FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Mark G. Mastroianni, U.S. District Judge
William Salo for appellant.
A. Greenberg, with whom Angela Agrusa and Liner LLP were on
brief, for appellee.
Lynch, Stahl, and Thompson, Circuit Judges.
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.
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
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").
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 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."
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."
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 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.
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 ...