Beruflich Dokumente
Kultur Dokumente
ELECTRONICALLY FILED
2/20/2018 4:58 PM
03-CV-2018-900017.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK
IN THE CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
LEIGH CORFMAN,
Plaintiff,
vs.
CIVIL ACTION NO. CV-2018-900017.00
ROY S. MOORE, and
JUDGE ROY MOORE FOR US SENATE,
Defendants.
Defendants wrongly claim that they not did not defame Plaintiff Leigh Corfman when they
called her allegations against Defendant Roy Moore “scurrilous,” “malicious,” and “a string of
lies,” and accused her of “immorality” and participating in a “liberal conspiracy” of “socialists
who want to change our way of life.” See, e.g., Compl. ¶¶ 2, 16, 53, 57, 80. And, second,
Defendants err in arguing that a political candidate and his campaign are absolutely privileged to
make such false statements if they make them in the context of a political campaign.
To the contrary, even accepting as true for purposes of this motion that Ms. Corfman is a
limited purpose public figure (and she is not, as she will demonstrate after fact development), the
law entitles Ms. Corfman to show that Defendants knew that their statements were false when
they made them or that they acted with reckless disregard for their falsity. On a motion to
dismiss, Ms. Corfman’s allegations—that Mr. Moore knew his defamatory statements about Ms.
Corfman were false and that Defendant Judge Roy Moore for US Senate (the “Moore Campaign
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STATEMENT OF FACTS
Ms. Corfman brought this action in response to Defendants’ defamatory attacks. Since
November 2017, Defendants have publicly denounced Ms. Corfman as a malicious and immoral
liar, among other things, after she truthfully answered reporters’ questions about Mr. Moore’s
sexual abuse of her in 1979, when she was a 14-year-old high school freshman and he was a 32-
For almost 40 years prior, Ms. Corfman confided this abuse only to family and friends.
Compl. ¶ 40.
That changed only in the fall of 2017, near the end of Mr. Moore’s campaign for the
United States Senate, when reporters from The Washington Post approached Ms. Corfman and
asked her about Mr. Moore. Id. ¶ 10. On November 9, 2017, The Post published an article
reporting Ms. Corfman’s experience along with those of three other women who likewise
disclosed that Mr. Moore had pursued them when they were teenagers and he was in his early
30s. Id. ¶ 12. Following publication of that article, five additional women accused Mr. Moore of
Mr. Moore immediately responded to the article by defaming Ms. Corfman, and since
then he has repeated and embellished these denigrations. See id. ¶¶ 14, 42-75. Beginning
November 10, Mr. Moore impugned Ms. Corfman’s veracity, motivations, and character on
nationally syndicated radio, id. ¶¶ 45-49, in broadcast campaign speeches, id. ¶¶ 50-51, in online
news sources, id. ¶ 54, on television, id. ¶ 55, and at campaign rallies, id. ¶ 62. Even after the
campaign, Mr. Moore filed in this Court, as part of an election challenge, an affidavit attacking
Ms. Corfman despite her having no relation to the fraud alleged in that case. Id. ¶ 68.
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Mr. Moore knew, should have known, or was reckless as to the truth of Ms. Corfman’s account
because he was the perpetrator of the sexual abuse she described. Id. ¶ 63.
Ms. Corfman. No fewer than five authorized representatives of the Moore Campaign Committee
defamed Ms. Corfman, including calling her account of Mr. Moore’s sexual assault a “most
outlandish” attack and accusing her of levying false charges in “an Academy Award
performance,” id. ¶¶ 77, 80-81, 83, 88, despite making little or no effort to investigate the truth
of Ms. Corfman’s account, id. ¶ 86. The Committee knew, should have known, or was reckless
ARGUMENT
“Dismissals under Rule 12(b)(6) should be granted sparingly, and such a dismissal is
proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of
the claim which would entitle him or her to relief.” Garrett v. Hadden, 495 So. 2d 616, 617
(Ala. 1986). This Court asks “whether, when the allegations of the complaint are viewed most
strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances
that would entitle her to relief.” Nance ex rel. Nance v. Matthews, 622 So. 2d 297, 299
(Ala. 1993). Even a public figure plaintiff can bring an action for defamation if the defendant
acted with constitutional malice, i.e. knowing that the statement was false or with reckless
disregard for its truth or falsity. New York Times Co. v. Sullivan, 376 U.S. 254, 283-84 (1964).
Whether a defendant acted with malice is a question of fact, Nelson v. Lapeyrouse Grain Corp.,
534 So. 2d 1085, 1095 (Ala. 1988), and cannot be decided on a motion to dismiss, see Bowling v.
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A defamation claim has three elements: that the defendant (i) published a false and
defamatory statement (ii) concerning the plaintiff (iii) to a third person. Atkins Ford Sales, Inc.
v. Royster, 560 So. 2d 197, 200 (Ala. 1990). A defamatory statement “tends to bring an
individual into public hatred, contempt or ridicule or charges an act odious and disgraceful in
society.” Butler v. Town of Argo, 871 So. 2d 1, 19 (Ala. 2003) (quoting Drill Parts & Serv. Co
v. Joy Mfg. Co., 619 So. 2d 1280, 1289 (Ala. 1993)). Written defamatory statements are
actionable per se. Id. at 16-17. Spoken defamatory statements are actionable per quod so long
18. If a statement is reasonably capable of defamatory meaning, the jury decides whether it was
Here, Defendants made written statements reasonably capable of bringing public ridicule
to Ms. Corfman. Mr. Moore, among other things, issued a written statement in The Washington
Post that ascribed false and defamatory motivations to Ms. Corfman, stating that her “allegations
are completely false and [part of] a desperate political attack,” and he also submitted an affidavit
to this Court characterizing Ms. Corfman’s accounts of his sexual abuse of her (as well as the
accounts of two other women) as “false and malicious attacks.” Compl. ¶¶ 14, 73. The Moore
Campaign Committee likewise accused Ms. Corfman of “the most outlandish attacks” in a
statement posted on its Twitter account. Id. ¶ 77. These accusations were reasonably capable of
causing public ridicule and in fact had that effect—following Defendants’ lead, the public
directed hateful and derogatory comments at Ms. Corfman, including on Twitter, calling her a
“14 year old whore,” a “bitch,” “one big liar,” “DIRTY,” and a “Paid Lying Whore” working for
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Defendants also made spoken statements sufficient to constitute defamation per quod
because Ms. Corfman suffered special damages in the form of lost wages. Id. ¶ 96. Mr. Moore,
among other things, falsely accused Ms. Corfman in a television interview of being “politically
motivated” in telling of her abuse. Id. ¶ 47. He repeatedly accused her of immorality, acting
with malice, and engaging in “dirty politics.” Id. ¶¶ 56-58, 62. The Moore Campaign
Committee called Ms. Corfman, a victim of sexual abuse, a “problem child.” Id. ¶ 82.
Defendants cannot avoid liability for their defamation by asserting, contrary to the
Complaint’s well-pleaded allegations, that the statements at issue are mere denials of
Ms. Corfman’s account. Mot. at 7. Moreover, even if they were so limited, as Chief Justice
Moore wrote, Defendants’ “accusations, while not always using the word ‘theft’” or, as here,
liar, “amount[] to false allegations,” and when adverse consequences resulted for Ms. Corfman,
these statements became “the very definition” of defamation. Wal-Mart Stores, Inc. v.
Smitherman, 872 So. 2d 833, 842 (Ala. 2003) (Moore, C.J., dissenting).
Defendants ask the Court for an unprecedented extension of First Amendment law,
arguing that statements made during a campaign are absolutely protected. Mot. at 4. That is not
the law in this or any other jurisdiction in the United States. Since New York Times, the Supreme
Court has consistently held that even speech directed at a public figure is not protected by the
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States have wide latitude to regulate defamatory statements directed at private citizens. Gertz
v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (“[S]o long as they do not impose liability
without fault, the States may define for themselves the appropriate standard of liability for a
publisher or broadcaster of defamatory falsehood injurious to a private individual.”).
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A. Even Assuming That Ms. Corfman Is A Limited Purpose Public Figure, Her
Allegations That Defendants Acted With Constitutional Malice Defeat The
Motion To Dismiss.
motion to dismiss; Ms. Corfman has pled facts sufficient to state a claim even assuming that she
Defendants’ theory that a limited purpose public figure can never bring an action for
defamation against a politician for statements made during a campaign has no basis in law. Mot.
at 7. A limited purpose public figure can bring a defamation claim by alleging that a defendant
acted with constitutional malice in making defamatory statements under the New York Times
standard. Little v. Breland, 93 F.3d 755, 756-57 (11th Cir. 1996) (limited purpose public figure
can bring defamation claim with a showing of “actual malice”); Cottrell v. NCAA, 975 So. 2d
306, 348-49 (Ala. 2007) (same). Malice in turn is established with a showing that the
defendant’s defamatory statement was made “with knowledge that it was false or with reckless
disregard of whether it was false or not.” Marous Brothers Const., LLC v. Alabama State Univ.,
Ms. Corfman’s allegations meet this “actual malice” standard. Ms. Corfman alleges that
Defendants “made each defamatory statement with knowledge that it was false or with reckless
disregard of whether it was false or not.” Compl. ¶ 105. As to Mr. Moore, Ms. Corfman alleges
that he “knew or should have known that [her] account is truthful because he was the perpetrator
in the events she described. At a minimum, Mr. Moore was reckless in making these
2
Although Ms. Corfman is not a limited purpose figure, it is premature for this Court to make
such a determination at the motion to dismiss stage. See, e.g., Marous Bros. Constr., LLC v.
Alabama State Univ., 2008 WL 370903, at *3-4 (M.D. Ala. 2008) (question “is more appropriate
for resolution at the summary judgment stage on the basis of evidentiary facts”); see also Cottrell
v. NCAA, 975 So. 2d 306, 333-42 (Ala. 2007) (setting forth multi-factor, fact-intensive test).
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statements.” Id. ¶ 63. Similarly, the Complaint alleges that “[t]he Moore Campaign Committee
knew or should have known that Ms. Corfman’s account is truthful. At a minimum, the Moore
Health Care Auth. of Huntsville, 5 So. 3d 1193, 1195 (Ala. 2008), and her allegations are
sufficient to defeat Defendants’ motion to dismiss, see, e.g., Southbark, Inc. v. Mobile Cty.
Comm’n, 974 F. Supp. 2d 1372, 1385 (S.D. Ala. 2013) (denying motion to dismiss because
allegation that “members of SouthBARK were bullies who harassed . . . employees . . . could be
and that the First Amendment permits the alleged defamatory statements here, Mot. at 6, ignores
settled law that political speech made with constitutional malice is defamatory. See, e.g.,
Garrison v. Louisiana, 379 U.S. 64, 75 (1964). Notably, the Alabama Supreme Court applied
the actual malice standard to statements concerning alleged ethical violations by a state senator
despite recognizing that the statements were “subject to the full measure of protection under the
First Amendment.” Sanders v. Smitherman, 776 So. 2d 68, 74 (Ala. 2000) (per curiam)
(affirming summary judgment for defendants because there was insufficient evidence of malice).
None of the cases cited by Defendants supports their argument that something other than
the constitutional malice standard applies to speech directed at limited purpose public figures.
Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 277 (1971) (applying actual malice test to
statements made about candidates for political office to “assure the unfettered interchange of
ideas”); Citizens United v. Fed. Elections Comm’n, 558 U.S. 310, 337 (2010) (reaffirming
New York Times actual malice test as appropriate First Amendment protection); Little v. Breland,
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93 F.3d 755, 758 (11th Cir. 1996) (affirming application of actual malice standard to limited
purpose public figure); Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1558 (4th Cir. 1994)
(citing New York Times standard, but holding that defendants were not limited purpose public
Put simply, there is no First Amendment protection for knowing or reckless falsehoods
like those alleged by Ms. Corfman. See Garrison, 379 U.S. at 75. In Garrison, the United States
Supreme Court considered whether the constitutional malice standard applies to criminal
defamation. Id. at 67. There, an elected district attorney suggested that judges on the Criminal
District Court were influenced by racketeering. Id. at 66. The Court found “no difficulty” in
applying the actual malice test because “the knowingly false statement and the false statement
made with reckless disregard of the truth, do not enjoy constitutional protection.” Id. at 75.
Finally, although Defendants contend that this approach might chill political speech, Mot.
at 4, the Supreme Court has squarely rejected that precise argument. Gertz, 418 U.S. at 342. In
Gertz, the Court acknowledged that “tension necessarily exists” between protecting a person’s
right to redress and the free-flowing exchange of political speech. Id. The actual malice
standard, the Court held, best provides the “breathing space” necessary to accommodate both.
Nor can Defendants avoid liability by asserting that their defamatory statements are
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a defamation action, and we are aware of none.3 This Court should decline to resolve a motion
to dismiss based on such an issue of first impression. See Roberts v. Meeks, 397 So. 2d 111, 114
(Ala. 1981) (courts should be “especially reluctant to dismiss a case on the pleadings” when a
Moreover, even if Alabama were to recognize the self-defense privilege, such a privilege
would be qualified and, like all qualified privileges for defamation claims, would not apply if
one acts with constitutional malice by knowingly or recklessly denying a true statement. See,
e.g., Ex parte Blue Cross & Blue Shield of Ala., 773 So. 2d 475, 478 (Ala. 2000) (holding that a
qualified privilege, there between insurer and insured, “suffices against only claims for innocent
or mistaken defamation”); Green v. Cosby, 138 F. Supp. 3d 114, 141 (D. Mass. 2015) (self-
defense privilege “does not permit a defendant to knowingly publish false statements of fact”);
Restatement (Second) of Torts § 593 (conditional privileges are abused if person “knows the
matter to be false” or “acts in reckless disregard as to its truth or falsity”); see also Neuros Co.,
Ltd. v. KTurbo, Inc., 698 F.3d 514, 519 (7th Cir. 2012) (“[Qualified] privilege, whatever its
precise boundaries, is forfeited if the statement is made with knowledge of its falsity or with
Even Conroy, a case on which Defendants rely, acknowledges that the self-defense
privilege is not available if the statement is not made in good faith, holding that the defamatory
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Defendants sole legal authority—a Fourth Circuit Court of Appeals decision—does not support
their theory. Foretich, 37 F.3d at 1559. Under the Fourth Circuit’s test, a reply in self-defense
must be reasonable and cannot include (i) “substantial defamatory matter that is ‘irrelevant’ or
‘non-responsive’” or (ii) “‘disproportionate’ to the initial attack” or (iii) be “addressed to too
broad an audience.” Id.; see also Fulton v. Atlantic Coast Line R. Co., 67 S.E. 2d 425, 429 (S.C.
1951) (qualified privileges “[do] not protect any unnecessary defamation”). Defendants’
statements do not meet this test.
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reply was not privileged because it “plainly overran the limits of self defence.” Conroy v. Fall
River Herald News Co., 28 N.E.2d 729, 730 (Mass. 1940) (“[O]ne has a right in good faith to
Significantly, at the motion to dismiss stage, where the Court must accept a plaintiff’s
allegations as true, Crosslin, 5 So. 3d at 1195, the Complaint makes allegations that take
Defendants’ statements outside the protection of any qualified privilege, i.e., that Defendants
knew, or recklessly disregarded, that their defamatory statements are false. See, e.g., Green, 138
responses . . . would necessarily be viewed as knowingly false . . . . This alone would negate the
good faith requirement regarding the self-defense privilege”); see also Wilson v. Am. Gen.
Fin. Inc., 807 F. Supp. 2d 291, 301 (W.D. Pa. 2011) (“Even if a conditional privilege may exist
in this case, the allegations set forth by plaintiff with respect to the statements . . . are sufficient
to support an abuse of the privilege. Therefore, judgment on the pleadings is not appropriate.”).
Here, Ms. Corfman’s allegation that Mr. Moore and the Moore Campaign Committee
knew, or recklessly disregarded, that their statements are false is all that is required to defeat
CONCLUSION
4
As in their venue motions, Defendants invoke the litigation privilege notwithstanding that it
does not protect defamatory statements irrelevant to the proceeding in which they are made, such
as those made by Mr. Moore in the context of his Election Fraud Lawsuit. To avoid repetition,
we address the litigation privilege in the opposition to the motion to change venue.
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Respectfully Submitted,
CERTIFICATE OF SERVICE
I certify that, on this 20th day of February, 2018, I filed the foregoing with the Clerk of
Court using this Court’s electronic filing system, which will provide a copy to all counsel of
record.
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