When the United State Supreme Court recently denied certiorari in McKee v Cosby, Justice Clarence Thomas filed a concurrence. He was the only member of the court to write anything beyond the traditional one sentence order.

McKee sued Bill Cosby in federal court for defamation under State law as a result of allegedly defamatory statements about her made in his attorney’s letter to the New York Daily News responding to rape charges she had alleged against Cosby. The U.S. Court of Appeals for the First Circuit, 874 F3d 54 (2017), affirmed dismissal of the complaint under Michigan law and First Amendment principles because McKee had “‘thrust herself to the ‘forefront’ of the public controversy over ‘sexual allegations implicating Cosby’ and was therefore ‘a limited-purpose public figure’“ who had to prove actual malice. She sought review of that classification, and certiorari was denied. Speaking only for himself, Justice Thomas agreed “with the Court’s decision not to take up that factbound question,” but explained “why, in an appropriate case,” the court “should reconsider the precedents that require courts to ask“ that factbound question “in the first place.”

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