DOCUMENT 56

ELECTRONICALLY FILED
2/5/2018 4:48 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, )
)
v. ) CASE NO: CV-2018-900017.00
)
ROY S. MOORE, and )
JUDGE ROY MOORE )
FOR US SENATE, )
)
Defendants. )
)

DEFENDANTS’ 12(b)6 MOTION TO DISMISS

COMES NOW the Defendants, Roy Moore and Judge Roy Moore for U.S. Senate

and move to dismiss the Plaintiff’s Complaint for failure to state a claim upon which

relief may be granted pursuant to Rule 12(b)6 and as grounds therefore states as follows:

1. The Plaintiff’s defamation claim is due to be dismissed because, if such a

claim is permissible under Alabama law, it would violate the Defendants’ First

Amendment rights to refute, defend and deny claims made against a political candidate in

a political campaign. Further, the Plaintiff’s defamation case is due to be dismissed

because it is based on speech which was made in defense of allegations made against the

Defendant, Roy Moore.

2. The Plaintiff’s defamation claim is due to be dismissed because it is based

on matters filed in a judicial proceeding and are absolutely privileged.

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FACTS

The Defendant, Roy Moore was the Republican senatorial candidate for the

special election to fill the vacancy for the office of United States Senate. On November

9, 2017, the Washington Post, while the campaign was ongoing, published an article,

based on interviews they had with the Plaintiff, Leigh Corfman and others which accused

Roy Moore of improper conduct with young females. (Complaint ¶ 11, fn.1). In

response, contrary to the Plaintiff’s allegation that the Defendant accused her, Roy Moore

stated, “These allegations are completely false and are a desperate political attack by the

National Democratic Party and the Washington Post on this campaign”. The campaign

further stated that if the allegations were true they would have surfaced during his

previous campaigns, adding this garbage is the very definition of fake news. (Id. see

fn.1). A review of all the articles and videos the Plaintiff has cited, shows that Roy

Moore or any authorized person from his committee ever said that the Plaintiff was a liar

or dishonest person, instead there were general denials the claims were false or untrue,

that these were events claimed to have been 40 years ago, and that Roy Moore didn’t

know the individuals.

With respect to the Complaint that the Defendants filed on December 27, 2017,

the Defendant filed an action to enjoin the Secretary of State from certifying the results of

the special election for U.S. Senate on December 12, 2017 because of systematic election

fraud. (Complaint ¶ 67, fn. 17). The Complaint filed on December 27, 2017 alleged that

fraudulent ads were being run by a group called “Highway 31” which was funded by the

Democratic Senate Majority Pac. In the Complaint, Roy Moore also alleged that he had

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successfully completed a polygraph test which confirmed that the misrepresentations

against him during the campaign were completely false. (Affidavit attached to complaint

filed on December 27, 2017). The affidavit stated:

I, Roy S. Moore, hereby make the following statement under oath

concerning the matters set forth herein.

Within days after the December 12, 2017 special general election for
United States Senate, I agreed to a polygraph examination by a licensed
member of the Alabama Association of Polygraph Examiners, (“AAPE”),
whom I had never met previously. That examination concerned allegations
of sexual misconduct made against me during the last month of the
campaign by Leigh Corfman, Beverly Nelson, and Tina Johnson for
“alleged” conduct approximately 30-40 years ago.

As I had expected, the results of the examination reflected that I did

not know, nor had I ever had any sexual contact with any of these
individuals.

Because these false and malicious attacks on my character and

integrity not only detracted from the real issues in the campaign but also
had a very real detrimental effect on my campaign during its last 30 days, I
am making this affidavit available to the public.

Should the above individuals provide conflicting polygraph

examinations, I request that all examinations be submitted to AAPE for
further verification.

In the event of an irreconcilable discrepancy between such

examinations, I request that all parties be retested by a neutral licensed
polygraph examiner to be selected by AAPE, costs to be paid be each
individual involved.

BRIEF OF DEFENDANTS

I. Introduction:

Over 50 years ago the case of New York Times Co. v. Sullivan, 376 U.S. 254

(1964), 84 S.Ct. 710, 713, 717 arose from the Circuit Court of Montgomery County,

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Alabama concerning the constitutionality of Alabama’s defamation laws as applied to a

libel action brought by a public official against critics of his official conduct. Today in

the same Circuit Court the Defendants challenge whether the rule of law applied by

Alabama courts is deficient for failure to provide safeguards for first amendment rights of

a political candidate to defend himself from statements made to harm his reputation and

candidacy in the course of a political campaign. If political candidates are unable to

defend themselves against statements made which harm their candidacy, without the fear

of being sued for defamation if they rebut or deny the allegations, they as individuals,

especially those without significant monetary means, will be reluctant to become political

candidates.

II. A Political Candidate Has a First Amendment Right to Defend Himself

Against Speech Which Harms Himself or His Candidacy. Further, the Defendant
Had a Right to Defend Himself Against Public Allegations That Were Made Against
Him.

Every statement in Leigh Corfman’s Complaint that is alleged to be defamatory

expresses a single uniform message: Judge Moore is innocent of having engaged in

sexual misconduct with Corfman. Unlike what she has alleged against him, Judge Moore

has laid no accusation of wrongdoing against Corfman. He has merely denied the truth of

her accusations and sought to defend his reputation against her attacks on his character.

For simply defending his good name against Corfman’s accusations, Judge Moore is now

the defendant in a defamation action.

If Corfman is correct that the mere denial of defamatory accusations is itself

defamation, then accusers of any stripe may with confidence hurl accusations of

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wrongdoing against helpless targets who will be cowed into silence at the prospect of

having to defend a lawsuit for merely saying it didn’t happen. That cannot be the law.

Because a person should not be forbidden from defending his name at the hazard

of being sued for calling his defamer a liar, the law provides a qualified privilege of self-

defense. Restatement (Second) of Torts explains:

The privilege here is analogous to that of self-defense against battery,

assault or false imprisonment.... Thus the defendant may publish in an
appropriate manner anything that he reasonably believes to be necessary to
defend his own reputation against the defamation of another, including the
statement that his accuser is an unmitigated liar.

Id., § 594 cmt. k (Am. Law. Inst. 1977) (emphasis added). The Alabama Supreme Court

has cited the Restatement as an authority in defamation cases. See McCaig v. Talladega

Pub. Co., Inc., 544 So. 2d 875, 877 (Ala. 1989) (citing Restatement § 558 as its source

for the elements of defamation); Walker v. Majors, 496 So. 2d 726, 728-30 (1986)

(quoting Restatement § 587 for the proposition that defamatory statements relevant to a

judicial proceeding are privileged).

The right of reply to defamatory accusations has deep roots in the common law.

As Prosser and Keeton have stated, a “publication is privileged when it is ‘fairly made by

a person in the discharge of some public or private duty, whether legal or moral, or in the

conduct of his own affairs, in matters where his interest is concerned.’” The Law of Torts

§ 115 (4th ed. 1984) (quoting Toogood v. Spyring, 149 Eng. Rep. 1044 (1834)). A

nineteenth century treatise states: “Every man has a right to defend his character against

false aspersion. It may be said that this is one of the duties that he owes to himself and to

his family. Therefore communications made in fair self-defense are privileged.” William

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Blake Odgers, A Digest of the Law of Libel and Slander *228 (1st Am. ed. Bigelow

1881) (quoted in Haycox v. Dunn, 104 S.E.2d 800 (Va. 1958). See also Conroy v. Fall

River Herald News Co., 28 N.E.2d 729, 730 (Mass. 1940) (stating that the privilege of

self-defense includes the right to “brand the accusations as false and calumnious” and to

“comment upon the motives of the accuser”).

In Monitor Patriot Co. v. Roy, 401 U.S. 265, 271, 272, 91 S.Ct. 621,624 (1971) in

giving higher deference to speech in a political campaign, the Supreme Court stated:

[N]ew York Times itself was intended to apply to candidates, in

spite of the use of the more restricted ’public official’ terminology, is
readily apparent from that opinion’s text and citations to case law. And if it
be conceded that the first *272 Amendment was ‘fashioned to assure the
unfettered interchange of ideas for the bringing about of political and social
changes desired by the people,’ Roth v. United States, 354 U.S. 476, 484,
77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, then it can hardly be doubted that the
constitutional guarantee has its fullest and most urgent application precisely
to the conduct of campaigns for political office.

In Citizens United v. Federal Elections Com’n., 558 U.S. 310, 340, 130 S.Ct. 876,

898, (2010) the Supreme Court further stated:

(“Discussion of public issues and debate on the qualifications of

candidates are integral to the operation of the system of government
established by our Constitution”).

For these reasons, political speech must prevail against laws that
would suppress it, whether by design or inadvertence. Laws that burden
political speech are “subject to strict scrutiny,” which requires the
Government to prove that the restriction “furthers a compelling interest and
is narrowly tailored to achieve that interest.” WRTL, 551 U.S., at 464, 127
S.Ct. 2652 (opinion of ROBERTS, C.J.).

In the present case, the Plaintiff, Leigh Corfman was not a private person but

instead was an individual who injected herself into a political campaign and thus became

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at the least a limited public figure. A limited public figure is one who voluntarily injects

himself or is drawn into a particular public controversy and thereby becomes a public

figure for a limited range of issues. Little v. Breland, 93 F.3d. 755, 757 (11th Cir. 1996).

The Plaintiff’s Complaint alleges that she was the subject of a Washington Post article

concerning Roy Moore, a well-known public figure, which was published during a

political campaign to fill a U.S. Senate seat.

Surveying this area of the law, the Fourth Circuit identified certain conditions that

qualify the privilege of self-defense against defamatory accusations. The reply must not

include substantial defamatory matter that is irrelevant, non-responsive or

disproportionate to the initial attack nor may it be excessive, namely addressed to too

broad an audience. Foretich v. Capital Cities/ABC, Inc., 37 F. 3d 1541, 1559 (4th Cir.

1994) (citing Restatement (Second) of Torts §§ 599, 603-605). The statements alleged to

be defamatory do no more than deny the accusations. They do not attack Corfman’s

character in any other manner. Therefore, they are relevant and proportionate to the initial

attack. Because Corfman’s allegations were published in a national newspaper, the reply

also was appropriately made to media outlets. Therefore, every statement alleged to be

defamatory falls under the self-defense privilege and the complaint fails to state a claim

against the defendants upon which relief may be granted.

Corfman’s theory that Judge Moore could not fight back against a verbal mugging

of his reputation because his resistance could harm the mugger is absurd. Just as a

mugger cannot bring an assault charge against his victim for fighting back, so Corfman is

not entitled to sue Judge Moore for merely defending himself against her attacks on his

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character. This case must be dismissed in its entirety under the privilege of self-defense

against defamation and based on a public candidate’s freedom of speech.

III. Allegations in Corfman’s Complaint That Assertions in Judge Moore’s

Affidavit in His Election-fraud Complaint Were Defamatory Fail to State a Claim.
Those Assertions are Covered by the Absolute Privilege for Statements Made in
Judicial Proceedings.

In Section C (¶¶ 67-75) of the Complaint, Corfman alleges that the words “false

and malicious” in an affidavit of Judge Moore attached to an election-related complaint

filed in this Court on December 27, 2017, were “untrue and defamatory.” Those three

words consist of the word “false,” which is a simple denial and the word “malicious,”

which is a protected opinion. But regardless of whether the three words “false and

malicious” would be actionable standing alone, they are absolutely privileged in the

context of a judicial proceeding.

Alabama recognizes an absolute privilege for “libelous charges in pleadings,

affidavits, or other papers used in the course of the prosecution or defense of an action.”

O’Barr v. Feist, 296 So. 2d 152, 157 (Ala. 1974) (citation omitted). The only limitation

on the privilege is that “it extends only to such matters as are relevant or material to the

litigation.” Id. The Court has cited for the same proposition a passage in Restatement

(Second) of Torts (1977): “‘A party to a private litigation ... is absolutely privileged to

publish defamatory matter concerning another in communications ... in the institution of

or during the course and as a part of, a judicial proceeding in which he participates, if the

matter has some relation to the proceeding.’” Walker v. Majors, 496 So. 2d 726, 729

(Ala. 1986) (quoting Restatement, § 587). See also Drees v. Turner, 45 So. 3d 350, 359

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(Ala. Civ. App. 2010) (stating that “under Alabama law, a claim or civil damages may

not rest on pertinent statements made in the course of judicial proceedings”); Blevins v.

W.F. Barnes Corp., 768 So. 2d 386, 393 (Ala. Civ. App. 1999) (applying “some relation”

test of Walker).

In her Complaint Corfman quotes the statement in Moore’s election complaint that

he “‘successfully completed a polygraph test confirming that the representations of

misconduct made against him during the campaign are completely false.’” Complaint, ¶

68 (quoting election complaint, ¶ 22). Corfman then states: “This allegation has no

relevance to the relief that Defendants seek for the purported ‘election fraud.’”

Complaint, ¶ 68. She further describes the assertion as an “isolated, out-of-context

allegation.” Id., ¶ 69.

By these statements, Corfman seeks to evade the absolute privilege for statements

made in a judicial proceeding by challenging the relevancy of the polygraph test to the

election complaint. However, that relevancy is obvious. Paragraph ¶ 73 of the election

complaint, which states that Judge Moore “submitted to and completed a polygraph test

that disproved the allegations of misconduct made against him,” falls within the second

cause of action for injunctive relief to investigate election fraud. The polygraph test is

relevant as evidence that the attacks on Judge Moore’s character were fraudulent. The

charges of election fraud in the December 27 complaint were not limited to questions

about the counting of ballots. They extended also to advertisements run by the

Democratic Super PAC, Highway 31 “which included running fraudulent, false and

misleading advertisements against [Judge Moore].” Election Complaint, ¶ 65.

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Thus, Judge Moore’s polygraph affidavit has at least “some relation,” Walker, 496

So. 2d at 729, to the charges made in the complaint. Because the absolute privilege for

statements made in a judicial proceeding is so essential to the truth-finding process, the

fit does not have to be perfect. Accordingly, “all doubts are resolved in favor of its

relevancy or pertinence.” Walker, 496 So. 2d at 730. Under that standard, even if the

relation between the statement in the affidavit that the attacks on his character were “false

and malicious” and the election-fraud complaint is doubtful, which Judge Moore does not

concede, the absolute privilege still holds. In fact, the affidavit is directly related to the

general theme of election fraud, including false charges made in Highway 31 ads. The

polygraph test is evidence of the falsity of ads that attacked Judge Moore’s character.

This issue of relevancy is “a question of law to be decided by the court.” Walker,

496 So. 2d at 730. Because the statements about the polygraph test in the election-fraud

complaint are protected by an absolute privilege, the allegations in ¶¶ 67-75 of Corfman’s

complaint must be dismissed for failure to state a claim upon which relief can be granted.

Respectfully submitted this the 5th day of February 2018

/s/ Kenneth Shinbaum

Attorney for Defendant

/s/ Julian L. McPhillips, Jr.

Attorney for Defendant

OF COUNSEL:
Kenneth Shinbaum (SHI006)
Julian L. McPhillips, Jr. (MCP004)
MCPHILLIPS SHINBAUM, LLP
516 South Perry Street

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Montgomery, AL 36104
Telephone: (334) 262-1911
Facsimile: (334) 263-2321
kshinbaum@msg-lawfirm.com

CERTIFICATE OF SERVICE

I hereby certify that on February 5, 2018, I electronically filed the foregoing with the
Clerk of the Court using the ALAFILE system, which will send notification of such filing to the
following registered persons, and those persons not registered with the ALAFILE system were
served by email:

Harlan I. Prater IV
hprater@lightfootlaw.com
Melody H. Eagan
Meagan@lightfootlaw.com
Jeffrey P. Doss
jdoss@lightfootlaw.com
LIGHTFOOT, FRANKLIN & WHITE, LLC
The Clark Building
400 20th Street North
Birmingham, AL 35203
Telephone: (205) 581-0700
Facsimile: (205) 581-0799

Neil K. Roman
nroman@cov.com
Clara J. Shin
cshin@cov.com
Megan L. Rodgers
mrodgers@cov.com
COVINGTON & BURLING, LLP
620 Eighth Avenue
New York, NY 10018
Telephone: (212) 841-1221

/s/ Kenneth Shinbaum

Of Counsel

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