Written by David Karl Gross

Several months ago, I wrote an article providing guidance to bloggers about the dangers of being sued for defamation.  I explained that defamation is an important legal remedy because it provides people with significant recourse when the words of another have caused harm to their careers, reputations or finances.  I pointed out, however, that it was very difficult to win a defamation lawsuit against a blogger who makes statements about a public figure due to the United State Supreme Court’s decision in New York Times v. Sullivan, 376 U.S. 254 (1964).  The court in that decision held that for a public figure to prevail in a defamation lawsuit, they must prove actual malice, meaning that the blogger either knew the statement was false or acted with reckless disregard for the truth.  With that, the chances that a blogger would be held liable for defamation due to comments directed toward a public figure are remote, which gives bloggers wide latitude to write what they want.

This concept was reaffirmed in a recent decision from the First Circuit.  The factual background of that case was as follows:  Katherine McKee (“McKee”) accused comedian Bill Cosby (“Cosby”) of forcibly raping her in 1974.  She did not immediately report the attack for fear that Cosby would retaliate by ruining her career.  However, in 2014, when more than 20 other women had accused Cosby of sexual misconduct, McKee gave an interview with the New York Daily News discussing the attack.  When the interview was published, a lawyer for Cosby sent the Daily News a letter stating that the claim of rape was not supported because of prior statements McKee had made about her relationship with Cosby.  Quotes from the lawyer’s letter were published by other media outlets.

In response to the publication of the lawyer’s letter, McKee filed a lawsuit against Cosby for defamation, asserting that the statements made by the lawyer were defamatory.  However, the Federal District Court dismissed the case, largely on the grounds that McKee was a public figure and pursuant to the United States Supreme Court’s decision in New York Times v. Sullivan, there would have to be a showing of actual malice, which the court found did not exist.  The decision was appealed to the Court of Appeals for the First Circuit, which affirmed the lower court’s decision.  The case was then appealed to the United States Supreme Court.

The United States Supreme Court declined to hear the petition for writ of certiorari, which means that the Circuit Court’s decision was affirmed, but Justice Clarence Thomas took the opportunity to express the opinion that it is time to take a closer look at the legal conclusions made in New York Times v. Sullivan.  Justice Thomas stated that the Court’s decision in New York Times v. Sullivan, and the cases that were decided thereafter, amounted to “policy-driven decisions masquerading as constitutional law.”  In explaining what he meant by this, Justice Thomas traced the history of the common law in relation to the tort of defamation.  He demonstrated that pursuant to the common law in order to win a claim of defamation “a defamed individual need only prove ‘a false written publication that subjected him to hatred, contempt, or ridicule.’” Justice Thomas went on to point out that it was actually easier to win a defamation case at common law if the defamatory remarks were directed toward a public figure because the law was designed to protect the “best citizens” from these types of attacks.  In the end, Justice Thomas opined that each state should be in charge of defining the scope of the law of defamation and that the common law of defamation should not be “constitutionalized” by using the First Amendment law as a means to determine if a statement was, in fact, defamatory.

At the end of the day, Justice Thomas’ concurring opinion has no precedential value and New York Times v. Sullivan remains the law of the land.  What it does suggest, however, is that jurists, including judges at the highest level, are open to the idea of reinstating the common law of defamation.  If this were to happen, there would be a herculean shift, such that public figures would be able to file lawsuits each time someone published a defamatory statement about them.  This would subject bloggers, as well as the media at large, to lawsuits each time it published something that was false.  The impact of such a change could have an even greater impact if people could be held liable for defamatory statements made on social media platforms, such as Facebook, Twitter and Instagram.

This may promote accountability for what people write.  However, on the other hand, it could have a chilling effect on providing the public with important information.  And again, while it has no precedential impact, Justice Thomas’ comments will certainly have a ripple effect in the lower courts.  Close attention will have to be paid to defamation court cases in the years to come.  Those courts addressing this issue will have to determine whether to strengthen or weaken our First Amendment protections.