Former Alabama Supreme Court Chief Justice Roy Moore, who served two nonconsecutive terms and experienced sanctions each time, made an appeal for the US Court of Appeals for the Eleventh Circuit to revive his lawsuit against Washington Examiner staff and owners. On Tuesday, Moore represented himself before a three-judge panel in Atlanta. He has alleged that articles published by the news outlet in 2019, which discussed previous accusations of sexual misconduct and did not respond to a retracting request he made, defamed him.
The lawsuit was largely dismissed in March 2022 by the US District Court for the Northern District of Alabama. The court concluded that Moore did not satisfactorily assert that the articles were false and defamatory. One statement in particular, Moore claims, was based on prior reports that relied on anonymous sources. This, he argued, amounted to action with malice, and thus demonstrated a lowering of the Examiner’s self-claimed standards.
The judges pondered the context of the statement, given its placement within an article that also used metaphorical language to describe Moore. They also considered the Examiner’s use of anonymous sources, citing a 2017 New York Times article that named a former mall employee accusing Moore of harassment.
Moore also took the opportunity to inform the court that he was serving as his own representative due to his counsel, Jeffrey S. Wittenbrink, undergoing open-heart surgery following a serious heart attack the night prior.
In 2017, nine women came forward alleging that a then 30-something-year-old Moore, decades previously, had made sexual advances toward them, including groping and kissing. Moore denied these accusations and labeled them political fabrications, citing his 40 years of public service as a prosecutor and judge, free from any claims of sexual misconduct.
Moore’s lost the 2017 Senate race to Democrat Doug Jones, despite running on Republican ticket. Following speculation that he would again challenge Jones in 2020, the Washington Examiner published a series of articles arguing Moore’s unfitness for public office while advocating for a different Republican candidate. Alabama finally elected Tommy Tuberville to replace Jones in Senate in 2020.
Moore had stepped down from the Alabama Supreme Court earlier in 2017 following a suspension for instructing Alabama judges not to comply with the US Supreme Court’s ruling that legalized same-sex marriage. Similarly, Moore had been removed from the same position in 2003, upon refusal to remove a Ten Commandments monument from the court building.
Judges queried the authors of the Examiner articles regarding a comment describing the accusations against Moore as overwhelmingly likely to be true. The lawyers representing the Examiner made a case that given the authors’ heavy reliance on prior press publications, and also the provision of links to them in the articles, readers wouldn’t misconstrue them as new fact findings but rather editorial commentary.
While Moore, recognizing his public figure status, doesn’t dispute the requirement to prove “actual malice” to win a defamation claim, he argued that the Eleventh Circuit should reverse the rising tendency for federal courts to increase the burden of proof on plaintiffs in defamation cases.
The case is Moore v. Lowe, where Moore will be particularly challenging given that statements from the Washington Examiner were derived from prior news reports.