The reign of the gleefully ignorant

If you, like me, have an area of specialized knowledge at your command, it hurts your soul when other people display their ignorance while attempting to use your area of specialized knowledge to support their beliefs. My area of specialized knowledge is the law. I am in training and prior practice a generalist; there are very few sorts of legal disputes that I have never had any involvement in. But over the years, I developed a reputation and a knack for some particular fields of law. The field I am most interested in is constitutional law.

Today I awoke to the news that retired Alabama judge and US Senate candidate Roy Moore plans to sue the Washington Post for defamation of character for publishing allegations that he molested at least one underage girl while in his thirties, and that he serially dated teenagers and gave one of them alcohol when she was under the legal drinking age. I have read several assertions by non-lawyers supportive of Roy Moore, or at least deeply skeptical of the allegations. In order of popularity, here they are:

1. The Washington Post is run by Democratic operatives who invented the story or coerced the women into telling their stories (presumed to be false).
2. The Washington Post would bear the burden of proving the allegations true in any lawsuit Moore would file against them.
3. The Washington Post committed a crime by publishing the allegations against Moore.
4. What Moore allegedly did to Corfman when she was 14 years old was not a moral wrong and is not a moral wrong, even if it was and is a crime.
5. It’s Moore’s private life, and not subject to scrutiny.

These are intriguing arguments. I note that none of them are the defenses raised by Roy Moore, who has simply asserted that none of these accusers are telling the truth, and that he never committed any of the alleged acts. Roy Moore’s defense has two things going for it: one, it is not a weaselly, morally-equivocating defense, like 3, 4, and 5, above, are; two, it does not prejudice any future legal actions.

Since I began this post, a fifth woman has come forward, bearing alleged documentary proof that Roy Moore knew her and had contact with her on a specific date. This is highly coincidental, for starters, and therefore should be treated with skepticism. There is currently a vicious debate going around that Roy Moore’s alleged signature from 1977 doesn’t match his verified signature from 2009. Here’s what the FBI had to say about handwriting analysis in 2009. I invite you to draw your own conclusions.

My issue is not with Roy Moore, per se, but with his defenders. As a public defender, I do not consider stated skepticism about these allegations to make one a defender of Roy Moore. Skepticism about these sort of allegations, arising a month before the special election, with little to noevidence except the statements of alleged victims, is healthy and appropriate.

I do not support a rush to judgment; however, the voters of Alabama don’t have the luxury of that choice. Their special election is December 12, and they have to decide by then what they are going to do. Their governor has the power to reschedule the election, but has stated that she will not. So, Alabamians must gird their loins and prepare for a mental struggle.

How, then, should Alabamians decide? I will not advise them who to choose; my personal preference is literally anyone but Roy Moore. As a lawyer, he offends me; as a Christian, he offends me; as a man, he offends me. Not since Clinton v. Dole, when I gleefully voted against Bill Clinton, have I had so easy a choice to make. But I live in Mississippi, and my opinions on the issue of who should represent Alabama should not matter to her residents. What I care about is how Alabamians make the decision.

Roy Moore does not have an unimpeachable character. He is defended by many people who have said, on the record, that they would prefer to elect someone to the Senate who has in fact done the things that Moore is only accused of, over a random Democrat. But only very few of Moore’s defenders have said that they would prefer an actual pedophile over Doug Jones. This brings to mind the awesome Terry Ferguson for Senate sketch, and suggests how Jones could win the race. The real question is whether the people of Alabama prefer someone accused of pedophilia to Doug Jones, which is true of 29% of the population. This is akin to the old saw about how you lead a mule.

To circle back to my original point, a precis on how exactly these sorts of lawsuits work:

1. The aggrieved files a complaint, becoming the plaintiff. Plaintiff is a fancy word meaning “the person who must prove the claims asserted in a lawsuit.”
2. The publisher of the allegedly defamatory work is served, becoming the defendant. Publisher here means “literally anyone who makes public any alleged facts about the plaintiff.”
3. The defendant responds to the complaint in writing, setting forth denials and affirmative defenses. In this case, some denials may serve as affirmative defenses, and some affirmative defenses may shift the burden of proof from the plaintiff to the defendant. Some affirmative defenses merely have to be asserted, and the plaintiff must then rebut them by competent evidence.
4. Then discovery takes place. Usually, most lawsuits against newspapers end here, if they are actually filed. I predict that in this case, the lawsuit against Alabama media may be filed, but the lawsuit against the Post will almost certainly not be filed. Why? Because suing the Post would subject the lawsuit to removal to federal court in Alabama due to diversity jurisdiction, and the federal courts of Alabama are historically hostile to Roy Moore.

What is not contained in the foregoing four paragraphs? Any reference to criminal law. Why? Because the statute of limitations for the crimes Moore is alleged to have committed has already run. Moore is legally innocent of those alleged crimes, insofar as prosecution is barred by the passage of time. He may be morally guilty, but he is legally innocent of them. I hope that this puts paid to all the dubious moral hand-wringing. Congratulations, Moore defenders. I acknowledge that he cannot be prosecuted under state law for these allegations. Now, you still have to address their merits.

The character of a person running for office is always at issue. Unbelievably to me, some Christian defenders of Moore claim it should not be, to the extent that any investigation of that character would enter the privacy of the candidate’s home. I cannot believe that they extend the same courtesy to the Clintons or Doug Jones, but maybe they do. In my opinion, the character of the person running for office is the second most important consideration, after their competency.

In a subsequent story, I will provide my analysis of the demand letter sent by Moore’s attorney.