Below is my column in USA Today on the last remaining promise for Roy Moore to fulfill from his campaign: his promised defamation lawsuit. Unless he and his lawyers were using the pledge to sue as a deflection from the merits of the allegations, it is time for Moore to make good on the promise and file. Of course, that will subject him to depositions and discovery but, if he is telling the truth, he has little to fear. In the meantime, I discussed how Gloria Allred suggested that her client will also sue for defamation. That would also be welcomed, though Allred will have to significantly improve her legal performance for an actual lawsuit as opposed to her disastrous press conference. Beverly Young Nelson has said that the lawsuit will definitely happen.
Here is the column:
After weeks of intense and bitter debate, Alabama voters finally rendered a verdict on the political ambitions of Roy Moore, one of the most divisive figures in the history of U.S. politics. Accused by nine women of assaulting or pursuing them when they were girls as young as fourteen, Moore provided a defining moment for voters who had to choose between the moral high ground and the political base. It is now time for a different verdict. As alleged victims began to come forward in the campaign, the former Alabama Chief Justice announced that he would sue The Washington Post for defamation. Now that the campaign is over, Moore can finally prove that he was not lying about either his past or this intent to clear his name.
However, if he sues as promised, he will collide with an infamous case from Alabama from 1964 involving an equally divisive and odious political figure.
For full disclosure, I have been a long-standing critic of Moore — years before any allegations of sexual abuse. Moore was removed from the bench for defying the most basic principles of constitutional law. However, Moore did not take particular offense to being called vehemently anti-homosexual or anti-Muslim. He virtually ran on those labels. Instead he attacked all of these women and witnesses as liars and insisted that he never dated young girls, let alone assaulted them.
Moore’s pledge to sue however seemed less and less believable over the course of the campaign. Such a lawsuit would subject Moore to discovery and depositions on these allegations. Yet, after the women came forward, Moore virtually disappeared from the campaign trail and only sat for a few, low-risk interviews like his interview with a 12-year-old girl. Moore knows that, if he sues, he will not have a starry-eyed middle schooler asking about the job of a Senator, but steely eye litgtators asking about specific allegations of his pursuing young girls when he was a prosecutor in his thirties.
If he sues, Moore would be the latest chapter in a dark history of Alabama defamation actions. Roughly 50 years ago, the Supreme Court decision in New York Times v. Sullivan, where the Court laid out the standard for public officials (and later extended to public figures) in suing critics. In reality, not only would Moore face a daunting challenge in suing The Washington Post under this standard, but the standard was created precisely for this type of politically motivated threat of litigation.
The case focused on an advertisement (above) that appeared in the New York Times referring to the abuses of civil rights marchers and claimed that Martin Luther King had been arrested seven times. (He had been arrested four times.) Although not mentioned, Montgomery Public Safety commissioner, L. B. Sullivan sued for defamation and punitive damages. His lawsuit was part of a pattern of such actions by segregationists to use state courts to bleed Northern media to deter their coverage of the Freedom Marchers. Sullivan won under Alabama law in a highly dubious state preceding that awarded $500,000.
The Supreme Court recognized the danger of such civil liability in creating a chilling effect on reporters and their companies in the coverage of political figures. Imposing a high standard for proof of defamation, Justice William Brennan sought to give the free press “breathing space” to carry out its key function in our system. The court’s most famous Alabamian, Hugo Black (who served as Senator from Alabama before joining the court), added that Alabama politicians were using libel actions to “threaten the very existence of an American press” and “this case emphasizes the imminence and enormity of that threat.”
The “actual malice” standard requires a showing that the newspaper published a false report with either actual knowledge of its falsity or a reckless disregard of the truth. In the Moore coverage, the Washington Post had multiple alleged victims and supporting witnesses who were identified by name in its coverage. Witnesses include former security guards who have alleged that Moore was such a menace to young girls that he was effectively on a watch list at the local mall and cheerleading events. Moore has not threatened these witnesses, only media. It also includes witnesses from his neighborhood and work who have said that Moore was notorious for his pursuit of young girls. This factual foundation is comfortably above of the standard set out in New York Times v. Sullivan.
Moore v. The Washington Post holds obvious analogies to New York Times v. Sullivan.Alabama is once again ground zero in a national debate over equal rights and prejudice. If Moore seems to have striking similarities to Sullivan, he has too few similiaties to Black. Black came from a small-town practice like Moore. He was raised in a segregated South and was himself a member of the Ku Klux Klan. However, Black came to renounce the Klan and prejudices as a politician and jurist. While a textualist, Black emerged as one of the court’s greatest advocates for civil liberties. Rather than rally crowds with regressive and divisive rhetoric, Black sought to transcend the demons that plagued his youth in Alabama — culminating in his contribution to New York Times v. Sullivan.
Now Alabama is set for another major defamation lawsuit involving a controversial political figure. One thing is already established. Either nine women (and a host of supporting witnesses) are shameless liars or Moore is. It is time to find out who. It is time for Moore to fulfill his promise and file his lawsuit.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley.