Moore v. Cecil

109 F.4th 1352

Roy S. MOORE, Plaintiff-Appellant, v. Guy CECIL, Priorities USA, Bully Pulpit Interactive LLC, Defendants-Appellees,Senate Majority Pac, et al., Defendants.

No. 22-13406

Non-Argument Calendar

United States Court of Appeals, Eleventh Circuit

Filed: July 31, 2024

Appeal from the United States District Court for the Northern District of Alabama, D.C. Docket No. 4:19-cv-01855-CLM

Jeffrey Scott Wittenbrink, Wittenbrink Law Firm, Baton Rouge, LA, Talmadge Butts, Roy Stewart Moore, Foundation for Moral Law, Montgomery, AL, for Plaintiff-Appellant.

William B. Stafford, Elias Law Group, LLP, Seattle, WA, Marc Erik Elias, Christina A. Ford, Elias Law Group, LLP, Washington, DC, Barry Alan Ragsdale, Dominick Feld Hyde, PC, BIRMINGHAM, AL, for Defendants-Appellees Guy Cecil, Priorities USA, Bully Pulpit Interactive LLC.

Before Newsom, Branch, and Anderson, Circuit Judges.

PER CURIAM:

Roy Moore appeals from the district court's dismissal of several defamation claims he asserted in a civil suit against the defendants. The dismissed claims centered around (1) several tweets posted on the social media platform Twitter¹ by defendant Guy Cecil, (2) a press release issued by Cecil, on behalf of defendant Priorities USA, after Moore lost a special election for a United States Senate seat in Alabama in 2017, and (3) a digital ad run during the election. He argues that the district court erred in dismissing the tweet-based defamation claims for lack of personal jurisdiction and in dismissing the press release and digital ad defamation claims for failure to state a claim. After review, we affirm.

I. Background

In 2017, Jeff Sessions resigned as one of Alabama's United States Senators, and Moore secured the Republican Party's nomination for the special election to fill the empty seat. Doug Jones was the Democratic Party nominee. During the final few weeks leading up to the special election, multiple news media outlets reported that several women had come forward accusing Moore of improper conduct with them in the late 1970s and early 1980s when the women were ages 14 to 18.

Specifically, these reports indicated that Moore, then in his 30s, encountered young girls at a local Alabama shopping mall, and he asked them out. One of these women, Leigh Corfman, alleged that, when she was 14, Moore drove her to his home, took off her clothes and his clothes, and then "touched her over her bra and underpants . . . and guided her hand to touch him over his underwear." A second woman, Beverly Young Nelson, accused Moore of giving her a ride home from her job when she was 16, but when she got in his car, he proceeded to "grop[e]" her and "put[ ] his hands on [her] breasts." Text of Beverly Young Nelson's Accusation Against Roy Moore, N.Y. Times (Nov. 13, 2017), https://www.nytimes.com/2017/11/13/us/politics/text-beverly-young-nelson-statement.html [https://perma.cc/Y6XX-XR56].² When she tried to fight him off and open the car door, he locked the car doors and "he began squeezing [her] neck attempting to force [her] head onto his crotch" and tried "to pull [her] shirt off." Id. He eventually gave up and left her in the parking lot, and she quit her job the next day. Id. Moore denied all of the allegations. He ultimately lost the election to Jones.

A. The Complaint

In 2019, Moore filed a civil complaint in the Northern District of Alabama against Cecil, nonprofit company Priorities USA, marketing services company Bully Pulpit Interactive LLC, the Senate Majority PAC (SMP), and others, alleging, among other matters, claims under Alabama law for defamation. The defamation claims all centered around statements the defendants made involving the allegations of Moore's improper sexual conduct with young girls, and can be grouped into three categories: (1) tweets by Cecil; (2) a press release by Cecil on behalf of Priorities U.S.A.; and (3) a digital ad by Priorities U.S.A. and Bully Pulpit.

1. The Tweets

Moore asserted that four tweets in December 2017 by Cecil, a staunch Democrat and the chairman of Priorities U.S.A., were defamatory. The first of these tweets was in response to a thread started by Kellyanne Conway, then advisor to President Trump, in which she commented on the media's narrative concerning sexual assault allegations against the then-Senator for Minnesota, Al Franken, a Democrat. Cecil responded to this thread by tweeting "Breaking: Woman who supports a sexually assaulting pedophile attempts to get the upper hand. Fails miserably." While Cecil's tweet did not mention Moore, Cecil later, in the context of this lawsuit, admitted that his tweets referenced the accusations against Moore.

In another tweet, Ward Baker, a Republican strategist, criticized Cecil's statement that certain senatorial candidates for the Democratic Party were "game changers." In response, Cecil tweeted "It must be a sad life when you sit around thinking of twitter fights to start. Also, a Republican pedophile is running in Alabama, so, you know, there might be more important things to focus on."

In the third tweet, following the announcement of Jones as the winner of the special election for Sessions's open seat, Cecil tweeted "To the @GOP, we will never forget you chose to support a child predator and we will hold you and every Republican associated with you accountable."

And finally, in another tweet, after the announcement of Jones as the winner, Ronna McDaniel, chairwoman of the Republican National Committee tweeted the following: "This election has always been about the people of Alabama. Doug Jones now answers to Alabamians, who overwhelming support President Trump's conservative agenda, not Schumer & Democrat party bosses who prioritize obstruction over tax cuts & economic revival for Americans." In response, Cecil tweeted "The woman who supported a predator who stalked young girls and assaulted them wants to talk about accountability. Got it."

2. The Press Release

Additionally, Moore asserted that a press release by Cecil, on behalf of Priorities USA, congratulating Senator-elect Jones was defamatory. The press release stated as follows:

Doug Jones has spent decades fighting for Alabamians and will now have the opportunity to continue to do so in the United States Senate. The people of Alabama sent a message tonight by putting country and state ahead of partisan politics and all Americans will now benefit from their decision. Unfortunately, the same cannot be said for Donald Trump and national Republicans, who supported a child molester who wants an America where being gay is a criminal offense, women shouldn't run for office, and African Americans are discriminated against at the ballot box, all in service to tax cuts for the rich. This is a stain on the Republican Party that will last forever. We will make sure of it. Priorities USA was proud to stand up for Doug and against a pedophile by partnering with Senate Majority PAC to run a $1.5 million digital campaign focused on persuading and mobilizing Alabama's voters, particularly those in the African American community, beginning even before the news broke about allegations against Roy Moore.

Moore asserted that because Cecil had no way of verifying the truth or falsity of the allegations against Moore, he "obviously had to have entertained doubts as to their truthfulness," but still asserted that Moore was a child molester and pedophile with reckless disregard, which demonstrated actual malice.

3. The Digital Ad

Finally, Moore asserted that an ad run on digital platforms, such as YouTube, was defamatory. The ad included a series of images with the following text overlay and voiceover:

If you don't vote, and Roy Moore—a child predator—wins, could you live with that? Your vote is public record, and your community will know whether or not you helped stop Roy Moore. Tuesday, December 12th, vote for Doug Jones for Senate. Paid for by Highway 31 and not authorized by any candidate or candidate's committee. www.highway31.com.

Moore maintained that the reference to him as a "child predator" was defamatory because it "typically applies to convicted sex offenders who are liable to reoffend." Further, he asserted that to reinforce this "dehumanizing term" the ad included at the end a stock photo of a young pre-pubescent girl. He maintained that the use of such "highly inflammatory language" demonstrated that "the defendants[ ] deliberately [chose] to defame him" despite the lack of supporting evidence, which demonstrated actual malice.

B. Procedural History

i. The initial motion to dismiss and the district court's ruling

The defendants filed a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(2) and (b)(6), asserting (1) that Moore lacked personal jurisdiction over Cecil, who had no connection to Alabama, and (2) Moore's complaint failed to state a claim for defamation because it failed to establish actual malice, which was required to succeed on a claim of defamation by a public figure. In support of the lack of personal jurisdiction part of the motion, the defendants submitted a sworn affidavit from Cecil in which he attested that he was not a resident of Alabama nor was it his domicile, he did not do business or "otherwise engage[ ] in any persistent course of conduct" in Alabama, he was not present in Alabama when he made the challenged statements nor were the people to whom he made the statements, and he had not consented to personal jurisdiction in Alabama.

Upon review, the district court concluded that it lacked personal jurisdiction over the tweet-based claims. The district court explained that because Cecil had no contacts with Alabama, Moore had to show that the court had specific jurisdiction over Cecil, which required him to show that the tweets were aimed at the forum state—i.e., Alabama. Analyzing each of the four tweets, the district court then concluded that none of the tweets were aimed at Alabama. Rather, it determined that in all of the challenged tweets "Cecil was engaged ...