Moore v. Cecil et al
MEMORANDUM OPINION. Signed by Judge Corey L. Maze on 3/31/2021. (SRD)
2021 Mar-31 AM 09:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
ROY S. MOORE,
Case No. 4:19-cv-1855
GUY CECIL, et al.
The court dismissed some of the claims in Moore’s original complaint without
prejudice to give Moore the opportunity to correct any deficiencies (docs. 45, 46).
Moore has since amended his complaint (doc. 47); Defendants have moved to
dismiss the amended complaint (doc 52), and the court rules on their motion here.
This opinion should be read as a continuation of the court’s opinion about the
original complaint (doc. 45), which the court calls “Part I” from now on. For the
reasons stated below, Part II ends with the same result: The court GRANTS in part
and DENIES in part Defendants’ motion to dismiss (doc. 52).
Moore bases his amended complaint on the same essential facts as his original
complaint, so the court needn’t repeat its statement of facts and standard of review.
That allows the court to jump straight into the counts.
COUNTS I-II: Defamation & Defamation by Implication
In Count I, Moore asserts that the shopping mall ad, the digital ad, and a series
of statements by Guy Cecil defamed him. Doc. 47 ¶¶ 73-82. In Count II, Moore
asserts that the two ads also defamed him by implication. Doc. 47 ¶¶ 83-85. But
Moore has not cited Alabama caselaw that says “defamation” and “defamation by
implication” are distinct torts. Nor has the court found any. The Alabama Supreme
Court has said that a defamation claim can be proved by various means, such as the
use of “defamatory implication,” “defamatory innuendo,” and (as discussed in Part
I) the unfair juxtaposition of words. Finebaum v. Coulter, 854 So.2d 1120, 1124-25
(Ala. 2003). That’s likely why the Alabama Pattern Jury Instructions contain an
instruction for “defamation,” but not one for “defamation by implication.” Alabama
Pattern Jury Instructions—Civil 23.01 (3rd ed. 2020). So the court addresses Counts
I and II together, as though both counts raise the same defamation claim.
But before the court dives into the allegedly defamatory statements, the court
addresses Moore’s new arguments about actual malice.
A. Moore’s New Arguments about Actual Malice
1. Constitutionality (¶15, n.1): The Supreme Court announced that public
figures must prove “actual malice” in New York Times v. Sullivan, 376 U.S. 254
(1964). Moore challenges the constitutionality of the New York Times actual malice
requirement, citing Justice Thomas’s recent statement that “[t]here are sound reasons
to question whether either the First or Fourteenth Amendment, as originally
understood, encompasses an actual-malice standard for public figures or otherwise
displaces vast swaths of state defamation law.” McKee v. Cosby, 139 S. Ct. 675,
680-82 (2019) (Thomas, J. concurring in cert denial).
Of course, district courts must follow Supreme Court precedent, so this court
must apply the New York Times actual malice standard. But Moore has reserved this
argument should he wish to argue it to higher courts.
2. Ill-will as Evidence (¶ 74): The court explained in Part I that, to prove
actual malice, Moore must prove that Defendants made the defamatory statement
“with knowledge that it was false or with reckless disregard of whether it was false
or not.” New York Times, 376 U.S. at 279-80. “[I]ll-will, improper motive, or
personal animosity plays no role in determining whether a defendant acted with
actual malice.” Dunn v. Airline Pilots Ass’n, 193 F.3d 1185, 1998 (11th Cir. 1999).
As this court put it, “it is not enough to show that a defendant is the type of
person who would lie about the plaintiff or that he has motive to lie about the
plaintiff. The question is whether the defendant actually lied about the plaintiff or
acted with a reckless disregard for the truth.” Part I at 28.
Moore disagrees. He contends that pleading ill will or animosity is enough
because, “under Alabama law, actual malice can be demonstrated by circumstantial
evidence and ‘by evidence of previous ill will, hostility, threats, rivalry, other
actions, former libels or slanders, and the like, emanating from the defendant[.]”
Doc. 56 at 3-4, 7-8, 12-13, quoting Brackin v. Timmer, 897 So. 2d 207, 224 (Ala.
2004) (quoting Kenny v. Gurley, 95 So. 2d 34, 37 (Ala. 1923)).
But Moore is quoting a state court case that involved a private figure seeking
to overcome a claim of conditional privilege. Alabama courts apply the New York
Times “constitutional malice” standard to public figures and public officials:
‘Common-law malice’ and ‘constitutional malice’ constitute two
distinct species of malice, and proof of constitutional malice is not
made merely by proof of common-law malice. Constitutional malice
must be shown by clear and convincing evidence. While constitutional
malice “focuses on the defendant’s attitude toward the truth or falsity
of his published material,” common-law malice focuses generally “on
the defendant’s attitude toward the plaintiff.
The similarity in terminology is deceptively superficial. For these
reasons, the two definitions have ‘caused a considerable amount of
confusion and ambiguity in interpretation and application of the two
different standards of malice.’
Wiggins v. Mallard, 905 So. 2d 776, 786 (Ala. 2004) (citations omitted). Moore
seizes on this “confusion and ambiguity” to argue that public figures can avoid the
New York Times actual malice standard. 1 But this court is not fooled. Alabama courts
correctly apply New York Times in public figure cases, as shown by the Pattern Jury
Instruction for defamation cases involving a “Public Official / Public Figure”:
The United States Supreme Court similarly rues the confusion: “The phrase ‘actual malice’ is unfortunately
confusing in that it has nothing to do with bad motive or will.” Harte-Hanks, 491 U.S. at 666, n.7.
[Plaintiff] must prove by clear and convincing evidence that when
[Defendant] published the statement, [he] knew the statement was false
or [he] published it with reckless disregard to whether it was false or not.
Alabama Pattern Jury Instructions—Civil 23.03 (3rd ed. 2020); see also Finebaum,
854 So.2d at 1124-25 (stating that public officials and public figures must prove
knowledge of falsity or reckless disregard for the truth). 2
Moore admits that he is a public figure (doc. 56 at 3), so he must plead facts
that would prove falsity or reckless disregard, not just ill will or animosity. See
Harte-Hanks Comm., Inc. v. Connaughton, 491 U.S. 657, 666 (1989) (“the actual
malice standard is not satisfied merely through a showing of ill will or ‘malice’ in
the ordinary sense of the term”).
B. Shopping Mall Ad (¶¶ 74-75)
In Part I, the court denied Defendants’ motion to dismiss Moore’s defamation
claims about the shopping mall ad because Moore had “pleaded facts that could
prove that Defendants’ alteration of various media quotes ‘resulted in a material
change in the meaning conveyed by the statement’ Defendants quoted.” Part I at 46.
Moore repleads these claims about the shopping mall ad in his amended complaint.
Doc. 47, ¶¶ 74-75 (Count 1), 84-85 (Count 2).
Of course, Alabama courts must apply the United States Supreme Court’s interpretation of the First Amendment to
the federal Constitution.
Defendants concede that the court’s previous ruling applies to Moore’s
amended complaint, so Defendants concede that Moore can proceed on his claim
that Defendants’ juxtaposition of quotes creates the defamatory message that Moore
solicited sex from a 14-year-old girl at the Gadsden Mall. Doc. 52 at 24.
Defendants ask the court to limit its ruling to this portion of the ad and dismiss
Counts 1-2 to the extent that Moore contends that these statements from the ad were
• “Moore was actually banned from the Gadsden Mall…”;
• “These stories have been going around for 30 years”;
• “These women are being skewered for the truth”; and,
• “I actually voted for Moore…but I am basically disgusted now.”
Doc. 52 at 24-27. The court finds that Moore cannot proceed with a claim on the
final three quotes for three reasons: (1) Moore does not allege in Counts 1-2 of his
amended complaint that these quotes were false or were made with actual malice
(doc. 47, ¶¶ 74-75, 84-85); (2) Defendants accurately quoted these statements in the
shopping mall ad; and, (3) Moore failed to address Defendants’ argument about
these statements in his opposition brief. So the court rules that none of the final three
statements are subject to discovery (doc. 56).
But the court will allow discovery on the phrase “Moore was actually banned
from the Gadsden Mall . . .” as part of the larger, juxtaposed statement that the court
previously ruled could go forward:
Doc. 47, Ex. A.
Moore makes the phrase “Moore was actually banned from the Gadsden Mall”
an integral part of his juxtaposition claim:
[Defendants SMP and Waterfront] had the articles before them from
which they extracted the four quotations and could tell that not one of
them supported the proposition that Judge Moore ‘was actually banned
from the Gadsden Mall . . . for soliciting sex from young girls.’ The
deceitful construction of the ad, juxtaposing statements from Al.com
and New Yorker articles out of context against the dubious ‘mall ban’
claim constitutes deliberate misrepresentation. . . .
There were no prior reports that Roy Moore was actually banned
from the mall for soliciting sex from young girls at the mall, so the
Defendants cannot rely on ‘prior reports.’ Simply perverting highly
contested prior reports which did not include the narrative propagated
by the Defendants should not shield the Defendants from liability.
Doc. 47, ¶74-75. Defendants may be correct that Moore could not prove actual
malice for mentioning a mall ban if Defendants had stopped there. See Part I at 4-12
(outlining public reports about a mall ban). But Defendants tied the alleged ban to
Moore asking a 14-year-old Santa’s Helper (and others) to have sex. In that context,
Moore has sufficiently pleaded actual malice about a mall ban.
In sum, Moore has sufficiently pleaded actual malice for this portion of the
shopping mall ad: “Moore was actually banned from the Gadsden Mall . . . for
soliciting sex from young girls. One he approached was 14 and working as Santa’s
helper.” So Moore is entitled to discovery about that statement. Moore has not
sufficiently pleaded actual malice for any other statement in the shopping mall ad.
C. Digital Ad (¶¶ 76-78)
In Part I, the court dismissed Moore’s claims about the digital ad for failure
to sufficiently plead actual malice. See Part I at 34-40. Moore has repleaded the same
claims about the digital ad, with these bases for actual malice:
• The threat of exposing or doxing voters;
• Use of the term “child predator” without sufficient supporting
• The depiction of “a young black preteen aged child,” even
though Moore’s accusers were “teenage white girls.”
Doc. 47, ¶¶ 76-78. The court rejected the first two bases for actual malice in Part I,
see Part I at 38-40, and adopts that portion of the Part I opinion to find that neither
bases would establish actual malice in Moore’s amended complaint. 3
That leaves Moore’s new argument—i.e., that Defendants put a picture of a
“young black girl seemingly under the age of 10” in the ad “to imply that Roy Moore
has, or would prey on prepubescent black girls.” Doc. 47, ¶37. Moore pleads that no
published reports support a statement that Moore sought sex from prepubescent
black children, nor have Defendants cited any. So if the digital ad stated or implied
that Moore “has or would prey on prepubescent black girls,” Moore might be able
to show Defendants were reckless in publishing the ad. But that’s a big ‘if’.
Moore admits in his amended complaint that “legally Corfman and Nelson would be considered ‘children’” (doc.
47, ¶40), an admission that dooms any argument that the use of the term “child predator” was not supported by media
reports when Defendants released the digital ad.
Defendants argue that no reasonable viewer would understand the following
to say or imply that “Moore molested the specific girl who appeared in the ad”:
Doc. 52 at 20. Rather, Defendants contend that “the ad sought to impress on voters
the message that would be sent to Alabama’s children if Moore was elected to
statewide office”—i.e. “that protecting children is not one of the electorate’s
political priorities.” Id.
Under Alabama law, it’s up to the court to decide whether the digital ad
implied or conveyed “that Roy Moore has, or would prey on prepubescent black
girls.” Doc. 47, ¶37; see Kelley v. Arrington, 624 So. 2d 546, 548 (Ala. 1993)
(“Whether a communication is reasonably capable of a defamatory meaning is a
question of law.”). The court must find the meaning that “[viewers] of common and
reasonable understanding would ascribe to it.” Id. If the court decides that “the
communication is not reasonably capable of a defamatory meaning, there is no issue
of fact,” and the court must dismiss Moore’s claim. Id.
The court finds that viewers of reasonable and common understanding who
watch the digital ad would not come away with the message that Moore “has or
would prey on prepubescent black girls.” Doc. 47, ¶37. Nothing in the ad focuses on
the pictured child’s race or the race of Moore’s accusers. For the brief moments that
the girl appears on screen, the message is that the public will know whether the
viewer voted. That message has nothing to do with the race of the child in the photo.
Tellingly, Moore did not view the ad with racial lenses at first either. In his
original complaint, Moore simply alleged that “the ad pictures a young girl who
could not have been more than 10 years old.” Doc. 1 ¶ 32. Moore never used the
words “prepubescent” or “black” in his original complaint. See Doc. 1. He added
them only after the court rejected his original actual malice arguments for the digital
ad (doc. 45 at 38-39) and mentioned the diagnostic definition of “pedophilia” when
discussing the Priorities USA press release (id. at 31).
Because the digital ad is not reasonably capable of conveying the meaning
that Moore gives it, the court needn’t determine whether Moore sufficiently pleaded
that the message was defamatory or that Defendants acted with actual malice. So the
court will dismiss all counts related to the digital ad.
D. Guy Cecil statements (¶¶ 79-80)
In Part I, the court dismissed Moore’s claims about four tweets from Guy
Cecil for lack of personal jurisdiction. See Part I at 17-21. The court then dismissed
Moore’s claim about the Priorities USA press release (written by Cecil) for failure
to sufficiently plead actual malice. Id. at 21-23. Moore raises the same claims about
the same tweets and press release in his amended complaint.
1. Four Tweets
In his amended complaint, Moore reiterates his previous argument that the
court has personal jurisdiction over Cecil’s tweets because the election was in
Alabama and Moore suffered harm in Alabama. Doc. 47, ¶ 55. But the court already
rejected these arguments in Part I, see Part I at 17-21, and Moore pleads no new facts
that would show Cecil aimed his tweets at Alabama. So the court adopts its previous
reasoning that (a) the court lacks personal jurisdiction over the four tweets, id., and
(b) declines to exercise pendent jurisdiction over the tweets. Id. at 23-25.
2. Priorities USA Press Release
In his amended complaint, Moore pleads these bases for actual malice about
the December 12 press release:
• Cecil called Moore a “pedophile,” which implies that Moore is sexually
attracted to “prepubescent little girls (in some instances black girls),” even
though Cecil knew that Moore’s youngest accusers were “post pubescent
white women”; 4
• Cecil could not support Corfman and Nelson’s allegations that Moore
assaulted them when they were teenagers; and,
• Priorities USA and SMP deceived Alabama voters about their identities
until after Doug Jones won the special election.
Doc. 47, ¶79. The court rejected the second and third arguments in Part I, see Part I
at 31-33, and Moore pleads no new facts that change the court’s analysis. So the
court adopts its previous opinion, id., and finds that Moore fails to sufficiently plead
actual malice for the same reasons in his amended complaint.
That leaves Moore’s argument that Cecil acted with actual malice when he
called Moore a “pedophile.” And this argument boils down to how you define the
In his amended complaint, Moore alleges that “pedophile” or “pedophilia”
means “a mental disorder, not simply a sexual act, which involves prepubescent
The press release does not mention race, nor does it include pictures of children of any race. So Moore’s comments
about race are irrelevant to showing actual malice for the press release.
children under the age of thirteen.” 5 Doc. 47, ¶ 40 n.7. Moore alleges that Cecil knew
that Moore’s youngest accuser was 14 years old, so Cecil acted with actual malice
when he called Moore a “pedophile.” Doc. 47, ¶ 79.
But Cecil says that he used pedophile as “laypeople” understand it: “someone
who is sexually attracted to children” of any age. Doc. 52 at 24 (quoting Black’s
Law Dictionary); see also Pedophile, Oxford English Dictionary (3rd ed. 2005) (“an
adult who is sexually attracted to children”). Moore admits in his amended complaint
that “legally Corfman and Nelson would be considered ‘children,’” Doc. 47, ¶ 40;
so Cecil argues that calling Moore an adult “who is sexually attracted to children”
was supported by the published Corfman (14) and Nelson (16) allegations.
This war of words leads to two questions. First, could a reasonable reader
interpret Cecil’s use of the word “pedophile” to suggest that Moore suffered from a
mental disorder that made him sexually attracted to prepubescent girls? If so, did
Cecil act with actual malice when he called Moore a “pedophile?”
1. Common Understanding: As discussed with the digital ad, Alabama law
requires the court to find the meaning of “pedophile” that “readers of common and
reasonable understanding would ascribe to it.” Kelley, 624 So. 2d at 548. If the court
decides that “the communication is not reasonably capable of a defamatory meaning,
Moore gives pedophilia its diagnostic meaning. See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders § 302.2 (5th ed. 2013) (stating that “pedophilic disorder” requires a person 16 years or
older to have sexual fantasies about, urges for, or behaviors with a prepubescent child or children).
there is no issue of fact[.]” Id. But if the court finds that the press release “is
reasonably capable of a defamatory meaning,” then there is an issue of fact and
dismissal is not proper. Finebaum, 854 So. 2d at 1128.
Here is the full press release:
Like Cecil’s tweets, Moore was not the primary target of the press release; the
Republican Party was. When Cecil took his shots at Moore, he never discussed the
age of Moore’s accusers, nor did he add any context that made the reader assume
that Moore suffered from a disorder that made him sexually attracted to prepubescent
children. Instead, Cecil matter-of-factly called Moore a “child molester” and a
“pedophile” because he assumed that the reader was familiar with the allegations.
Based on the context, the court finds that readers of the press release most
likely understood Cecil’s use of the word “pedophile” to refer to the allegations that
Moore sexually assaulted a 14-year-old and a 16-year old. Cecil was not the first to
use the word this way. By election night, media pundits had used the term multiple
times to describe the allegations. For example, Republican Strategist Steve Schmidt
told an MSNBC host: “What we’re talking about here, Chris, is a 14-year-old little
girl. Roy Moore is a pedophile. He’s a child molester.” Brandon Carter, GOP
strategist: “There needs to be a repudiation of Roy Moore by Republicans, the Hill,
Nov. 10, 2017 (10:48pm). And Jessica Tarlov wrote this for Fox News: “The
Washington Post revealed Thursday that Moore has been accused of sexual
misconduct by four women, including one who was just 14 when the 32-year-old
Moore allegedly assaulted her. That’s the definition of pedophilia for those who are
on the fence.” Jessica Tarlov, Democrats, stay out of the Senate race in Alabama if
you want to win, send cash instead, FoxNews.com, Nov. 13, 2017.
That said, Cecil’s press release was at least “reasonably capable” of being read
to suggest that Moore suffers from a disorder that makes him want to have sex with
prepubescent girls. Kelley, 624 So. 2d at 548. Webster’s dictionary, for example,
defines “pedophilia” as “sexual perversion in which children are the preferred sexual
object, specifically: a psychiatric disorder in which an adult has sexual fantasies
about or engages in sexual acts with a prepubescent child.” Pedophilia, MerriamWebster.com Dictionary (last checked March 29, 2021). And the Washington Post—
the newspaper that published the Corfman allegation—had chastised persons for
using the clinical terms “pedophile” and “pedophilia” to describe Moore. See Rachel
Hope Cleves & Nicholas L. Syrett, Opinion: Roy Moore is not a pedophile,
Washington Post, Nov. 19, 2017 (5:58pm).
Because the court finds that Cecil’s use of the word “pedophile” in the press
release could reasonably be read to suggest that Moore was sexually attracted to, or
had sexually assaulted, prepubescent girls, the court finds that Moore has sufficiently
pleaded defamation under Alabama law. So the court moves on to actual malice.
2. Actual Malice: The Alabama Supreme Court has held that
[w]hen a public official or public figure alleges a defamatory meaning,
a defamatory implication, or a defamatory innuendo, ‘[n]ot only must
the plaintiff establish that the statement is susceptible of a defamatory
meaning which the defendants knew to be false or which the defendants
published with reckless disregard for its potential falsity, but also that
the defendants intended to imply or were reckless toward the
Finebaum, 854 So. 2d at 1124-25 (quoting Saenz v. Playboy Enters., Inc., 841 F.2d
1309, 1318–19 (7th Cir.1988)). Here, that means that once Moore shows that
someone could read the word “pedophile” to mean that Moore suffered from a
disorder that made him sexually attracted to prepubescent girls, Moore must prove
two things to establish actual malice: (1) Cecil knew that Moore had not been
accused of sexually assaulting a prepubescent girl, or was reckless for not knowing,
and, (2) Cecil intended that the reader believe Moore had been accused of sexually
assaulting a prepubescent girl, or Cecil knew that a reader might read the word
“pedophile” that way and was reckless with the implication. This case turns on the
second requirement, as Cecil does not contend that someone alleged Moore
approached or assaulted a prepubescent girl.
Five Circuit Courts of Appeal have adopted the requirement that, when parties
disagree about a word’s meaning, a public figure Plaintiff must prove the Defendant
intended the reader to ascribe the defamatory meaning. See Manzari v. Assoc.
Newspapers LTD., 830 F.3d 881 (9th Cir. 2016); Kendall v. Daily News Pub. Co.,
716 F.3d 82, 90 (3rd Cir. 2013); Compuware Corp. v. Moody’s Investors Servs., Inc.,
499 F.3d 520, 528–29 (6th Cir. 2007); Howard v. Antilla, 294 F.3d 244, 252 (1st
Cir. 2002); Saenz, 841 F.2d at 1317–18. The Third Circuit has aptly explained why:
The Supreme Court has explained that in the libel context, ‘[m]alice
[has been] defined in numerous ways, but in general depend[s] upon a
showing that the defendant acted with improper motive.’ Herbert v.
Lando, 441 U.S. 153, 163–64, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).
Showing motive ‘hinge[s] upon the intent or purpose with which the
publication was made.’ Id. at 164, 99 S.Ct. 1635. These statements
show that the intent of the publisher is linked to determining if that
publisher had the actual malice necessary to support a libel claim. Cf.
Harte–Hanks, 491 U.S. at 688, 109 S. Ct. 2678 (explaining that actual
malice involves a subjective inquiry into a defendant’s mental state
rather than just an objective determination of a statement’s truth);
Saenz, 841 F.2d at 1317 (‘Proof of actual malice depends upon the
defendant’s actual state of mind.’ (citing Herbert, 441 U.S. at 160, 99
The need to show intent necessarily means that the actual-malice
standard will have different elements of proof in ordinary defamation
cases than in defamation-by-implication cases. In ordinary defamation
cases, intent to defame can be established solely through knowledge
that the statement was false. After all, if the defendants knew that the
statement made was false and defamatory, then they must have intended
to defame. And while the statement itself rarely indicates whether its
publisher knew it was false, the statement does show that its publisher
knew it was defamatory because it can have only defamatory meanings.
So all a plaintiff needs to demonstrate in ordinary defamation cases to
establish intent to defame is that the defendants knew their statement
But in defamation-by-implication cases, showing known falsity alone
is inadequate to establish an intent to defame. In these cases, we may
no longer presume with certainty that the defendants knew they were
making a defamatory statement because the statement has defamatory
and nondefamatory meanings. Therefore, in such cases, plaintiffs must
show something that establishes defendants’ intent to communicate the
Kendall, 716 F.3d at 90-91. Based on this rationale, these circuit courts (and the
Alabama Supreme Court) have held that to establish actual malice when a word has
more than one meaning, a public figure must show “that the defendant either
intended to communicate the defamatory meaning or knew of the defamatory
meaning and was reckless in regard to it.” Id.
Moore does not plead in his complaint, not even in a conclusory manner, that
Cecil intended the December 12 press release to convey a clinical diagnosis of
pedophilia—i.e., that Moore suffered from a disorder that made him sexually
attracted to prepubescent girls. Nor did Moore plead facts that would show Cecil
knew that a reader might understand his use of the word “pedophile” suggested that
someone accused Moore of sexually assaulting a prepubescent girl and recklessly
issued the press release anyway. Instead, Moore pleaded this:
The purpose of Cecil’s tweets and press release is apparent; the
Defendants were supporting Doug Jones against Roy Moore and they
wished to damage Roy Moore’s reputation to such an extent to deter
support of Roy Moore and deter voters from choosing a ‘pedophile’ as
a Senator. This was the end goal of all defamatory statements made by
Doc. 47, ¶ 56. But proving that Cecil’s intent was to smear Moore so that Moore
would lose the election does not prove actual malice. Moore must prove that Cecil
intended the reader believe that Moore suffered from a disorder that made him
assault prepubescent girls because that is the false defamatory fact that Moore
alleged had no support in published reports. Moore has not pleaded those facts, so
he cannot overcome Cecil’s reliance on published reports of the Corfman and Nelson
allegations. See Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859, 862 (5th Cir.
1978) (holding that actual malice cannot be proved where “the publisher’s
allegations are supported by a multitude of previous reports upon which the
publisher reasonably relied”).
Because Moore fails to plead facts that would prove actual malice, the court
must dismiss Count 1 as it pertains to the December 12 press release.
COUNT III: Intentional Infliction of Emotional Distress / Outrage
In Part I, the court dismissed Moore’s IIED claim without prejudice because
Moore admitted that he hadn’t pleaded the distress element. See Part I at 50. Moore
has re-pleaded his IIED claim, including the distress element. Doc. 47, ¶¶ 86-90.
Because IIED requires actual malice, see Hustler Mag., Inc. v. Falwell, 485
U.S. 46, 56 (1988), the only statement that could support Moore’s IIED claim is this
portion of the Shopping Mall ad: “Moore was actually banned from the Gadsden
Mall . . . for soliciting sex from young girls. One he approached was 14 and working
as Santa’s helper.” To prove IIED (also known as the tort of outrage), Moore must
show that Defendants’ release of the shopping mall ad (1) was “intentional or
reckless”; (2) was “extreme and outrageous”; and, (3) caused Moore “emotional
distress so severe that no reasonable person could be expected to endure it.” Wilson
v. Univ. of Alabama Health Services Found., P.C., 266 So. 2d 674, 676 (Ala. 2017).
Defendants argue that Moore deficiently pleaded the second and third elements, but
the court will limit its analysis to the second—i.e., whether Defendants’ conduct was
“extreme and outrageous.”
Under Alabama law, extreme means extreme. Moore must show that the
shopping mall ad was “so extreme in degree as to go beyond all possible bounds of
decency and be regarded as atrocious and utterly intolerable in a civilized society.”
Id. Here are some examples of conduct that the Alabama Supreme Court, and the
Eleventh Circuit interpreting the Alabama Supreme Court, have found not extreme
enough to support an IIED claim:
• A physician hit a nurse with a surgical drape that exposed her to
potential HIV infection and said, “I don’t give a damn,” see
Grantham v. Vanderyl, 802 So. 2d 1077 (Ala. 2001);
• A hospital wrongly accused a nurse of having a drug problem,
leading to an investigation by the Nursing Board, see Potts v. Hayes,
771 So. 2d 462 (Ala. 2000);
• A supervisor asked a female employee to have dinner with him, to
kiss him, and to have an affair with him, see McIsaac v. WZEW-FM
Corp., 495 So. 2d 649 (Ala. 1986); and,
• A coworker grabbed the Plaintiff’s head and (while clothed) made
pelvic thrusts into the Plaintiff’s face. See Stancombe v. New
Process Steel, LP, 652 Fed. App’x. 729 (11th Cir. 2016).
In fact, the Alabama Supreme Court has recognized a viable IIED claim in only three
circumstances, none of which apply here: (1) wrongful conduct in the family-burial
context; (2) barbaric methods used to coerce an insurance settlement; and, (3)
egregious sexual misconduct. See Wilson, 266 So. 2d at 677. That said, the Alabama
Supreme Court has said that a viable claim could fall outside these categories. Id.
So the question is this: Is running a political ad that wrongly suggested that
Moore was banned from a public mall for asking a 14-year-old girl(s) to have sex
“so extreme in degree as to go beyond all possible bounds of decency and be
regarded as atrocious and utterly intolerable in a civilized society?” Id. at 676. The
Alabama court has held that asking an adult subordinate to have sex is not so
outrageous, McIsaac, supra, so being falsely accused of doing so would also not be
too outrageous. But Moore is correct that society considers an adult asking a 14year-old for sex is much more intolerable (and, if successful, criminal).
Yet being falsely accused of asking a child for sex in a political ad is far less
outrageous than the sex-related conduct the Alabama Supreme Court has found
viable—i.e., a family doctor giving a 13-year-old boy opiate prescriptions in
exchange for performing sexual acts, a practice that lasted 7-plus years and led to
the boy becoming addicted to opiates. See O’Rear v. B.H., 69 So. 3d 106 (Ala. 2011).
And Moore has pointed to no cases in which the Alabama Supreme Court said that
a false accusation in a political ad could support a viable IIED claim.
Federalism dictates that this court not create a fourth category of state-law
IIED claims here. Perhaps one day Alabama courts will recognize that false
accusations in a political ad are “so atrocious and utterly intolerable in a civilized
society” that they can constitute a viable state-law IIED claim. But this federal court
will not impose that decision on the state court.
And, federalism aside, the court would reach the same result because (for
better or worse) this court cannot say that society finds political ads that twist
reported facts to defame a candidate “so atrocious and utterly intolerable” that they
“go beyond all possible bounds of decency.” Wilson, 266 So. 2d at 676.
So the court will grant Defendants’ motion to dismiss Count 3.
NEW CLAIMS: Are Counts IV-V Proper?
Moore pleads two new claims in his amended complaint: Count 4 alleges voter
intimidation under the federal Voting Rights Act (doc. 47, ¶ 91-100) and Count 5
alleges a state-law claim of invasion of privacy—false light (doc. 47, ¶ 101-06).
Defendants argue that the court should strike both counts because Moore did not get
Defendants’ written consent or the court’s leave to add new counts, as required by
Rule 15(a)(2) says that “a party may amend his pleading only with the
opposing party’s written consent or the court’s leave.” In its September 18, 2020
order, the court said that “Moore may amend his complaint by October 16, 2020.”
Doc. 46. Defendants are correct that the court’s intent was to allow Moore to cure
his deficient pleadings, not to add new claims. But the court did not put that
limitation in its order. The court merely said Moore “may amend his complaint,”
which means that, under Rule 15(a)(2), Moore had the court’s leave to amend by repleading and adding claims. So the court will consider Counts 4-5 here—and will be
more precise in future orders.
COUNT IV: Voting Rights Act
The Voting Rights Act (“VRA”) says that “[n]o person, whether acting under
color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to
intimidate, threaten, or coerce any person for voting or attempting to vote.” 52
U.S.C. § 10307(b). Moore alleges that the following portion of the digital ad
intimidated voters in violation of § 10307(b):
Moore alleges that “the intent of the ad was to target Alabama voters to seek votes
for Jones through intimidation, misinformation, and threats[;]” by “threaten[ing] to
expose or dox Alabama voters who chose the wrong candidate.” Doc. 47, ¶ 92.
Moore does not, however, allege how the intimidation tactic injured him,
which implicates standing. Because standing is a threshold, jurisdictional issue, see
Wood v. Raffensperger, 981 F.3d 1307, 1313 (11th Cir. 2020), the court must start
there. And the court is looking for three things: “(1) an injury in fact that (2) is fairly
traceable to the challenged action of the defendant and (3) is likely to be redressed
by a favorable decision.” Id.
1. Injury as a candidate: Moore does not allege in his amended complaint that
the ad injured him as a candidate. While Moore alleges that Defendants’ “campaign
intimidated, threatened, and/or attempted to intimate or coerce the voters of Alabama
from exercising their right to cast a ballot in secrecy,” Doc. 47, ¶ 99, Moore does not
allege that any person failed to vote because the ad intimidated him, much less the
21,925 votes it would take to change the election result. 6
Nor does the VRA give candidates standing. Section 10302(a) says that “the
Attorney General or an aggrieved person” can institute a proceeding to enforce
§ 10307. But the “aggrieved person” under § 10307(b) is the voter who suffers the
intimidation, threat, or coercion, not the candidate favored by the aggrieved voter.
See Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir. 1989) (“We conclude that an
unsuccessful candidate attempting to challenge election results does not have
standing under the Voting Rights Act.”). So if Moore has standing, it comes from
being an aggrieved voter.
The election results are available at http://www.sos.alabama.gov/alabama-votes/voter/election-night-official-results.
2. Injury as a voter: Moore does not allege in his complaint that he failed to
vote because the ad intimidated him. When Defendants challenged Moore’s standing
for failing to plead injury, Moore failed to tackle the standing issue head-on. In fact,
this is the only passage about harm in Moore’s argument on the VRA claim: “The
false accusations levied against Plaintiff Moore are now forever archived on the
internet for further viewing and dissemination. This harm suffered by Plaintiff
Moore is a direct result of the Defendants false and intimidating ads targeted at the
voters of this State.” Doc. 56 at 18. But Moore’s talk of “false accusations” makes
no sense as a standing argument for two reasons: (1) Moore alleged that the digital
ad was removed from the internet in December 2017 (doc. 47, ¶¶ 44, 95-96) and, (2)
this is a Voting Rights claim, so the harm must be tied to voters not voting. Or, as
Defendants put it in their reply: “this argument confuses Moore’s Section 11(b) [of
the Voting Rights Act] claim with his tort claims.” Doc. 57 at 15.
So the court asked Moore to specify his injury at the motion hearing. Moore
argued vote dilution:
It is well-established in the law in all the States that diluting his vote by
virtue of the fact that people were kept away, that diluted his vote, made
it less important, and it affected and injured him. There’s a number of
case authority on that. And we did allege the injury. It is not Rule 9
notice pleading. We don’t have to have everything in the complaint. We
said he was injured, and that is the primary injury, the dilution of his
Of course, this means Moore voted in the election, so he was not personally injured
by the intimidation.
Plus, Moore does not allege vote dilution in his amended complaint. Nor
would vote dilution provide Moore with a particularized injury, if he alleged it. Let’s
assume the digital ad intimidated 100 people into staying home. That result did not
dilute the weight of Moore’s vote; Moore’s vote carried the same weight as every
other vote cast on December 12, 2017. That means that Moore’s dilution complaint
is a “generalized grievance [that] is undifferentiated and common to all members of
the public.” Wood, 981 F.3d at 1314. In fact, Moore affirmed at the hearing that he
believed “every registered Alabama voter would have standing to bring this suit,
even if [his] candidate won.”
The Eleventh Circuit recently held that “vote dilution in this context is a
paradigmatic generalized grievance that cannot support standing.” Wood, 981 F.3d
at 1314-15. The court must follow this holding and find that Moore has failed
articulate a theory of standing for his voter intimidation claim.
3. Redressability: Moore’s failure to plead an injury in fact is enough to divest
the court of jurisdiction over his VRA claim. But Moore also fails to ask for a remedy
that can redress his harm. Moore does not ask for the digital ad to be taken down (it
already has been, see doc. 47, ¶¶ 44, 95-96), nor does Moore ask the court to overturn
the 2017 election results (nor could it). Moore just asks for money damages. Doc.
47, ¶ 107. But the statutory remedy for a violation of §10307(b) is a $5000 civil fine,
imprisonment, or both. 52 U.S.C. § 10308. The VRA does not provide compensatory
and punitive damages. See Olagues v. Russoniello, 770 F.2d 791, 805 (9th Cir. 1985)
(stating in a voter intimidation case that “[t]he [VRA], however, does not specify
any statutory damage remedies. No case has been cited nor have we found one in
which damages were recovered.”).
In short, Moore fails two of the three prerequisites for standing: (1) an injury
in fact and (2) redressability. So the court dismisses Count 4 for lack of standing.
Count V: Invasion of Privacy—False Light
Moore’s final count alleges a state-law invasion of privacy (false light) claim.
Doc. 47, ¶ 101-06. A false light claim requires the same proof of actual malice that
defamation claims required. See Smith v. Huntsville Times Co., Inc., 888 So. 2d 492,
496 n.1 (Ala. 2004). So for the reasons stated in Counts 1-2, the court dismisses all
claims for false light except Moore’s claim that the following portion of the shopping
mall ad put him in a false light: “Moore was actually banned from the Gadsden Mall
. . . for soliciting sex from young girls. One he approached was 14 and working as
Santa’s helper.” Defendants concede that Moore’s false light claim on this portion
of the shopping mall ad should not be dismissed. Doc. 52 at 35.
Dismissal with or without prejudice
As explained above, these claims are due to be dismissed:
Counts 1, 2, 5: all claims about the digital ad;
Counts 1, 2, 5: all claims about Cecil’s tweets and press release;
Count 3; and,
As for the shopping mall ad, the court limits Counts 1, 2, and 5 to the following
portion of the ad: “Moore was actually banned from the Gadsden Mall … for
soliciting sex from young girls. One he approached was 14 and working as Santa’s
helper.” Any claim arising from other portions of the ad are also dismissed.
The court will dismiss these claims with prejudice for three reasons. First, the
court gave Moore a chance to cure the deficiencies in his original complaint, along
with a 54-page opinion explaining the court’s rationale for its original ruling. The
Eleventh Circuit has said that, in cases requiring actual malice, “the plaintiff should
have the opportunity to amend his complaint to plead further facts,” Michel, 816
F.3d at 706 (emphasis added), not multiple or unlimited opportunities.
Second, the case needs to move forward. The court stayed discovery pending
its ruling on the motion to dismiss Moore’s amended complaint out of respect for
the Eleventh Circuit’s statement that:
Forcing publishers to defend inappropriate suits through expensive
discovery proceedings in all cases would constrict that breathing space
in exactly the manner the actual malice standard was intended to
prevent. The costs and efforts required to defend a lawsuit through that
stage of litigation could chill free speech nearly as effectively as the
absence of the actual malice standard altogether. Thus, a public figure
bringing a defamation suit must plausibly plead actual malice in
accordance with the requirements set forth in Iqbal and Twombly.
Id. at 702. Moore’s counsel commented on the resulting discovery delay multiple
times at the motion hearing. Counsel is right; the case needs to move to discovery.
And the only way to do that while respecting the Circuit’s admonition in Michel is
to fully dismiss those Defendants against whom there is no pending claim.
Third, the court finds that a third bite at the apple would be futile. As the court
said in Part I, proving that “Defendants Cecil, Priorities USA, or Bully Pulpit had a
relationship with, or connection to, Corfman or Nelson in 2017” or that “those
Defendants had ‘a high degree of awareness of probably falsity’ of Corfman or
Nelson’s allegations in 2017 may well be futile.” Part I at 52 (quoting Gertz, 418
U.S. at 332). But the court gave Moore the chance to plead those facts. He has not,
which suggests that he cannot. So another round of re-pleading defamation and false
light claims against those Defendants (i.e., Counts 1,2,5) would be futile.
As for IIED (Count 3), pleading different facts would not change the fact that
Alabama courts have not recognized that false accusations in a political ad are “so
atrocious and utterly intolerable in a civilized society” that they can constitute a
viable state-law IIED claim. So re-pleading Count 3 would be futile.
As for the Voting Rights Act claim (Count 4), it is due to be dismissed without
prejudice for lack of jurisdiction. But the court finds that it would be futile for Moore
to replead the claim because he cannot overcome two standing problems: (a) Moore
voted, so the alleged voter intimidation did not injure him, and (b) the 2017 election
cannot be overturned, so the court cannot redress Moore’s vote-related grievance.
This chart summarizes the court’s ruling on the motion to dismiss (doc. 52):
Count 1, ¶74 SMP,
Count 1, ¶76 Priorities USA,
Count 1, ¶79 Cecil
Count 1, ¶79 Cecil
Dismissed w/ Prejudice
Dismissed w/out Prejudice
(lack of jurisdiction)
Press Release Dismissed w/ Prejudice
TV ad, digital
ad, and press
Ruling on Motion
Dismissed w/ Prejudice
Dismissed w/ Prejudice
Dismissed w/out Prejudice
(lack of jurisdiction)
Dismissed w/out Prejudice
(lack of jurisdiction)
Dismissed w/ Prejudice
Dismissed w/out Prejudice
(lack of jurisdiction)
Press Release Dismissed w/ Prejudice
The court lifts its stay on discovery, which will proceed on Counts 1, 2, and 5
limited to the following portion of the shopping mall ad: “Moore was actually
banned from the Gadsden Mall … for soliciting sex from young girls. One he
approached was 14 and working as Santa’s helper.” The parties must file a Rule 26
report no later than May 7, 2021. The contents of the report are governed by the
court’s initial order (doc. 26).
DONE on March 31, 2021.
COREY L. MAZE
UNITED STATES DISTRICT JUDGE
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