Roy Moore’s demand letter
I have reviewed Roy Moore’s demand letter, sent to the Alabama Media Group’s attorneys. It is appalling and incompetent. First, the grammar is poor, and the syntax lamentable. Second, the letter conflates (presumably on purpose) the standards of defamation relating to a private person and to a public figure. Third, on the third page of the letter, Moore’s attorney makes reference to “oppression” as an element of the alleged defamation of Moore by the Alabama Media Group, something that is not an element of Alabama defamation law or indeed outside the protection of the First Amendment. Full disclosure: I am not licensed in Alabama.
Who is Roy Moore’s attorney? His name is Trenton Rogers Garmon. He has been licensed to practice law since 2007. He was reportedly disciplined by the Alabama State Bar in 2014 by suspension. He appears to be a typical street lawyer, like I was before I became a public defender. However, he signs his letters “Trenton R. Garmon, JD MA.” This may be an Alabama usage that I am not familiar with, but among Mississippi lawyers it is considered declasse to list your degrees after your name. We are not intellectuals, we are working stiffs.
Starting from the end of my three big complaints with the letter, the elements of defamation under Alabama law are:
- A publisher (in this case, Alabama Media Group),
- made false and defamatory claims about Roy Moore,
- to a third party (the public at large).
Brackin v. Trimmier Law Firm, 897. So. 2d 207, 218 (Ala. 2004).
Broadly speaking, Roy Moore has it easy, in that there is no doubt that AMG is a publisher of the claims, and that they published them to a third party. But the sticky wicket is that Roy Moore has to prove that the claims are both false and defamatory.
To my second quibble with the content of the letter: AMG is further protected by the 1st Amendment, thanks to an earlier lawsuit filed by another Alabama public official, L.B. Sullivan, against the New York Times, in the 1960s. The rule that emerges from that case, New York Times v. Sullivan, states that a public official cannot prevail in a defamation suit against a publisher unless the public official can prove that the publisher knew at the time that they published the story that the story was false, or that they published the story in reckless disregard for its truth or falsity.
So, in effect, to prevail Roy Moore must prove that not only were the statements false and defamatory, but that AMG knew they were false and defamatory at the time and published them any way, or that AMG did not care to investigate their falsity and published them anyway. This burden is so high as to be almost impossible. For comparison of a lawsuit filed by a Mississippi municipal official against a local blogger, I offer you the case of Griffith v. Wall, which I litigated for the blogger. I didn’t do the best job, and due to sloth had to appeal the appeal after winning at a trial that took about three hours. We won, by the way.
As to my first beef with the letter: it violates basic rules of formal writing, and a demand letter is nothing if not formal. It uses the contraction “it’s” in its first sentence to indicate possession. It violates rules of subject and verb agreement. It needlessly adverbializes adjectives. It uses scare quotes where none are needed. It is a stupid, stupid letter, written by a vainglorious young attorney. The only thing that spared me from writing letters like this was that in my first three years of practicing law I had bosses who stopped me from doing it. Trenton R. Garmon needs a mentor. I just hope that he’s getting paid for this train wreck, and not doing it pro bono.
