Kathrine McKee, the actress who accused Bill Cosby of rape in a 2014 article in the New York Daily News, has petitioned the U.S. Supreme Court to review her defamation case against Cosby. Her lawyers filed the writ of certiorari yesterday.
The petition (read it here) comes in the face of the current #MeToo movement and would bring it to the nation’s highest court, with McKee’s lawyers positing the question of whether victims of sexual misconduct have a fundamental right to speak out in public without fear of having reputations and careers destroyed.
“Whether a victim of sexual misconduct who merely publicly states that she was victimized (i.e., “#metoo”), has thrust herself to the forefront of a public debate in an attempt to influence the outcome, thereby becoming a limited purpose public figure who loses her right to recover for defamation absent a showing of actual malice by clear and convincing evidence,” reads the official question presented before the High Court.
McKee filed her original lawsuit after she told the Daily News that Cosby raped her in a Detroit hotel room in 1974. Soon after the story was published in December 2014, Cosby’s then-lawyer Marty Singer wrote a letter to the paper that later went public in which McKee claims Singer made provably false statements about her, and stated or implied by innuendo that she was a liar. McKee filed suit claiming the letter was the false and defamatory.
She sued in Massachusetts federal court in December 2015, with the judge ruling to dismiss the case holding that the letter was essentially the author’s opinion that McKee lacked credibility, that the Daily News improperly ignored or failed to investigate information undermining McKee’s allegations, and that McKee was considered a “limited-purpose public figure” because she told her story to the paper. The 1st Circuit Court of Appeals upheld the ruling.
“The court of appeals’ determination conflicts with several cases from sister courts of appeals, which hold that similarly minimal public statements do not constitute the sort of purposeful injection into a public debate that is required under this Court’s caselaw to confer limited purpose public figure status,” reads the SCOTUS petition.
“This Court, at this historical moment, should grant McKee a writ of certiorari to clarify what criteria should be used to determine limited purpose public figure status in a case of a public accusation of sexual misconduct. And moreover, this Court should confirm that the act of publicly identifying oneself as a crime victim, and merely that act alone, is not equivalent to injecting oneself into the vortex of a public debate. A person who decries sexual misconduct should not be stripped of the protections of private figure status, such that she has virtually no recourse to protect her reputation through a defamation lawsuit. McKee should not be victimized twice over.”
McKee is represented by F. William Salo in New York and Charles Harder and Dilan Esper of Harder LLP in Los Angeles.