This post was written by Associate Editor, Kati Massey. The views and opinions expressed herein are those of the author alone.
Often, only recent cases for which the Supreme Court grants certiorari receive much attention and analysis from the public. But sometimes, cases which are denied certiorari actually bring to light important Supreme Court cases from the past and demand another look at precedent. This is especially so when such instances provide unique insight necessary to understand the current status and potential outcomes for one of our most treasured freedoms: speech. After all, it is necessary to truly understand our past before we can successfully look to the future.
The Supreme Court recently denied certiorari in McKee v. Cosby. This case was brought by Katherine McKee, an actress who sued Bill Cosby for damaging her reputation after one of Cosby’s lawyers allegedly leaked a letter that attacked McKee. The lower courts ruled against McKee and dismissed the case. These courts based their decisions on McKee’s role as a public figure and cited New York Times v. Sullivan.
When McKee’s attorneys petitioned the Court for certiorari, most of the justices agreed that the law surrounding such cases was sufficiently established and therefore not worthy of one of the few spots available for new cases. Justice Clarence Thomas, however, disagreed to an extent; he believes Sullivan was wrongly decided and should be overturned. Before the implications of such a philosophy become apparent, it is necessary to look back to Sullivan and the precedent that this case set.
The year was 1964. Sullivan, a public official serving as an elected Commissioner in Alabama, brought suit against the New York Times for criticizing his official conduct as supervisor of the Police Department in an advertisement in its daily newspaper. The backdrop of this case, and the relevant advertisement, were cloaked in Civil Rights advocacy. The ad’s pertinent portions reading:
In Montgomery, Alabama, after students sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.
Although the statement did not mention Sullivan by name, he contended that the word “police” referred to him because of his role as the supervisor of the Police Department. The lower courts found for Sullivan, upholding the notion that the actions of the New York Times were “libelous per se” because some of the statements involved were false (e.g., protestors sang the National Anthem, not My Country, Tis of Thee). Once the case made it up to the Supreme Court, however, the decision was reversed and the “actual malice” requirement for libel cases was born.
The Supreme Court decided that “the constitutional guarantees require…a federal rule that prohibits a public official from recovering 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.” This decision made it more difficult for public officials to win libel cases against the press for criticizing their official conduct in an attempt to safeguard the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
If the Supreme Court does grant certiorari for the next libel case that comes its way, and follows Justice Thomas’s opinion to overturn Sullivan, will the press’s uninhibited ability to include sharp attacks on government and public officials become more akin to the “press” of Orwell’s 1984? Will the threat of constant libel suits lead to a watered-down, government-approved-only press? In Orwell’s dystopian novel, a totalitarian government of the future forbids the press, and individuals, from speaking out against the government, creating a society in which individual thought and “sharp attacks” on government officials—like those the Supreme Court sought to protect in Sullivan—are crimes punishable by jail-time, torture, or death. Sometimes all three. The prohibition of such acts becomes so pervasive that simply thinking about “the Party” negatively is punishable.
The potential here draws forth questions. For example, will the new standard become, “If you hurt the President’s feelings, there will be retribution,” as suggested in President Trump’s recent national address (read: tweet-fest)? After a Saturday Night Live skit parodied President Trump’s National Emergency Address, Mr. Trump set to Twitter, questioning the legality of such “character assassination” colluded by the “fake news” outlet, NBC. Suggesting there should be legal implications for individuals speak out against the President. This is not the first public figure who has been targeted by writers at SNL headquarters, nor is SNL the first satirical show that exaggerates characteristics and personifies public figures. Sullivan protects such parody troupes from constant libel suits brought by the officials involved, but with Justice Thomas’s eyes set on overruling Sullivan, and with President Trump’s recent attacks on the press, the future of Sullivan and what its protections mean for journalists and comedy writers alike should be closely monitored.
 McKee v. Cosby, 2019 U.S. LEXIS 827
 Mark Sherman, Justice Thomas calls for re-examining landmark libel case, Associated Press (February 19, 2019), https://www.apnews.com/c3ec009d59974c9dad6ba367f58966b5.
 McKee v. Cosby, 874F.3d 54, 63-65 (1st Cir. 2017)
 Id. at 65.
 Sherman, supra note 2.
 New York Times v. Sullivan, 376 U.S. 254 (1964)
 Id.at 256.
 Id. at 257.
 Id. at 258.
 Id. at 263.
 Sherman, supra note 2.
 See New York Times v. Sullivan, 376 U.S. 254
 Id. at 271.
 See George Orwell, 1984, Secker & Warburg (1949).
 Alex Horton, Trump said he found ‘real Collusion’ – on SNL, Washington Post (February 17, 2019), https://www.washingtonpost.com/arts-entertainment/2019/02/17/trump-said-he-found-real-collusion-snl/?noredirect=on&utm_term=.65cf03a38f51.
 Steve Hendrix, SNL has skewered every president since Ford. All of them reacted the same way – until now., Washington Post (December 18, 2018), https://www.washingtonpost.com/history/2018/10/14/snl-has-skewered-every-president-since-ford-all-them-reacted-same-way-until-now/?utm_term=.42547f5f344b.