Thread by @jasonmshepard

Thread: This morning, Justice Clarence Thomas took one big step forward in advancing President Trump’s agenda to “open up” libel laws and chip away at a core tenet of American press freedom by saying “we should reconsider our jurisprudence” in the area of libel law.

2/Justice Thomas’s sweeping 14-page concurrence came in an appeal by #metoo victim Kathrine McKee, who alleged she was raped by Bill Cosby in 2014. Cosby is now in prison, having been accused of drugging and/or sexually assaulting at least 60 women. 1drv.ms/b/s!Ar1BNdx2VI…

3/When McKee came forward in 2014, Cosby’s lawyers called her a liar in NY Daily News. McKee sued for defamation, saying it was intended to “damage her reputation for truthfulness and honesty, and further to embarrass, harass, humiliate, intimidate, and shame” her.

4/ EXCLUSIVE: Bill Cosby accused of raping ex-girlfriend of Sammy Davis Jr. nydailynews.com/news/national/…

5/A district court judge dismissed McKee’s libel case, saying Cosby’s denials were protected opinion and that “the statements are protected by the First Amendment and are not actionable.”
scholar.google.com/scholar_case?c…

6/The First Circuit Court of Appeals upheld the dismissal, also deciding that McKee would have to establish “actual malice” by Cosby and his lawyers because she was a limited-purpose public figure

7: 1st Circuit: “By purposefully disclosing to the public her own rape accusation against Cosby via an interview with a reporter, McKee "thrust" herself to the "forefront" of this controversy, seeking to "influence its outcome." scholar.google.com/scholar_case?c…

8/Today, SCOTUS declined to hear McKee’s appeal, so the decision of the First Circuit stands. hollywoodreporter.com/thr-esq/suprem…

9/But Thomas’s concurring statement is a significant piece of news. He put forth a full-throttled argument that “We should reconsider our jurisprudence in this area” that will embolden conservative legal activists.

10/Modern libel law based on SCOTUS precedents says public figures must prove that someone who defamed them acted with “actual malice” in order to recover damages. SCOTUS says without this, free speech would be chilled.

11/President Donald Trump has long said he wants to make it easier for people to win libel lawsuits against the press. I wrote about this here: medium.com/@jasonmshepard…

12/Campaigning for president at a rally in Texas in 2016, Trump said: “We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before." medium.com/@jasonmshepard…

13/Justice Thomas wrote today that NYT v. Sullivan “and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law."

14/Justice Thomas advanced originalist arguments to conclude: “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.”