of any person, and especially a
magistrate, made public by either printing, writing, signs,
or pictures, in order to provoke him to wrath, or expose
him to public hatred, contempt, and ridicule” (emphasis
added)). Libel of a public official was deemed an offense
“ ‘most dangerous to the people, and deserv[ing of] pun-
ishment, because the people may be deceived and reject
the best citizens to their great injury, and it may be to the
loss of their liberties.’ ” Newell 533 (quoting Common-
8 MCKEE v. COSBY
THOMAS, J., concurring
wealth v. Clap, 4 Mass. 163, 169–170 (1808)); accord,
White v. Nicholls, 3 How. 266, 290 (1845).2
The common law did afford defendants a privilege to
comment on public questions and matters of public inter-
est. Starkie *237–*238. This privilege extended to the
“public conduct of a public man,” which was a “matter of
public interest” that could “be discussed with the fullest
freedom” and “made the subject of hostile criticism.” Id.,
at *242. Under this privilege, “criticism may reasonably
be applied to a public man in a public capacity which
might not be applied to a private individual.” Ibid. And
the privilege extended to the man’s character “ ‘so far as it
may respect his fitness and qualifications for the office,’ ”
which was in the interest of the people to know. White,
supra, at 290 (quoting Clap, supra, at 169).
But the purposes underlying this privilege also defined
its limits. Thus, the privilege applied only when the facts
stated were true. Starkie *238, n. 4; White, supra, at 290.
And the privilege did not afford the publisher an oppor-
tunity to defame the officer’s private character. Starkie
*238; see id., at *242 (“The question for the jury is, whether
the writer has transgressed the bounds within which
comments upon the character of a public man ought to be
confined . . . ”); ibid. (distinguishing between criticism of
public conduct and the “imputation of motives by which
——————
2 In England, “[w]ords spoken in derogation of a peer, a judge, or other
great officer of the realm” were called scandalum magnatum and were
“held to be still more heinous”; such words could support a claim that
“would not be actionable in the case of a common person.” 3 Blackstone
*123 (emphasis added); Starkie *142–*143. This action, recognized by
English statutes dating back to 1275, had fallen into disuse by the 19th
century and was not employed in the United States. See id., at *142,
n. 1 (“In this country, no distinction as to persons is recognized, and in
practice, a person holding a high office is regarded as a target at whom
any person may let fly his poisonous words”). Nevertheless, the action
of scandalum magnatum confirms that the law of defamation histori-
cally did not impose a heightened burden on public figures as plaintiffs.
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THOMAS, J., concurring
that conduct may be supposed to be actuated”). “One may
in good faith publish the truth concerning a public officer,
but if he states that which is false and aspersive, he is
liable therefor however good his motives may be; and the
same is true whether the party defamed be an officer or a
candidate for an office, elective or appointive.” Newell 533
(footnote omitted).
B
These common-law protections for the “core private
righ[t]” of a person’s “ ‘uninterrupted enjoyment of . . . his
reputation’ ” formed the backdrop against which the First
and Fourteenth Amendments were ratified. Nelson, Ad-
judication in the Political Branches, 107 Colum. L. Rev.
559, 567 (2007) (quoting 1 Blackstone *129). Before our
decision in New York Times, we consistently recognized
that the First Amendment did not displace the common
law of libel. As Justice Story explained,
“The liberty of speech, or of the press, has nothing to
do with this subject. They are not endangered by the
punishment of libellous publications. The liberty of
speech and the liberty of the press do not authorize
malicious and injurious defamation.” Dexter v. Spear,
7 F. Cas. 624 (No. 3,867) (CC RI 1825).
The Court consistently listed libel among the “well-defined
and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any
Constitutional problem.” Chaplinsky v. New Hampshire,
315 U. S. 568, 571–572 (1942); see, e.g., Beauharnais,
supra, at 254–256, and nn. 4–5, 266 (libelous utterances
are “not . . . within the area of constitutionally protected
speech”); Near v. Minnesota ex rel. Olson, 283 U. S. 697,
715 (1931) (“[T]he common law rules that subject the
libeler to responsibility for the public offense, as well as
for the private injury, are not abolished by the protection
10 MCKEE v. COSBY
THOMAS, J., concurring
extended in our constitutions”).
New York Times marked a fundamental change in the
relationship between the First Amendment and state libel
law. Although the Court did not repudiate its earlier
statements that libel is constitutionally unprotected, it
nevertheless was unable to “accept the generality of this
historic view.” Gertz, 418 U. S., at 386 (White, J., dissent-
ing). The Court instead observed that it had never upheld
the use of libel law “to impose sanctions upon expression
critical of the official conduct of public officials.” New York
Times, 376 U. S., at 268. In the Court’s view, it was “writ-
ing upon a clean slate,” id., at 299 (Goldberg, J., concur-
ring in result), and thus free to work a “substantial
abridgement” of the common law of libel based on its
balancing of competing interests, Gertz, supra, at 343
(majority opinion).
C
There are sound reasons to question whether either the
First or Fourteenth Amendment, as originally understood,
encompasses an actual-malice standard for public figures
or otherwise displaces vast swaths of state defamation
law.
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech, or of the
press.” See Schneider v. State (Town of Irvington), 308
U. S. 147, 160 (1939) (applying these protections against
the States through the Fourteenth Amendment).3 Justice
White’s dissenting opinion in Gertz provides a helpful
starting point in interpreting these terms. Justice White
had joined the majority opinion in New York Times. But
after canvassing historical practice under similar state
——————
3 Byits terms, the First Amendment addresses only “law[s]” “ma[d]e”
by “Congress.” For present purposes, I set aside the question whether
the speech and press rights incorporated against the States restrict
common-law rights of action that are not codified by state legislatures.
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THOMAS, J., concurring
constitutions, treatises, scholarly commentary, the ratifi-
cation debates, and our precedent, he concluded that
“[s]cant, if any, evidence exists that the First Amendment
was intended to abolish the common law of libel, at least
to the extent of depriving ordinary citizens of meaningful
redress against their defamers.” Gertz, 418 U. S., at 381;
see id., at 380–388. Justice White later expressed “doubts
about the soundness of the Court’s approach” in New York
Times “and about some of the assumptions underlying it.”
Dun & Bradstreet, 472 U. S., at 767 (concluding that the
Court “struck an improvident balance in the New York
Times case”).
Historical practice further suggests that protections for
free speech and a free press—whether embodied in state
constitutions, the First Amendment, or the Fourteenth
Amendment—did not abrogate the common law of libel.
See generally Chase, Criticism of Public Officers and
Candidates for Office, 23 Am. L. Rev. 346 (1889) (survey-
ing American defamation decisions). Public officers and
public figures continued to be able to bring civil libel suits
for unprivileged statements without showing proof of
actual malice as a condition for liability. See, e.g., Root v.
King, 7 Cow. 613, 628 (N. Y. 1827) (lieutenant governor);
White, 3 How., at 291 (customs collector); Hamilton v. Eno,
81 N. Y. 116, 126 (1880) (assistant health inspector) (cit-
ing Lewis v. Few, 5 Johns. 1 (N. Y. 1809) (Governor));
Royce v. Maloney, 58 Vt. 437, 447–448, 5 A. 395, 400
(1886) (chief judge and chancellor); Wheaton v. Beecher, 66
Mich. 307, 309–310, 33 N. W. 503, 505–506 (1887) (candi-
date for city comptroller); Prosser v. Callis, 117 Ind. 105,
108–109, 19 N. E. 735, 737 (1889) (county auditor). The
States continued to criminalize libel, including of public
figures. E.g., People v. Croswell, 3 Johns. Cas. 337, 377–
378, 393–394 (N. Y. 1804) (opinion of Kent, J.), and id., at
403–404, 410 (opinion of Lewis, J.) (President Jefferson);
Clap, 4 Mass., at 169–170 (auctioneer); see also Common-
12 MCKEE v. COSBY
THOMAS, J., concurring
wealth v. Blanding, 20 Mass. 304, 311–314 (1825) (elabo-
rating on legal standard); Beauharnais, 343 U. S., at 254–
255 (noting that many States in the first decades after the
founding began to allow truth or good motives to serve as
a defense, but “nowhere was there any suggestion that the
crime of libel be abolished”). As of 1952, “every American
jurisdiction . . . punish[ed] libels directed at individuals.”
Id., at 255, and n. 5. And “Congresses, during the period
while [the Fourteenth] Amendment was being considered
or was but freshly adopted, approved Constitutions of
‘Reconstructed’ States that expressly mentioned state libel
laws, and also approved similar Constitutions for States
erected out of the federal domain.” Id., at 293–294, and
nn. 7–8 (Jackson, J., dissenting). Criticism of the public
actions of public figures remained privileged, allowing
latitude for public discourse and disagreement on matters
of public concern.
As against this body of historical evidence, New York
Times pointed only to opposition surrounding the Sedition
Act of 1798, which prohibited “any false, scandalous and
malicious writing” against “the government of the United
States, or either house of the Congress . . . , or the Presi-
dent.” §2, 1 Stat. 596; see New York Times, 376 U. S., at
273–277. Most prominently, the opinion discusses a re-
port written by James Madison in support of the Virginia
Resolutions of 1798, which protested the Act. Id., at 274–
275. The opinion highlights Madison’s view that the press
in every State had “ ‘exerted a freedom in canvassing the
merits and measures of public men, of every description,
which has not been confined to the strict limits of the
common law.’ ” Id., at 275 (quoting 4 Debates on the Fed-
eral Constitution 570 (J. Elliot ed. 1876) (Elliot’s De-
bates)). It also emphasizes Madison’s point that “ ‘[s]ome
degree of abuse is inseparable from the proper use of every
thing; and in no instance is this more true than in that of
the press.’ ” 376 U. S., at 271 (quoting 4 Elliot’s Debates
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THOMAS, J., concurring
571). After discussing other opposition to the Act, the
Court concluded that “the attack upon its validity has
carried the day in the court of history.” 376 U. S., at 276;
see id., at 273–277.
The Court gleaned from this evidence a “broad consen-
sus” that the First Amendment protects “criticism of gov-
ernment and public officials.” Id., at 276. And the Court
further inferred that because the Act allowed truth to be
offered as a defense and applied to defamatory statements,
a libel law prohibiting only false defamation could still fail
First Amendment scrutiny. Id., at 273–274. But constitu-
tional opposition to the Sedition Act—a federal law directly
criminalizing criticism of the Government—does not nec-
essarily support a constitutional actual-malice rule in all
civil libel actions brought by public figures. Madison did
not contend that the Constitution abrogated the common
law applicable to these private actions. Instead, he
seemed to contemplate that “those who administer [the
Federal Government]” retain “a remedy, for their injured
reputations, under the same laws, and in the same tribu-
nals, which protect their lives, their liberties, and their
properties.” 4 Elliot’s Debates 573. Moreover, a central
assumption of Madison’s view was the historical absence
of a national common law “pervading and operating
through” each colony “as one society.” Id., at 561. Yet the
Court elevated just such a rule to constitutional status in
New York Times.
It is certainly true that defamation law did not remain
static after the founding. For example, many States acted
“by judicial decision, statute or constitution” during the
early 19th century to allow truth or good motives to serve
as a defense to a libel prosecution. Beauharnais, supra, at
254–255, and n. 4. Eventually, changing views led to the
“virtual disappearance” of criminal libel prosecutions
involving individuals. Garrison, 379 U. S., at 69. But
these changes appear to have reflected changing policy
14 MCKEE v. COSBY
THOMAS, J., concurring
judgments, not a sense that existing law violated the
original meaning of the First or Fourteenth Amendment.
In short, 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 Four-
teenth Amendment.
III
Like Justice White, I assume that New York Times and
our other constitutional decisions displacing state defama-
tion law have been popular in some circles, “but this is not
the road to salvation for a court of law.” Gertz, 418 U. S.,
at 370 (dissenting opinion). We did not begin meddling in
this area until 1964, nearly 175 years after the First
Amendment was ratified. 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 juris-
prudence in this area.