Ex-Alabama Justice Roy Moore Argues Solo to Revive Libel Case

Former Alabama Supreme Court Chief Justice Roy Moore argued to federal appellate judges that a news outlet’s articles revisiting his sexual misconduct allegations went beyond opinion and hyperbole and should be considered defamatory statements of fact.

Moore, who served twice as chief justice of the Alabama Supreme Court where he faced sanctions each time, wants the US Court of Appeals for the Eleventh Circuit to revive his lawsuit against staff members and owners of the Washington Examiner. A three-judge panel of the Eleventh Circuit heard arguments Tuesday in Atlanta, where Moore represented himself.

Moore argued the news outlet defamed him in a series of 2019 articles that discussed allegations of sexual misconduct with underage girls and didn’t respond to a request for retraction that he sent after the first two articles. The allegations against Moore were first reported in 2017 during his unsuccessful run to replace Sen. Jeff Sessions (R), who stepped down to become US attorney general.

The US District Court for the Northern District of Alabama dismissed most of Moore’s claims in March 2022, finding that Moore failed to adequately allege the statements published by the Washington Examiner were false and defamatory.

Moore said one of the article’s statements in particular—that he was “famous for being banned from a mall because he sexually preyed on underage girls"—was based on prior news reports that relied on anonymous sources. He said this weighed in favor of finding the reporters acted with malice, because the Examiner has a stated policy of being cautious in its use of anonymous sources.

“They ignored the letter of retraction. They ignored that there was countervailing evidence” to dispute the misconduct allegations, he told the judges. “They lowered their own standards, and that was avoidance of the truth.”

Judge Kevin C. Newsom questioned whether the context of that statement, being part of an article that also referred to Moore as a skunk and a “comic book villain,” makes it clear that the reference to the alleged mall ban was rhetorical hyperbole and not a statement of fact.

“It’s all pretty figurative language. Should we take that into account?” Newsom said.

Judge Elizabeth L. Branch also questioned Moore’s point about the reliance on anonymous sources, noting a New York Times article from 2017 quoted a former mall employee by name as alleging Moore harassed her and that she later heard he’d been banned from the mall.

Moore opened his arguments by saying he was representing himself only because his counsel in the case, Jeffrey S. Wittenbrink of Baton Rouge, La., had a serious heart attack the night before and required open-heart surgery.

Ordinarily he follows the mantra that “a lawyer who represents himself has a fool for a client,” he told the court.

Nine Public Accusers

Nine women came forward in 2017 and told news outlets that decades earlier a 30-something-year-old Moore had groped, kissed, harassed, or otherwise made sexual advances toward them, most of them while they were teenagers and one as young as 14, as recounted in court filings.

Moore denied the allegations and said they were politically motivated fabrications, and said he had faced no claims of sexual misconduct in his prior 40 years of public service as a judge and prosecutor.

Moore ran as a Republican but lost that 2017 election to a Democrat, Doug Jones. Amid speculation that he would challenge Jones for the seat again in 2020, the Washington Examiner ran its series of news and opinion articles contending Moore was unfit for public office and that Republicans should choose another candidate to challenge Jones. Alabama ended up electing Tommy Tuberville to replace Jones in the Senate in 2020.

Earlier in 2017, Moore had retired from the Alabama Supreme Court after being suspended for instructing Alabama judges not to adhere to the US Supreme Court’s decision declaring same-sex marriage legal nationwide.

He was previously removed from the Alabama chief justice position in 2003 for refusing to take down a Ten Commandments monument from the court building.

‘Close to the Line’

Judge Robert J. Luck focused his questions on another statement in the Washington Examiner articles—one author’s comment that the allegations against Moore were overwhelmingly likely to be true.

“This seems to come pretty close to the line” between a statement of fact versus an opinion, Luck said.

The author “has every right to comment on why in her view these are credible,” said Daniel S. Severson of Kellogg Hansen Todd Figel & Frederick PLLC in Washington, D.C., who argued the case for the Washington Examiner defendants. Because she relied heavily on prior press reports and included links to some of them in her articles, readers wouldn’t misunderstand her writing to be a new finding of fact instead of a commentary, he added.

Moore didn’t dispute that he’s a public figure and that Supreme Court precedent would require him to prove “actual malice” in order to win a defamation claim, but he argued in his briefs that the Eleventh Circuit should reverse the trend of federal courts raising the bar ever higher for plaintiffs to prove defamation.

To the extent that the Washington Examiner’s statements were based on prior news reports, Moore will face an especially high hurdle, Luck said.

Under Eleventh Circuit precedent, the judge said “if a statement is based off many reports, then it’s difficult to meet the actual malice standard.”

Additional attorneys from Kellogg Hansen Todd Figel & Frederick PLLC and Lightfoot Franklin & White LLC in Birmingham, Ala., represented the defendants in the case.

The case is Moore v. Lowe, 11th Cir., No. 22-13187, oral arguments held 12/12/23.