As Cosby Defamation Cases Reach SCOTUS, Possible Fresh Look at Lawyers’ Free Speech Rights
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Comedian Bill Cosby and spokesman Andrew Wyatt arrive for the second day of Cosby's sexual assault retrial at the Montgomery County Courthouse in Norristown, Pennsylvania, April 10, 2018. Photo: Michael Candelori/Shutterstock.com.[/caption] Lawsuits involving disgraced comedian Bill Cosby and the statements his lawyers made in his defense are now before the U.S. Supreme Court, raising significant issues about lawyers’ free speech rights as well as defamation and libel law. Two cert petitions are pending review from the high court:
Cosby v. Dickinson, challenging a California Court of Appeal decision that said a defamation lawsuit brought by Janice Dickinson, one of Cosby’s alleged rape victims, against onetime Cosby lawyer Martin Singer of Lavely & Singer, could go forward in spite of precedents that protect the speech of lawyers who speak out on behalf of their clients. The petition was filed last week.
McKee v. Cosby, asking whether Kathrine McKee, another alleged Cosby victim who sued Singer for defamation, can be categorized as a public figure who cannot recover damages for defamation. The petition was filed in April.
The court is expected to consider both cases in late September or thereafter to decide if they should be granted review. The cases are drawing interest, in part because the justices have not recently taken up disputes over libel and defamation, a part of First Amendment doctrine that is well-settled. "It's been a very, very long time—more than a quarter-century—since the Supreme Court ruled squarely in a libel case, dating back to the fabricated quote case of Masson v. New Yorker Magazine in 1991," said Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. "The #MeToo movement makes this even more relevant, with reputation-harming allegations being leveled against individuals at a constant clip.” The Dickinson case is of special interest to lawyers. Sarah Kelly-Kilgore of Greenberg Gross, counsel of record for Cosby, invoked the 1991 Supreme Court case Gentile v. State Bar of Nevada, in which Justice Anthony Kennedy wrote a lawyer “may take reasonable steps to defend a client’s reputation … including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.” The California court ignored that principle in its decision, Kelly-Kilgore wrote, and “will improperly chill attorneys’ speech and prevent any person—the innocent along with the guilty—from relying upon his or her attorney to respond to public accusations of misconduct.” In similar cases, including McKee’s, Kelly-Kilgore pointed out that the U.S. Courts of Appeals for the First and Third circuits ruled that Singer’s statements were constitutionally protected. In 2014, Dickinson accused Cosby of raping her, and Singer quickly issued a statement denying the accusation and pointing out previous contradictory statements she had made. In the other Cosby-related case, McKee’s counsel of record, F. William Salo of New York, said his client, while confirming in 2014 that Cosby had assaulted her, “has not become a prominent advocate in any public controversy, and has not publicly called for any change in the laws, or any social reforms, and has consistently maintained her privacy.” As such, Salo said McKee should be able to recover damages, but the First Circuit ruled that by thrusting herself into the forefront of the Cosby controversy, she was at least a limited-purpose public figure. Under the 1974 Gertz v. Welch Supreme Court decision, public figures are given less protection against defamation than ordinary private citizens. “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,” Salo wrote. “McKee should not be victimized twice over.”
