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ATLANTA (CN) — An 11th Circuit panel on Friday unanimously overturned an $8.2 million jury verdict in favor of former Alabama Chief Justice Roy Moore in his defamation lawsuit against a Democratic super PAC, ruling the Republican politician failed to show the group knew there were implied falsehoods in a TV ad recounting sexual misconduct accusations against the 2017 U.S. Senate candidate.
Moore claimed an advertisement created by the Senate Majority PAC (SMP) implied he solicited sex from Wendy Miller, a then-14-year-old girl who was working as a Santa’s helper at a shopping mall.
The ad, which the group helped air on Alabama television stations 533 times over 10 days, showcased a series of quotes about claims of sexual misconduct against Moore. The ad began: “What do people who know Roy Moore say?” It continued with the statements: “Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls” and “One he approached was 14 and working as Santa’s helper.”
Moore sued over defamation and false light invasion of privacy, arguing the combination of the two statements falsely created a new statement that he solicited sex from Miller. A news story cited in the ad said Moore told Miller she was pretty when she was 14 and asked her out on a date when she was 16, but did not say he asked her for sex.
On Friday, the 11th Circuit found the PAC made “a negligent error at best” with its “poor choice of words” in the ad, falling short of the “actual malice” standard established by the U.S. Supreme Court in its landmark 1964 ruling in New York Times v. Sullivan.
The Atlanta-based appeals court sided with other circuit courts in finding that a claim of defamation by implication requires Moore to show that SMP intended the ad’s defamatory implied meaning or acted with “reckless disregard to the defamatory implied meaning.”
“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,” U.S. Circuit Judge Elizabeth Branch wrote on behalf of the three-judge panel.
The panel also noted SMP’s thorough fact-checking of the statements in the ad and its inclusion of citations to the news articles it relied on.
“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,” the Donald Trump appointee added.
The 11th Circuit sent the case back to Alabama federal court so judgment can be entered in favor of SMP.
Moore, a former chief justice of the Alabama Supreme Court, lost the 2017 Senate race to Democrat Doug Jones after nine women came forward to accuse him of improper conduct when they were teenagers in the 1970s and 1980s.
Moore did not immediately respond to a voicemail requesting comment on the ruling Friday morning.
Jeffrey Wittenbrink, a Baton Rouge, Louisiana-based attorney representing Moore, told Courthouse News on Friday that his client is weighing whether to pursue en banc review of the case from the full 11th Circuit or to instead take the case up to the U.S. Supreme Court.
Wittenbrink said the outcome of the appeal is “obviously disappointing” but they “will continue to slog forward.”
“Any person watching the video that was produced could not mistake the intent of the producers," he added. “It’s excellently crafted to do exactly what it did.”
Elias Law Group, which represents SMP in the case, celebrated the decision in a statement released Friday.
“This ruling is a total vindication of Senate Majority PAC and a complete repudiation of Roy Moore’s pathetic seven-year effort to weaponize the courts to launder what little remains of his reputation,” said Elias Law Group partner Ezra Reese.
Reese called Moore a “disgusting creep” and added: “Throughout this entire ordeal, Senate Majority PAC never wavered, never apologized for telling the truth and refused to settle or let a meritless verdict stand. Democracy is stronger because Senate Majority PAC held the line rather than allowing a politician to bully them into silence.”
Branch was joined in the opinion by Senior U.S. Circuit Judge Frank Hull, a Bill Clinton appointee, and U.S. Circuit Judge Jill Pryor, an appointee of Barack Obama.
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