Kathrine Mae McKee v. William H. Cosby, Jr.

United States Court of Appeals
For the First Circuit
No. 17-1256
KATHRINE MAE MCKEE,
Plaintiff, Appellant,
v.
WILLIAM H. COSBY, JR.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Lynch, Stahl, and Thompson,
Circuit Judges.
F. William Salo for appellant.
Alan A. Greenberg, with whom Angela Agrusa and Liner LLP were
on brief, for appellee.
October 18, 2017

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LYNCH, Circuit Judge. Kathrine McKee sued William H.
Cosby, Jr., whom she had accused in a 2014 interview published in
the New York Daily News of raping her, for defamation after the
content of a purportedly confidential letter penned to the paper
by Cosby's attorney in Cosby's defense was disseminated and
reported on by news outlets and websites worldwide. The district
court granted Cosby's motion to dismiss, primarily on First
Amendment grounds, see McKee v. Cosby, 236 F. Supp. 3d 427 (D.
Mass. 2017), and McKee appealed. We affirm.
I.
We accept as true the well-pleaded factual allegations
from McKee's amended complaint and draw all reasonable inferences
in McKee's favor. See Stanton v. Metro Corp., 438 F.3d 119, 123
(1st Cir. 2006). McKee is a performer and actress who has been
working in the entertainment industry for over fifty years. Cosby
is an internationally renowned celebrity and entertainer. McKee
met Cosby around 1964, while she was a showgirl in Las Vegas. In
1971, McKee appeared as an actress on the "Bill Cosby Show," and
then socialized with Cosby and his wife on several occasions
between 1971 and 1974. In 1974, Cosby invited McKee to meet him
in his hotel room in Detroit, Michigan, before heading out to a
party. Immediately after McKee arrived and entered the hotel
room, Cosby forcibly raped her.

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In December 2014, after more than twenty other women had
publicly accused Cosby of sexual assault, McKee revealed the rape
during an interview with Nancy Dillon, a reporter for the New York
Daily News. On December 22, 2014, the Daily News published an
article describing the rape as McKee had recounted it. Later that
same day, Cosby's attorney, Martin Singer, e-mailed a six-page
letter to the Daily News' New York office, addressing the article
(the "Singer Letter" or "Letter").
The Singer Letter, which bears prominent "Confidential
Legal Notice" and "Publication or Dissemination Is Prohibited"
disclaimers on its front page, admonishes the Daily News for its
decision to publish an article disclosing McKee's rape allegations
against Cosby. The Letter asserts repeatedly that the newspaper
"maintains virtually no journalistic standard[s] or credibility
threshold" for its stories, as illustrated by its willingness to
publish McKee's "never-before-heard tale" while deliberately
ignoring or inexcusably failing to investigate "[a]mple . . .
readily available" "evidence undermining [McKee's] reliability."
Referencing "[e]asily available public information" that "belie[s]
the Daily News' Story" and demonstrates that McKee's rape "story
lacks credibility," the Letter lists, in a string of bullet points,
statements that McKee allegedly made pertaining to her social
relationship with Cosby, as well as her past life as a Las Vegas
showgirl. Each set of attributed statements is accompanied by a

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footnote with a citation to a news article or other source. Then,
asserting that "the Daily News is not alone," the Letter goes on
to more broadly bemoan the "reckless[ness]" of "irresponsible
media" that "blindly ignores the dubious background of sources,"
including inter alia the "[c]riminal backgrounds of various
accusers." In closing, the Letter demands "[p]ublication of a
retraction and correction" of the Daily News' "malicious
defamatory article."
According to McKee, on the same day Singer sent the
Letter to the Daily News, he leaked copies of it to the media.
Within hours, excerpts and quotes appeared in news outlets around
the world and were further reported on by various news
organizations and websites. McKee alleges that the rapid and
widespread dissemination of the statements contained in the Letter
defamed her, causing harm to her reputation nationally within
"days, weeks or even months."
In December 2015, McKee sued Cosby for defamation in
federal court in Massachusetts, invoking diversity jurisdiction.
In July 2016, McKee filed an amended complaint in which she
asserted twenty-four defamation counts pertaining to various
portions of the Singer Letter. Cosby moved to dismiss McKee's
amended complaint for failure to state a claim. In February 2017,
the district court granted Cosby's motion. See McKee, 236 F.
Supp. 3d at 454. The court held that the "gist" of the Letter was

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the author's opinion that McKee lacked credibility and that the
Daily News improperly ignored or failed to investigate publicly
available information undermining her rape allegations. Id. at
439-40. The court deemed non-actionable the opinion as to McKee's
credibility because it was "not capable of being objectively
verified or disproven" and, in any event, the Letter "adequately
disclosed the non-defamatory facts underlying the opinion[]." Id.
at 440. The court then individually addressed each of the
allegedly false and defamatory statements singled out in the
twenty-four counts of McKee's complaint, and found all of them to
be non-actionable under First Amendment principles and/or under
Michigan defamation law. See id. at 444-54. McKee appeals from
entry of judgment against her, arguing that her claims should go
to trial.
II.
We review de novo the district court's grant of a motion
to dismiss a defamation suit. Stanton, 438 F.3d at 123. We
accept as true the complaint's well-pleaded factual allegations,
and draw all reasonable inferences in favor of the non-moving
party. Id. Before turning to the merits, we describe the
applicable law that will guide our analysis, and address lingering
disputes about that law.

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A. Choice of Law
The parties disagree as to which state's defamation law
should apply. McKee advocates for the law of Massachusetts,
asserting that Massachusetts has "the most compelling interest in
this action." Cosby maintains that "either Michigan or Nevada law
applies," emphasizing that although McKee was living in Michigan
at the time the Singer Letter was published and its allegedly
defamatory content disseminated, she later moved to Nevada. The
district court applied Michigan law, and did not err in doing so.
In deciding which state's substantive law applies,
federal courts follow the forum state's choice of law rules. In
re Volkswagen & Audi Warranty Extension Litig., 692 F.3d 4, 14
(1st Cir. 2012). In Massachusetts, courts resolve choice-of-law
questions "'by assessing various choice-influencing
considerations,' including those provided in the Restatement
(Second) of Conflict of Laws (1971)." Cosme v. Whitin Mach. Works,
Inc., 632 N.E.2d 832, 834 (Mass. 1994) (citation omitted) (quoting
Bushkin Assocs. v. Raytheon Co., 473 N.E.2d 662, 668 (Mass. 1985));
see also Bushkin, 473 N.E.2d at 669 (treating the Restatement as
an "obvious source of guidance" for choice of law questions).
When a defamatory statement is published in multiple states, the
Restatement applies the law of the state with the "most significant
relationship to the occurrence and the parties," Restatement
(Second) of Conflict of Laws § 150(1) (1971), which "will usually

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be the state where the [defamed] person was domiciled at the time,
if the matter complained of was published in that state," id.
§ 150(2).
Almost immediately after Singer emailed the Letter to
the Daily News in New York on December 22, 2014, its content was
disseminated and reported on by news outlets nationally and "around
the world," causing, McKee alleges, reputational harm in all fifty
states within "days, weeks, or even months." At that time, McKee's
state of domicile was Michigan. McKee resided in Michigan from
1994 until July 2015. McKee alleges in her brief that she
"incurred damages for personal humiliation, mental anguish and
suffering in Michigan" from December 22, 2014 through July 2015.
To be sure, other states are also implicated in this case in one
way or another: the Letter was initially sent to the Daily News in
New York; McKee permanently moved to Nevada approximately six
months after the Letter was published; and Cosby was domiciled in
Massachusetts when the Letter was written. But we agree with the
district court that the state with the "most significant"
relationship to this suit is that in which McKee resided when the
Letter was published and for decades preceding the alleged
"impairment of [her] reputation and standing in the community,"
Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). Since
Michigan was McKee's longstanding state of domicile when she was

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allegedly defamed, the district court soundly chose to apply
Michigan law.
B. Legal Principles
Under Michigan law, the elements of a defamation claim
are:
(1) a false and defamatory statement
concerning the plaintiff, (2) an unprivileged
communication to a third party, (3) fault
amounting at least to negligence on the part
of the publisher, and (4) either actionability
of the statement irrespective of special harm
(defamation per se) or the existence of
special harm caused by publication.
Mitan v. Campbell, 706 N.W.2d 420, 421 (Mich. 2005) (citations
omitted). A statement is "defamatory" if "it tends to lower an
individual's reputation in the community or deters third persons
from associating or dealing with that individual." Ireland v.
Edwards, 584 N.W.2d 632, 636 (Mich. App. Ct. 1998) (citation
omitted).
Superimposed on any state's defamation law are First
Amendment safeguards. See Pan Am Sys., Inc. v. Atl. Ne. Rails &
Ports, Inc., 804 F.3d 59, 64 (1st Cir. 2015) ("Modern defamation
law is a complex mixture of common-law rules and constitutional
doctrines."). We highlight here the most relevant principles.
First, "defamatory statements are not punishable unless
they are capable of being proved true or false." Pan Am Sys., 804
F.3d at 65. There is no "wholesale defamation exemption for

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anything that might be labeled 'opinion.'" Milkovitch v. Lorain
Journal Co., 497 U.S. 1, 18 (1990); see also id. at 19 (declining
to create an "artificial dichotomy between 'opinion' and fact").
The critical question is whether the challenged statement
"reasonably would be understood to declare or imply provable
assertions of fact." Phantom Touring, Inc. v. Affiliated Publ'ns,
953 F.2d 724, 727 (1st Cir. 1992). A statement, even if
"couch[ed] . . . as an opinion," will give rise to liability if it
"implies the existence of underlying [false and] defamatory facts"
as its basis; conversely, a statement is "immunize[d]" so long as
the speaker discloses all of the facts undergirding it and none of
them are both false and defamatory. Piccone v. Bartels, 785 F.3d
766, 771 (1st Cir. 2015). In other words, when the speaker
"outlines the facts available to him, thus making it clear that
the challenged statements represent his own interpretation of
those facts and leaving the reader free to draw his own
conclusions, those statements are generally protected by the First
Amendment." Riley v. Harr, 292 F.3d 282, 289 (1st Cir. 2002)
(quoting Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir.
1995)). "[E]ven a provably false statement is not actionable if
'it is plain that the speaker is expressing a subjective view . . .
rather than claiming to be in possession of objectively verifiable
facts.'" Id. (quoting Gray v. St. Martin's Press, Inc., 221 F.3d
243, 248 (1st Cir. 2000)).

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Second, if the plaintiff is either a public official or
a public figure, he or she may not recover damages for a defamatory
statement unless he or she can prove 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."
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Public-
figure status can arise in one of two ways. An individual becomes
a "general-purpose" public figure if he "achieve[s] such pervasive
fame or notoriety that he becomes a public figure for all purposes
and in all contexts." Gertz, 418 U.S. at 351; Lluberes v. Uncommon
Prods., LLC, 663 F.3d 6, 13 (1st Cir. 2011). Alternatively, an
individual becomes a "limited-purpose" public figure if he
"voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range
of issues," the scope of which is determined by the "nature and
extent of [his] participation in the particular controversy giving
rise to the defamation." Gertz, 418 U.S. at 351-52; Lluberes, 663
F.3d at 13. Either way, a public-figure plaintiff bears the
"heavy, and often insurmountable" burden of proving that the
defendant acted with "actual malice." Lluberes, 663 F.3d at 14.
McKee argues that the district court erred when it found
her to be a limited-purpose public figure with respect to "the
public controversy over [Cosby's] alleged sexual assault of

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[McKee] and others." McKee, 236 F. Supp. 3d at 453 n.25. There
was no error.
The critical questions for limited-purpose public figure
status are whether a matter of "public controversy" existed prior
to the alleged defamation, and whether the defamed individual
deliberately "thrust [herself] into the vortex" of that
controversy or otherwise "engage[d] the public's attention in an
attempt to influence its outcome." Gertz, 418 U.S. at 351-52; see
also Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.3d 583,
590-91 (1st Cir. 1980). While ascertaining public-figure status
may in some cases require a "detailed fact-sensitive
determination," Penobscot Indian Nation v. Key Bank, 112 F.3d 538,
561 (1st Cir. 1997), the matter is resolved as a question of law,
Pendleton v. City of Haverhill, 156 F.3d 57, 68 (1st Cir. 1998),
and when possible, it is "perfectly reasonable to . . . decide
whether a plaintiff is a . . . public figure during pretrial
proceedings." Mandel v. Bos. Phx., Inc., 456 F.3d 198, 204 (1st
Cir. 2006).
In our case, the web of sexual assault allegations
implicating Cosby, an internationally renowned comedian commonly
referred to as "America's Dad," constitutes a public controversy.
McKee portrays her dispute with Cosby as a self-contained, private
dispute -- "purely a matter of private concern" -- and argues that
"Cosby's alleged criminal behavior has not become a matter of

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'public controversy.'" Cf. Time, Inc. v. Firestone, 424 U.S. 448,
454 (1976) (finding private high-society divorce proceeding was
not a "public controversy" despite being a "cause célèbre" in the
media). However, the context in which McKee decided to reveal her
rape to the press in December 2014, following decades of silence,
belies this narrative: McKee came forward after more than twenty
other women had levelled highly publicized sexual assault
accusations against Cosby, who in response allegedly hired a team
of lawyers and investigators "to discredit them, to intimidate
them, and to intimidate any future would-be accusers."
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." Gertz, 418 U.S. at 345; see also
Street v. Nat'l Broad. Co., 645 F.2d 1227, 1235 (6th Cir. 1981),
cert. granted, 454 U.S. 815 (1981), and cert. dismissed, 454 U.S.
1095 (1981) (sexual assault plaintiff who "gave press interviews
and aggressively promoted her version of the case outside of her
actual courtroom testimony" was a public figure because she "had
effective access to the media and encouraged public interest in
herself"). McKee points out that "[a] private individual is not
automatically transformed into a public figure just by becoming
involved in or associated with a matter that attracts public
attention." Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 167

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(1979). But in stark contrast to the plaintiff in Wolston, who
was "dragged unwillingly into the controversy," id. at 166, and
"never discussed th[e] matter with the press," id. at 167, McKee
deliberately came forward and accused Cosby of rape in an interview
with a reporter, thereby engaging the public's attention and
"invit[ing] public scrutiny" of the credibility of her
allegations. Pendleton, 156 F.3d at 69. In other words, McKee
took concerted steps meant to influence the public's perception of
whether Cosby was, in fact, a sexual predator. For these reasons,
we hold as a matter of law that McKee is a limited-purpose public
figure. As a result, to the extent any statements made in the
Singer Letter meet the tests for falsity and for defamation, McKee
bears the burden of plausibly alleging that Cosby made such
statements with either "knowledge" that they were false or
"reckless disregard" for their truth or falsity. Sullivan, 376
U.S. at 279-80.
C. Analysis
We apply the above rules to the pleading here. We focus
first on the message of the Singer Letter as a whole, before
considering individual statements McKee has challenged. From
McKee's perspective, Singer, acting on Cosby's behalf, crafted the
Letter to "communicate to the world the defamatory message that
Ms. McKee is a liar with regard to the Cosby rape allegation"; the
Letter's "sting" is that "McKee's rape allegation is false."

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According to Cosby, the Letter focused instead "on the conduct of
the Daily News, not McKee," and was meant to "criticize[] the media
generally and the Daily News specifically" for their low
journalistic standards and failure to properly vet their sources.
It is fair to say the Letter does both. It "raises doubts as to
[McKee's] credibility and castigates the Daily News" for failing
to acknowledge readily available evidence that undermined McKee's
reliability. McKee, 236 F. Supp. 3d at 443.
It is manifest from the face of the Singer Letter that
its purpose is to undermine McKee's credibility, not merely to
lambast the Daily News. The Letter is replete with assertions and
innuendo leading to the conclusion that McKee is not credible: "To
say that Ms. McKee is not a reliable source is a gross
understatement"; "The glaring inconsistently [sic] . . . was alone
a basis to question [McKee's] veracity and render her an unreliable
source"; "Ms. McKee has admitted, 'I had to do a lot of lying.'"
General statements about a person's credibility may well be a
matter of opinion that is not capable of being "objectively
verified or disproven." McKee, 236 F. Supp. 3d at 440. Assessing
credibility requires "a quintessential 'expression[] of personal
judgment'" that is "subjective in character." Piccone, 785 F.3d
at 772 (quoting Gray v. St. Martin's Press, Inc., 221 F.3d 243,
248 (1st Cir. 2000)).

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With that being said, the Singer Letter does more than
merely attack McKee's credibility generally. The Letter implies
that McKee's allegations of rape are not credible. Referring to
the Daily News article containing "McKee's . . . allegations . . .
accusing [Cosby] of rape," the Letter asserts that McKee's "story
lacks credibility," that her "never-before-heard tale . . . is
completely contradicted by her own prior published statements,"
and that "[a]mple published information . . . completely
undermines [her] story." In addition, the bulk of the factual
information and quotations highlighted in the Letter relate to the
nature of McKee's relationship with Cosby and the plausibility of
the rape allegation, rather than McKee's alleged general
propensity to lie. All in all, the Letter says not only that
McKee lacks credibility, but also that her rape "tale" is not
credible.
Nevertheless, even if we treat the Singer Letter as
asserting both that McKee lacks credibility and that McKee's rape
allegations are not truthful, Singer adequately disclosed the non-
defamatory facts underlying these assertions, thereby immunizing
them from defamation liability. See McKee, 236 F. Supp. 3d at
440; see also Hill, 665 F. App'x at 175 ("[E]ven if Singer's
Statement does imply Ms. Hill is a liar, it is still not actionable
because it includes the facts supporting that implication."
(alteration in original)). The Letter is "heavily footnoted with

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citations to articles and other sources," "detail[ing] extensive
underlying facts" as support for the author's assertions as to
McKee's lack of credibility. McKee, 236 F. Supp. 3d at 440, 442.
Whether we deem these underlying facts to be probative is
immaterial, so long as the facts presented for the readers'
consideration are not both false and defamatory. See Yohe v.
Nugent, 321 F.3d 35, 42 (1st Cir. 2003).
McKee posits that a reader would infer that Singer was
basing his assertions about McKee's credibility on knowledge of
undisclosed facts. Nothing in the Singer Letter warrants such an
inference. To the contrary, the Letter details upfront, in
multiple bullet points footnoted with citations and hyperlinks to
the underlying sources, the "published information" that,
according to the view expressed in the Letter, undermines the
credibility of McKee's allegations. As the Letter is "based on
facts accessible to everyone," a reasonable reader would not
understand Singer "to be suggesting that he was singularly capable
of evaluating" McKee's credibility based on undisclosed evidence.
Phantom Touring, 953 F.2d at 730-31. Rather, the reader can "draw
[his] own conclusions" from the information provided. Id. at 731.
McKee argues that the Letter should have provided a more "balanced
two-sided story," as the defendant had arguably done in Phantom
Touring, but there is no such requirement in the law.

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We turn to McKee's individual counts of defamation. The
bulk of the statements McKee challenges as defamatory declare that
McKee generally, and her rape allegations in particular, lack
credibility. Our analysis thus far forecloses these claims.
However, McKee also makes a different claim -- that the
Singer Letter attributes statements to her that she says she did
not make and that portray her in a bad light. In a few instances,
McKee claims that the Letter deliberately misquotes or
misconstrues her, with defamatory effect. Most serious is her
argument that the Letter asserts that "Ms. McKee has admitted, 'I
had to do a lot of lying' and 'lies landed her a job' as a Vegas
showgirl," citing an article published by C&G Newspapers in 2010.
McKee denies she ever made the statement attributed to her and
alleges that the Letter quotes the C&G article "out of context" in
order to falsely portray McKee as a "liar for pecuniary gain."
She emphasizes that the C&G article was actually "referring to the
fact that she was forced to conceal her mixed-race parentage in
order to 'pass' for white in order to be a showgirl in the racist
and segregationist atmosphere of 1960's Las Vegas." Singer
admittedly does not include this important contextual information
in the Letter itself, but the quotations, themselves accurate, are
immediately followed by a hyperlink to the source article, allowing
readers to put McKee's statements into proper context. On these

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facts, we cannot conclude that Singer knowingly or recklessly
published a falsehood.
In other instances, McKee claims that the Singer Letter
mischaracterizes actions she took or statements she made, but does
not contend that she never took the actions or made the statements.
For example, she challenges the statement that she "liked" one of
Cosby's comedy videos online and "posted a fond message" without
denying that she actually "liked" the video or posted the message.
Singer's "subjective characterizations" of otherwise accurately
reported actions or statements are not capable of being proven
true or false. McKee, 236 F. Supp. 3d at 447, 453.
In yet other instances, McKee claims that the Singer
Letter misleadingly uses statements to imply that she was an
unchaste woman. For example, the Letter quotes McKee as having
said that "it was very common to be in and out of affairs," and
her sister as having said that McKee was "always wild" and "always
doing inappropriate things." The Letter provides links to the
articles from which these quotes are drawn, enabling readers to
examine the sources for themselves and consider the comments in
context. These statements are not actionable.
Lastly, McKee claims that the Singer Letter deliberately
(and falsely) implies that she has a criminal record. After
detailing evidence "ignored" by the Daily News allegedly
demonstrating that McKee's allegations are not credible, the

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Letter states that "the Daily News is not alone" in its failure to
apply "credibility threshold[s]." The Letter goes on to bemoan
how "[t]he media has consistently refused to look into or publish
information about various women whose stories are contradicted by
their own conduct or statements," and has thereby "routinely
ignored relevant information including: . . . [c]riminal
backgrounds of various accusers, . . . [i]nformation from third
party sources disputing the credibility of sources . . . [and]
[i]ndependent evidence proving accusations impossible." The
Letter adds that "the media's approach is to publish virtually any
tale 'no questions asked' told by anyone willing to vouch for it,
without questioning their motivations, their pasts, or even the
criminal records of some accusers."
It is clear from the language and context of these
statements that they are not about McKee. Rather than
specifically criticize the Daily News for its publication of
McKee's story, they express generalized grievances about the media
as a whole for publishing allegations by other women against Cosby.
The Singer Letter refers to "various women" whose accusations are
contradicted by various types of information, and mentions that a
subset of those women -- "some accusers" -- have criminal records.
It neither states nor implies that McKee herself has a criminal
record. Because the challenged statements do not "concern" McKee,
they are not actionable. See Curtis v. Evening News Ass'n, 352

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N.W.2d 355, 356 (Mich. Ct. App. 1984) (to succeed on claim for
defamation, plaintiff must prove statement is "concerning" him).
III.
For the foregoing reasons, we affirm the district
court's order dismissing all counts of McKee's amended complaint.

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