Roy Moore’s Defamation Victory Sends A Message About The ‘Actual Malice’ Standard

John LucasAugust 23, 2022

On Aug. 12, a federal court jury in Alabama fired off an unmistakable message to the media and the D.C. swamp: “Stop lying and stop corrupting our elections. There will be consequences if you don’t.” That message was sent in the form of an $8.2 million verdict for defamation in favor of former Alabama Supreme Court Justice and senatorial candidate Roy Moore against a major Democratic player and his allies.

The jury found the Senate Majority PAC, a Democrat-aligned and sponsored “super PAC,” guilty of defamation. After a five-day trial the jury determined that Senate Majority PAC defamed Moore by painting him in a false light with false allegations of sexual misconduct with teenage girls.

Moore, a West Point graduate and Vietnam veteran, had been a controversial figure in Alabama politics, stemming at least from when he became known as the “Ten Commandments Judge” after installing a granite monument in the Alabama courts building that included a depiction of the Ten Commandments. In 2017, he was in a special election contest against Democrat Doug Jones to fill the Alabama Senate seat formerly held by Jeff Sessions.

A Brutal Election Campaign

To grasp the message that the jury appears to have been sending, it is necessary to consider the tone of the 2017 special election, the background of some of the key players, and a bit about the defenses raised.

To say that the election was hotly contested is an understatement. “Vicious” is not too strong a word. The federal court described the barrage of what appeared to be well-coordinated attacks on Moore by the New York Times, the Washington Post, Senate Majority PAC, and others, as a “firestorm of sexual assault allegations.”

The brutality of the campaign against Moore is illustrated by one of Senate Majority PAC’s defenses to his defamation claims. Senate Majority PAC urged the court that Moore could not recover any damages for loss of reputation because the attacks by the media and others had already “ruined Moore’s reputation beyond repair.”

The Swamp’s Super PAC

Senate Majority PAC was not just a major player in the Alabama elections, but a major player in the dark-money world of Democratic finances. Its size and clout can be measured by the money it raised in the 2020 election cycle: more than $372 million.

Open Secrets reports that Senate Majority PAC spent more than $230 million on federal elections, of which less than $15 million was spent on contributions “for Democrats.” Its contributions to Republicans were exactly zero. Senate Majority PAC did not ignore Republicans, however. It spent its remaining $215 million “against Republicans.” In short, 6 percent of its $230 million spent on elections was for a positive message “for Democrats” and the remaining 94 percent was on negative ads and attacks on Republicans.

As a bona fide member of the Washington swamp, Senate Majority PAC does not appear to have been totally transparent about what it was doing. Aware that Alabama voters might recoil from a Washington dark-money outfit jumping in to sway an Alabama election, Senate Majority PAC acted through another super PAC that attempted to present itself as more local.

Highway 31 was a “puppet PAC” formed to create the impression that the well-funded opposition to Moore was locally based. Formed by a Birmingham lawyer and named after a well-known north-south highway in Alabama, Highway 31 received 94 percent of its funding from Senate Majority PAC and another PAC called Priorities USA. Priorities USA is another self-described “progressive” super PAC based in D.C. that appears to be financially intertwined with Senate Majority PAC. Politico described the Priorities-Senate Majority PAC collaboration in Highway 31 as a “joint effort” between the two. A Senate Majority PAC spokesman admitted it was Highway 31’s “primary backer.”

After the election, its mission accomplished, Highway 31 self-terminated and dissolved. Jones ultimately won the Senate seat, and Highway 31’s vicious ads were credited with contributing to his small victory over Moore. For its part, Senate Majority PAC took credit for the libelous Highway 31 ads.

The Supreme Court’s Malice Requirement

After the Supreme Court’s decision in New York Times v. Sullivan in 1964, the media and political actors have had basically free rein to libel and slander their opponents without giving much thought (or investigation) into whether their charges are true. Political candidates and other public figures have effectively been barred from filing defamation suits, no matter how vicious and egregious the lies. That is because to succeed they must prove that the defendants had “actual malice.” That is an extremely high bar that is, in the words of former Supreme Court Justice Bryon White, an “almost impossible” standard.

It is not enough to show that defendants personally hate the person they are attacking, even with lies. To succeed a plaintiff must show that a defendant knew or “recklessly disregarded” whether the statements were false. Stated another way, if Highway 31 had reason to think that their false statements were true, that would be a complete defense. It is enough to show that the same lies had been told repeatedly by the media so that a defendant can claim that he thought the statements were true because he had read them elsewhere. Indeed, the court dismissed some of the false statements by defendants in Moore’s suit for this very reason.

The difficulty of proving this sort of “actual malice” discourages most public figures from defending their reputations when they are attacked, no matter how vicious the lies. And for the few public figures who do try, the successes are few and far between.

The Trial and Verdict

Moore’s defamation claim against Senate Majority PAC focused on a Highway 31 TV ad “that said Moore ‘was actually banned from the Gadsden Mall … for soliciting sex from young girls.’” Moore v. Cecil, 488 F. Supp. 3d 1144 (N.D. Ala. 2020). But, the challenge for Moore was not just to prove that it was a lie. He also had to overcome the “almost impossible” burden of proving actual malice.

After a five-day trial, the eight-person jury retired to deliberate. Typically, after a trial of that length, with 17 witnesses and no fewer than 254 exhibits, the jury will deliberate for a number of hours, perhaps into the following days. This jury, however, was back in 90 minutes with an $8.2 million verdict for Moore on two separate counts, defamation and “invasion of privacy, false light.” That is an extraordinarily quick result for a trial of this type and a multimillion-dollar verdict.

In response to nine specific written questions from the court, the jury found that Moore had proved by “clear and convincing evidence” that Senate Majority PAC intentionally published a false and defamatory statement and “false information” about Moore. The jury also found that SMP published the untrue statement “with actual malice (that is, SMP knew that a statement was false or acted with reckless disregard as to whether a statement was false)”.

The verdict should be a wake-up call for the media and others who publish attack ads. Up to now, they have not had to worry a great deal about whether their attacks are true, any more than they flinch at spreading falsehoods to destroy the lives of their targets and their families.

This has been destructive to our system for many reasons. Many qualified people will not even consider running for office because they refuse to subject themselves to such scurrilous character assassination. The Alabama jury’s verdict can be seen as a clear message that the outside-the-Beltway population is fed up with the universal lies and character assassination. Prudent media and political players should take note.

When asked what message the media and others should take from this verdict, Moore’s lawyer, Baton Rouge attorney Jeffrey Wittenbrink, said he thinks this was a clear signal that the American people are “at the end of the rope when it comes to allegations of sexual impropriety that come years after the (alleged) fact and just in time to derail elections or confirmations.”

Moore told me in an interview that despite the verdict, he has not received an apology from anyone associated with Senate Majority PAC. Consistent with that lack of remorse or apology, as of the publication of this article, the defamatory Highway 31 ad is still available on YouTube.

Senate Majority PAC, of course, may elect to appeal. If so, it could regret its decision. If the case goes to the Supreme Court, there is a chance the court could do away with the obligation for public figures to prove actual malice. Many legal scholars and at least two current Supreme Court justices, Neil Gorsuch and Clarence Thomas, have urged such a reconsideration of the judge-invented malice requirement because, in the words of Justice White, “by leaving the lie uncorrected the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation.”

Trying to keep political actors honest is a Sisyphean task under the best of circumstances. But the Alabama jury’s verdict is a step in the right direction. A reversal of the judge-made malice standard would be an even greater step. Such a reversal might be bad for the dark-money crowd but would be good for the American people, liberals and conservatives alike.

Full disclosure: This writer was a West Point gymnastics teammate of Roy Moore from 1965 to 1969.

John Lucas is a practicing attorney who has tried and argued a variety of cases, including before the U. S. Supreme Court. Before entering law school at the University of Texas, he served in the Army Special Forces as an enlisted man and then graduated from the U. S. Military Academy at West Point in 1969. He is an Army Ranger and fought in Vietnam as an infantry platoon leader. He is married with five children. He and his wife now live in Virginia.