DOCUMENT 88

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.

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ RULE 12(b)(6) MOTION TO

DISMISS

Defendants’ motion proceeds from two demonstrably incorrect premises. First,

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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Committee”) failed to conduct an adequate investigation before repeating these falsehoods—

must be accepted as true.

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-

year-old assistant district attorney.

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

sexual impropriety. Id. ¶ 13.

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.

The Moore Campaign Committee doubled down on its candidate’s defamation of

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

as to the truth of Ms. Corfman’s account. Id. ¶ 94.

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.

Pow, 301 So. 2d 55, 63-64 (Ala. 1973).

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I. MS. CORFMAN’S COMPLAINT STATES A DEFAMATION CLAIM.

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

as special damages—material losses capable of measurement with money—are alleged. Id. at

18. If a statement is reasonably capable of defamatory meaning, the jury decides whether it was

defamatory. Camp v. Yeager, 601 So. 2d 924, 926 (Ala. 1992).

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

“Satanists.” Id. ¶¶ 97(a)-(h).

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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).

II. THE FIRST AMENDMENT DOES NOT PROTECT DEFENDANTS’

DEFAMATORY STATEMENTS.

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

First Amendment when it is defamatory and made with “actual malice.”1

1
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.

Ms. Corfman’s status as a limited purpose public figure is irrelevant to Defendants’

motion to dismiss; Ms. Corfman has pled facts sufficient to state a claim even assuming that she

is a limited purpose public figure as Defendants assert.2

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.,

2008 WL 370903, at *2 (M.D. Ala. 2008).

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

Campaign Committee was reckless in making these statements.” Id. ¶ 94.

Ms. Corfman’s allegations must be accepted as true on a motion to dismiss, Crosslin v.

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

considered to have been made with actual malice”).

B. The First Amendment Does Not Protect Defendants’ Defamatory Statements.

Defendants’ argument that “higher deference” is accorded speech in a political campaign

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

figures and therefore test did not apply).

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.

Id. at 342, 347-48.

III. THE SO-CALLED “SELF-DEFENSE” PRIVILEGE DOES NOT PROTECT

DEFENDANTS’ DEFAMATORY STATEMENTS.

Nor can Defendants avoid liability by asserting that their defamatory statements are

protected by a common law qualified privilege of self-defense. Mot. at 5-6.

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As an initial matter, Defendants cite no Alabama precedent for a self-defense privilege in

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

party raises undecided legal issues).

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

reckless disregard for the truth.”).

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

3
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

brand the accusations as false and calumnious.”) (emphasis added).

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

F. Supp. 3d at 142 (on motion to dismiss, “Defendant’s allegedly defamatory self-defense

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

Defendants’ motion to dismiss.4

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss should be denied.

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,

February 20, 2018 /s/ Melody H. Eagan

One of the Attorneys for
Plaintiff Leigh Corfman

Of Counsel: Pro Hac Vice Applications Pending:

Harlan I. Prater IV Neil K. Roman
hprater@lightfootlaw.com nroman@cov.com
Melody H. Eagan Megan L. Rodgers *
meagan@lightfootlaw.com mrodgers@cov.com
Jeffrey P. Doss COVINGTON & BURLING LLP
jdoss@lightfootlaw.com The New York Times Building
LIGHTFOOT, FRANKLIN & WHITE LLC 620 Eighth Avenue
The Clark Building New York, New York 10018
400 20th Street North (212) 841-1221 (telephone)
Birmingham, Alabama 35203 * Silicon Valley Office
(205) 581-0700 (telephone)
(205) 581-0799 (facsimile)

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.

/s/ Melody H. Eagan

OF COUNSEL

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