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Supreme Court refuses to hear defamation lawsuit against Bill Cosby by one of his accusers

WASHINGTON – The Supreme Court on Tuesday refused to consider a defamation lawsuit against convicted sexual predator Bill Cosby by one of his many accusers.

Associate Justice Clarence Thomas concurred in the decision but argued that the famous media case that established the rules controlling such disputes should be reexamined. 

Kathrine Mae McKee contends that Cosby's attorney at the time, famed Hollywood lawyer Martin Singer, defamed her in a letter and press release in December 2014 after she joined the litany of women recounting alleged instances of rape and assault at the hands of the renowned entertainer once known as "America's Dad."

McKee, a casting director, came forward to say she was raped by Cosby, a friend of eight years, in 1974 in his Detroit hotel room when she arrived to pick him up to take him to a yacht party.

Singer responded by calling her a liar in a letter to the New York Daily News, but two lower federal courts concluded that didn't rise to the level of defamation because McKee had become a "limited purpose public figure."

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Bill Cosby, following his sentencing last September in Pennsylvania

The justices apparently agreed with that assessment by refusing to hear her appeal.

McKee was disappointed she lost her case but still feels "justice has been served" because Cosby was convicted in a Pennsylvania criminal court last year and is now in prison.

"I lost, but personally I don't see it that way because he is paying for his crimes," she told USA TODAY on Tuesday. "The bottom line is Cosby is being held accountable and that was the reason for me coming out in the first place." 

Her lawyer, Dilan Esper of the Los Angeles firm of Charles Harder, said he and the firm were proud to represent McKee, "a sexual assault survivor, in her fight to attain justice from her rapist."

"She is an inspiration to us all, and while she didn't win her case in the Supreme Court, her perseverance eventually helped put her attacker behind bars where he belongs," he said in an email to USA TODAY.

Cosby's spokesman, Andrew Wyatt, emailed a statement to USA TODAY from Cosby dictated to his wife, Camille. He reiterated his reasons for feeling "no remorse" for his crimes, comparing himself to a "political prisoner."

"I thank each of the Justices for their ruling, which gives me renewed hope that the fair and impartial courts in this country will go on to deliver justice," he said in his statement. "This is the very reason why I have no remorse, because I am innocent and will continue to channel the strength of the great political prisoners. Finally the truth is being allowed to be heard and read by the public.” 

Associate Justice Thomas concurred with the court's decision but wrote a 14-page concurrence arguing that the court should review the issue of public versus private figures in defamation and libel cases in the future.

Under the landmark 1964 decision in The New York Times v. Sullivan, the Supreme Court ruled that the First Amendment barred public figures from recovering damages for defamation unless they can prove a statement was made with "actual malice," meaning it was made knowing it was untrue or with reckless disregard for whether it was true.

"Like many plaintiffs subject to this 'almost impossible' standard, McKee was unable to make that showing," Thomas wrote. 

The lower courts concluded McKee was "a limited purpose public figure" because she had made a public accusation against Cosby and talked to reporters about it at a time when more women were coming forward (they eventually totaled more than five dozen women) to accuse Cosby of sexual misconduct in encounters dating back to the mid-1960s.  

Thomas argued the Supreme Court should re-examine the Times v. Sullivan rules because there is "little historical evidence" that those rules flow from the "original understanding" of the First or the 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," Thomas wrote.  

But McKee's lawyer, whose firm has successfully represented first lady Melania Trump in her disputes over her media coverage, and Hulk Hogan in his dispute with Gawker which led to that website's demise, said his briefs in the McKee case never called for "a wholesale rewriting" of First Amendment law.

"We simply argued that Ms. McKee did not give up her right to sue and did not become a public figure by doing nothing more than identifying herself as a sexual assault survivor," he told USA TODAY. "Ms McKee's arguments were completely consistent with the important protections of freedom of the press recognized in Supreme Court decisions."

After two trials, Cosby, 81, was convicted of three counts of aggravated indecent sexual assault in April 2018. He is serving three to 10 years in a Pennsylvania prison for drugging and molesting former Temple University administrator Andrea Constand in 2004 at his home outside Philadelphia.

He is appealing his conviction in the case, the only one to reach a criminal court out of dozens of allegations that were too old to prosecute elsewhere. 

 

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