Moore v. Lowe
| Docket Number | Case No. 4:20-cv-124-CLM |
| Decision Date | 11 March 2022 |
| Citation | 591 F.Supp.3d 1087 |
| Parties | Roy S. MOORE, Plaintiff, v. Tiana LOWE, Jerry Dunleavy, Timothy Carney, Phillip Klein, Brad Polumbo, the Washington Newspaper Publishing Company, LLC, Media D.C., Clarity Media Group, and Philip Anschutz, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Larry Klayman, Pro Hac Vice, Klayman Law Group PA, Boca Raton, FL, Melissa Lee Isaak, The Isaak Law Firm, Roy Stewart Moore, Foundation for Moral Law, Montgomery, AL, for Plaintiff.
Daniel G. Bird, Pro Hac Vice, Daniel S. Severson, Pro Hac Vice, Jacob E. Hartman, Pro Hac Vice, Joseph L. Wenner, Pro Hac Vice, Joshua D. Branson, Pro Hac Vice, Mark Charles Hansen, Pro Hac Vice, Kellogg, Hansen, Todd, Figel & Frederick PLLC, Washington, DC, Samuel H. Franklin, John G. Thompson, Jr., Jonathan R. Little, Lightfoot Franklin & White LLC, Birmingham, AL, for Defendants.
Roy Moore sued several defendants associated with the Washington Examiner , a conservative online newspaper, for defamation per se, defamation by implication, and intentional infliction of emotional distress. At its core, Moore's suit alleges that these defendants libeled him by falsely reporting on sexual misconduct allegations.
Earlier, the Court granted the defendants’ motion to dismiss Moore's First Amended Complaint and allowed Moore to file another complaint that corrected his pleading deficiencies. (Docs. 49, 50). So Moore filed a Second Amended Complaint (doc. 51), and the defendants renewed their motion to dismiss. (Doc. 55). For the reasons below, the Court grants in part and denies in part the renewed motion to dismiss.
On a motion to dismiss, the Court accepts the plaintiff's well-pleaded allegations as true and makes all reasonable inferences in his favor. Crowder v. Delta Air Lines , 963 F.3d 1197, 1202 (11th Cir. 2020). The Court may consider exhibits attached to the complaint. Grossman v. Nationsbank, N.A. , 225 F.3d 1228, 1231 (11th Cir. 2000). And it may consider documents attached to a motion to dismiss if they are "central to the plaintiff's claim" and "authenticity is not challenged." SFM Holdings, Ltd. v. Banc of Am. Secs., LLC , 600 F.3d 1334, 1337 (11th Cir. 2010).
Jeff Sessions resigned his Senate seat in 2017 to become Attorney General of the United States. (Doc. 51 at 3 ¶ 14). Roy Moore ran in the special election to replace Sessions. (Id. ). After winning the Republican nomination, Moore squared off against Democratic nominee Doug Jones in the special election. (Id. at 4 ¶ 16).
Shortly before the special election, the Washington Post published an article detailing allegations against Moore made by four women: Leigh Corfman, Wendy Miller, Debbie Gibson, and Gloria Deason. (Doc. 31-7).1 Corfman alleged that when she was 14 years old, then 32-year-old Moore "took off her pants and shirt," "touched her through her bra and underpants," and "guided her hand to his underwear." (Id. at 5). The other three women said that "Moore pursued them when they were between the ages of 16 and 18 and he was in his early 30s," but they did not allege "any sort of relationship or sexual contact." (Id. at 1).
Four days later, the Wall Street Journal reported that a "[f]ifth woman," Beverly Nelson, came forward to accuse "Moore of sexual misconduct." (Doc. 31-20 at 2).2 The Journal report said that, at a press conference, Nelson alleged that Moore "groped her breasts and tried to initiate sex with her in his car when she was a 16-year-old waitress." (Id. ). According to a transcript of the press conference, Nelson said that Moore locked her inside his car with him, "began squeezing [her] neck attempting to force [her] head onto his crotch," and "was also trying to pull [her] shirt off." (Doc. 31-19 at 4).3 She said that Moore ignored her "yelling at him to stop." (Id. ). And she added that she "was terrified" and "thought that he was going to rape [her]." (Id. ).
A few days later, the New York Times reported that "four more women came forward" with accusations against Moore: Becky Gray, Tina Johnson, Gena Richardson, and Kelly Harrison Thorp. (Doc. 31-22). 4
Those women "complained of being groped, forcibly kissed[,] or subjected to unwanted advances." (Id. at 2). Other sources alleged that authorities banned Moore from the mall in Gadsden, Alabama, because of unwanted advances towards underage girls. .5
Moore denied the allegations and has labeled them "politically motivated" fabrications. (Doc. 51 at 4 ¶ 16).
Doug Jones won the 2017 special election. The same seat was up for election in 2020, and Moore decided to run again. In the weeks just before his June 20, 2019, announcement, the Washington Examiner (a conservative online newspaper) began publishing opinion and news articles that recounted the 2017 allegations against Moore. (Id. at 7 ¶ 31). The Court now turns to those articles.
(Id. ).
The next day, Lowe published another piece in the Examiner titled, "Let's examine all the reasons Roy Moore is a terrible human being." (Id. at 9).7 Lowe labeled Moore as "an indefensible person, someone whose record disqualifies him from any position in public life," "a despicable person," "homophobic," and "probably racist." (Id. at 9–10).
Lowe wrote that the "sexual misconduct allegations" against Moore are "damning if true" and "overwhelmingly likely to be true." (Id. at 9). She wrote that Corfman alleged that, when she was 14 years old, Moore initiated "two intimate encounters with her." (Id. ). She wrote that Nelson "accused Moore of attempting to rape her in a car when she was 16 years old." (Id. ).
She wrote that Miller "accused Moore of hitting on her while she was under the age of consent in Alabama." (Id. ). She added that "[a] handful of other women independently alleged having intimate relationships with Moore in their teens." (Id. ). And finally, she stated that "multiple people allege that Moore was banned from the Gadsden Mall, his reported playground for picking up teen girls." (Id. ).
After this article came out, Moore's attorney sent a retraction demand to Lowe and Philip Klein (Executive Editor of the Washington Examiner ) and claimed that the article was "highly defamatory." (Id. at 12). They didn't respond or retract the article. (Doc. 51 at 12 ¶ 45).
The same day that Moore announced his candidacy, the Examiner published a news article by Jerry Dunleavy titled, "Roy Moore says he will run for Senate again in 2020." (Doc. 51-1 at 16).8 Dunleavy reported that "a number of women came forward during [Moore's 2017] campaign to claim that Moore had sexually assaulted them," and added that "[t]wo of the accusers were underage at the time of the alleged incidents." (Id. ). After commenting on conservative opposition to Moore's 2020 candidacy, Dunleavy summarized the 2017 accusations against Moore, which included saying that Nelson alleged that "Moore attempted to rape her in a car." (Id. at 17).
A month later, the Examiner published another Dunleavy news article titled, "Watchdog files complaint over possible forged signatures on documents from Roy Moore charity." (Id. at 20).9 The article focused on a complaint against "the Foundation for Moral Law," which it described as "a Christian nonprofit activist group founded by accused sexual predator and current Senate candidate Roy Moore." (Id. ). Dunleavy wrote that "a number of women came forward during [Moore's 2017 campaign] to claim that Moore had sexually assaulted them, including two accusers who were underage at the time of the alleged incidents." (Id. at 21).
The next month, Lowe wrote another piece for the Examiner titled, "Laura Loomer may be a laughing stock, but it's pretty unfunny when Republicans back her." (Id. at 24).10 In the article, Lowe called Moore a "credibly accused sexually pedophilic predator." (Id. at 25).
And a few months later, the Washington Examiner published an opinion piece by Brad Polumbo titled, (Id. at 27).11 The article began by calling Moore "the former judge and alleged sexual predator." (Id. ). And after discussing conservative opposition and detailing Alabama voters’ "unfavorabl[e]" views of Moore, Polumbo added that Moore "has been credibly accused of sexual misconduct by multiple women who were just teenagers at the time." (Id. at 28).
More than four years after the initial Washington Post article, and more than two years after the Washington Examiner articles at issue here, Moore's accusers maintain that they told the truth, and Moore maintains that he was falsely accused for political reasons.
In his three complaints, Moore asserts three claims against nine defendants: (1) defamation per se; (2) defamation by implication; and (3) intentional infliction of emotional distress (i.e. , outrage). (Docs. 1, 5, 51). Moore...
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