The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The court allowed the case to go forward in an opinion on June 2: Press accounts, on which defendant political organization (the Senate Majority PAC) was generally entitled to rely, had said that (1) Moore "had been banned from the mall because he repeatedly badgered teen-age girls" and that (2) he had told a 14-year-old girl at the mall "she looked pretty." But the organization had apparently juxtaposed the two quotes, in a way that may have been suggested that he solicited sex from a 14-year-old girl:
- "Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls." –New American Journal, 11/12/2017
- "One he approached 'was 14 and working as Santa's helper.' " –AL.com, 11/13/2017
The court had concluded that,
[V]iewing the evidence in the light most favorable to Moore, … telling viewers that Moore was banned from the mall for soliciting sex from a 14-year-old Santa's Helper is more stinging than telling viewers that Moore complimented a 14-year-old girl on her appearance or telling them more generally that Moore was banned from the mall for soliciting young girls. The jury must decide whether the substance or sting of the juxtaposed ad was justified.
The jury apparently agreed, giving a verdict for Moore after getting instructions based on that legal conclusion. The 14-year-old girl had "told the Washington Post that when she was 14 and working as Santa's Helper, 'Moore told her that she looked pretty' then when she was 16, 'he began asking her out on dates in the presence of her mother at the photo both.'" And I take it the jury took the view that there's a sufficient difference between a 30-year-old's asking out a 16-year-old—which I expect many would disapprove of, but is perfectly legal in most states, including Alabama, even if the goal is sex—and a 30-year-old's soliciting sex from 14-year-old, which was a crime both then and now.