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Eleventh Circuit Rejects Roy Moore's Libel Suit Over "Banned from … Mall … for Soliciting Sex from Young Girls" / "One He Approached Was 14" Ad
From the long opinion in Moore v. Cecil, decided today by Judge Elizabeth Branch, joined by Judges Jill Pryor and Frank Hull:
In 2017, Roy Moore ran as the Republican nominee in a special election to fill an open seat for one of Alabama's United States senators. In the final weeks before the election, multiple news outlets reported that several women had accused Moore of inappropriate sexual conduct with them when they were young. Senate Majority PAC ("SMP") grabbed onto the news reports and ran a campaign ad that stated, among other things, in separate individual frames that (1) "'Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls,'" and (2) "[o]ne he approached 'was 14 and working as Santa's helper.'" [An underlying news report had "asserted that Moore approached Miller and told her she was pretty when she was 14 years old and working as Santa's helper and that Moore asked Miller out on dates two years late," so the argument appears to be that he had never approached a 14-year-old for sex. -EV] SMP ran the ad hundreds of times, and Moore eventually lost the election.
Moore sued SMP for defamation and false-light invasion of privacy under Alabama law, arguing in relevant part that the two statements above when read together created the false defamatory implication that he had solicited the 14-year-old girl working as Santa's helper for sex…. The jury found SMP liable for defamation and false-light invasion of privacy, and it awarded Moore $8.2 million in compensatory damages….
SMP appealed, and the Court of Appeals held in its favor:
Moore's case … involves an allegation of defamation-by-implication (or as Moore puts it, the statement that resulted from the juxtaposition of frames 2 and 3 of SMP's ad), not express defamation. {Moore's theory was that the statement in frame 2 that he "was actually banned from the Gadsden Mall … for soliciting sex from young girls," when combined with the statement from frame 3 that "[o]ne he approached 'was 14 and working as Santa's helper,'" falsely created "a new statement" that he solicited sex from Wendy Miller when she was 14 years old and working as Santa's helper.}
Defamation-by-implication is fraught with subtle complexities and is more nuanced than express defamation. "'Defamation by implication' occurs when a defendant juxtaposes a series of facts to imply a defamatory connection between them." Thus, "a defamation by implication stems not from what is literally stated but from what is implied."
Because the defamatory meaning is implied as opposed to explicitly stated, it necessarily follows that the challenged statement could have multiple meanings—some defamatory and some not. Accordingly, because the challenged statement in a defamation-by-implication case has multiple meanings, the question that necessarily follows is whether showing known falsity or reckless disregard of the falsity of the implied defamatory statement is enough to show the necessary intent to defame for purposes of the actual malice standard.
Although we have not addressed this question, several of our sister circuits have, and they have concluded that, in a defamation-by-implication case, showing that the defendant knew that the implied defamatory statement was false or acted with reckless disregard to its falsity alone is not enough to establish the necessary intent to defame. We agree. Unlike in express defamation cases, "in defamation-by-implication cases, showing known falsity [of the implication] alone is inadequate to establish an intent to defame" because the challenged statement "has defamatory and nondefamatory meanings," which means that we can "no longer presume with certainty that the defendant knew they were making a defamatory statement."
Accordingly, in a defamation-by-implication case, to show the necessary intent to defame inherent in the actual malice standard, the "plaintiff[] must show something that establishes [the] defendant['s] intent to communicate the defamatory [implied] meaning" or that the defendant acted with "reckless disregard for the defamatory [implied] meaning." Consequently, in a defamation-by-implication case, the plaintiff must show by clear and convincing evidence not only (1) that the defendant knew of or recklessly disregarded the falsity of the implied defamatory statement, but also (2) that the defendant "inten[ded] to communicate the defamatory meaning" or recklessly disregarded the defamatory meaning—i.e., "the defendant[] knew that the defamatory meaning was not just possible, but likely, and still made the statement despite their knowledge of that likelihood." …
Consistent with the framework above, the jury in this case was instructed that in order to prove actual malice, Moore had to show by clear and convincing evidence that (1) SMP knew the implied statement in the ad was false or SMP recklessly disregarded its falsity (the falsity component of actual malice); and (2) SMP intended the ad to convey that Moore solicited sex from Miller when she was 14, or SMP recklessly disregarded that the ad conveyed the implication that Moore solicited sex from Miller when she was 14 (the intent component of actual malice). In other words, the jury was charged with determining whether, when SMP juxtaposed frames 2 and 3 back-to-back, SMP intended or recklessly disregarded that it was materially changing the meaning of the quotes to convey a new implied message about Moore that it knew was false and defamatory….
SMP contends that Moore failed to prove by clear and convincing evidence that it intended or recklessly disregarded that its ad implied that Moore solicited sex from Miller when she was 14 years old and working as Santa's helper at the Gadsden Mall. Moore, on the other hand, argues that he established SMP's intent to defame based on three facts: (1) the jury's disbelief of the SMP witnesses' testimony that they did not intend the implication or otherwise believe that the ad implied that Moore solicited sex from 14-year-old Miller; (2) the ad itself; and (3) the fact that SMP vetted the ad before publishing it, which necessarily confirmed that Miller never said Moore solicited her for sex. After careful review, we conclude that none of the three facts relied on by Moore give rise to the necessary intent to defame for actual malice….
[1.] Every SMP witness who took the stand testified that he or she did not intend for the ad to imply that Moore solicited sex from Miller when she was 14 years old…. The jury, however, was entitled to disbelieve this testimony, and given the district court's instructions—that Moore had to "prove that SMP intended [in the ad] to convey that Moore solicited sex from Wendy Miller when she was 14, or SMP recklessly disregarded the possibility" that the ad conveyed this implication—and the jury's verdict in favor of Moore, we agree that the jury must have discredited and rejected the SMP witnesses' testimony….
Even so, the jury's rejection of the SMP witnesses' testimony about the intent of the ad is not itself clear and convincing evidence of actual malice. The Supreme Court has explained that "discredited testimony is not considered a sufficient basis for drawing a contrary conclusion" and finding actual malice. Accordingly, the fact that the jury disbelieved the SMP witnesses' testimony that SMP did not intend for the ad to imply that Moore solicited sex from Miller and that SMP did not view the ad as making this implication "does not establish that [SMP] realized [(i.e., intended) or recklessly disregarded that the implication existed] at the time of publication." In short, to establish actual malice by clear and convincing evidence, Moore needed more evidence than just the jury's disbelief of SMP's witnesses to establish that SMP intended the defamatory implied meaning in the ad or acted with reckless disregard to the defamatory implied meaning.
[2.] Next, Moore argues that SMP's intent or recklessness can be inferred from the ad itself. According to Moore, "the phrase 'One he approached'" in frame 3 "necessarily refers back" to the statement in frame 2, that "'Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls.'" Thus, he maintains that in reading these two frames together "[i]t is impossible that an average viewer of that ad would not believe that Moore solicited sex from Wendy Miller when she was 14." In other words, Moore contends that the defamatory implication is the "most obvious message of the ad," and SMP therefore must have intended the defamatory implication or otherwise acted with reckless disregard to it.
Moore's contention, however, conflicts with the Supreme Court's directives concerning actual malice…. [T]he actual malice standard is deliberately subjective. As a result, "constitutional malice does not flow from a finding … [that] the [ad] may be capable of supporting the impression [the plaintiff] claims." This principle holds true even if the "impressions were clear and unescapable." "Simply because a statement reasonably can be read to contain a defamatory inference does not mean" that "the publisher of the statement either intended the statement to contain such a defamatory implication or even knew the readers could reasonably interpret the statements to contain the defamatory implication."
To conclude otherwise would allow a defamation plaintiff to hold a defendant liable for defamatory implied statements negligently conveyed, rather than only for defamatory implied statements the defendant knowingly intended to convey or recklessly conveyed, which would eviscerate the First Amendment protections that the Supreme Court established in New York Times and its progeny. Thus, although we agree that the statements in frames 2 and 3 of SMP's ad could convey the implication that Moore solicited sex from Miller when she was 14 and working at the mall as Santa's helper, that fact is not clear and convincing evidence that SMP intended that implication or recklessly disregarded that the ad conveyed that implication, which is the critical inquiry….
Moreover, we cannot ignore that SMP included citations to the news articles that it relied on in the ad itself. "Where a publisher gives readers sufficient information to weigh for themselves the likelihood of [a statement's] veracity, it reduces the risk that readers will reach unfair (or simply incorrect) conclusions, even if the publisher itself has." Thus, SMP's inclusion in the ad of citations to the news articles on which it relied not only allowed viewers to verify the ad's contents (or any resulting implications from the ad as a whole) but also further undermines Moore's contention that the ad itself demonstrates actual malice.
{
[I]n another case, … [t]here might be circumstances where the publication itself could demonstrate the requisite intent to defame even when, as here, the defendant denies such an intent. We need not determine what those circumstances might be, because the ad before us does not allow for such an inference.}
[3.] Lastly, Moore contends that SMP must have intended or recklessly disregarded that the ad conveyed the defamatory implication because SMP vetted or fact-checked the ad before publishing it. Moore asserts that because SMP's research team "read all of the articles" cited in the ad and attempted to ensure the ad's accuracy, and none of the articles supported the assertion that Moore solicited a 14-year-old girl working at the mall for sex, it necessarily follows that SMP intended, or recklessly disregarded, the ad's defamatory implication….
But the fact that SMP did not {fact-check the implied assertion that Moore solicited sex from Miller when she was 14 years old and working as Santa's helper} … does not show that SMP intended or recklessly disregarded that the implied statement in the ad. Indeed, one could argue that, given SMP's detailed fact-checking of the other statements in the ad, SMP's failure to fact-check the veracity of the implication shows that SMP did not know that the implication even existed.
At most, {SMP's thorough vetting process} shows that SMP made a poor choice of words in frame 3—a negligent error at best. And a negligent error is not a basis for a finding of actual malice.
In sum, Moore points to, and our independent review has revealed, no other evidence in the record showing that SMP intended or recklessly disregarded that its ad implied that Moore solicited sex from Miller when she was 14 and working as Santa's helper. Because the evidence discussed above is inadequate to support a finding of the necessary intent to defame for purposes of actual malice in a defamation-by-implication case, Moore's defamation and false-light claims necessarily fail.
{Because we conclude that the record evidence is insufficient to establish the intent component of the actual malice standard, we do not reach whether Moore established that SMP knew or recklessly disregarded that the implied statement was false.}
{Because the actual malice standard is the same for defamation and false-light invasion of privacy claims brought under Alabama law, the district court below performed one actual malice analysis for both claims, and the parties on appeal present a single actual malice argument for both claims. So we too perform one actual malice analysis for both claims.}
