Tuesday, March 8, 2011

Legal analysis: Scott Moore probably has a good cause of action for defamation

image I preface this post with a caveat: The majority of my career has consisted of federal criminal prosecution in District Courts in Alabama, Florida and Texas. However, early in my legal career I also had considerable experience in civil litigation and I have some knowledge of Alabama tort law.

In my unofficial but informed opinion, radio talk show host Scott Moore likely has a very good cause of action for defamation against the Never to Yield Foundation, an organization that has mounted an online campaign of pressuring radio advertisers to drop support of Mr. Moore’s radio show on a Huntsville, Alabama radio station. The station, WZZN 97.7 The Zone, airs a three hour show called the “Scottie and Redfish Show.” Scottie is the on air personality of Scott Moore.

Mr. Moore has gained some notoriety of late by claiming to have heard recordings that implicate certain individuals in an alleged pay-for-play scheme and provide evidence that those individuals were not honest with NCAA and Auburn University officials during an official review regarding the eligibility of an Auburn student-athlete. The controversy has swirled through state and regional broadcast media and the internet. Ostensibly, the statements by Moore and the backlash from his detractors led the Never to Yield Foundation to launch their on-line campaign.

Here is the statement from the cached version  of the Never to Yield Foundation’s website:

WZZN radio host Scott Moore lied. His claims of tapes that incriminate Auburn and Cam Newton have been debunked. Scott Moore is an Alabama fan. His sole purpose is to boost ratings for his show and hurt Auburn in the process. It’s time to stand up against these kind of attacks.

In the battle against Auburn currently being waged by  Moore and his WZZN co-host William “Redfish” Barger, they are enabled by their advertisers. The companies and individuals who sponsor their show provide them the means and the platform to spew their transparent agenda designed to damage Auburn in any way possible.

Without the advertisers, Moore and Barger’s show could not survive.

Cut off their supply line.

We ask the Auburn Family and the Never to Yield Foundation to call, write or email the advertisers of WZZN and demand an apology for Moore’s vicious accusations.

Join Us….

You may view a screenshot of that cached version of the website by clicking the image below.


The foundation has edited their website and toned down the rhetoric, but it’s too late. The horses are out of the barn, so to speak. The statement existed as shown above for many days and caused many readers to take specific action. Furthermore, the statement was presented as factual (“Scott Moore lied”) and presented to a group of people who then took specific action to damage Mr. Moore’s business interests and the business interests of WZZN.

First, let’s get some definitions out of the way.  Defamation is the communication of any statement that makes a claim—expressly stated or implied to be factual—that may give an individual, business, product, group, government, or nation a negative image. Defamation includes both libel (written form) and slander (spoken form).

Alabama Defamation Law is fairly straightforward. In order to support a cause of action and initiate litigation, four elements must be met.

These are:

  1. Publication
  2. Defamatory statement
  3. Specific to Plaintiff
  4. Intentional

A synopsis of each follows.

The allegedly defamatory statement must have been made to a third party in addition to the injured party. That is, there is no cause of action by making defamatory or untrue statements to the injured party.  A third party—ie, members of the public, readers of a newspaper or website, radio audience—must have heard or read the statement. When the defamatory or false statement is told to, read or heard by others, the element of Publication is present.

Defamatory Statement
A statement is said to  be defamatory if  a reasonable third party (i.e. someone other than the injured party) understands the statement to be damaging to the reputation of the injured party. The statement is judged according to their natural effect upon the mind of the person who hears or reads the statement. In other words, it can’t just hurt the feelings of the injured party. It must be understood by a third party to be damaging and if so, this element is present.

Specific to Plaintiff
The statement has to be specific enough for the third party to understand that it is directed at the injured party. Naming the injured party is enough to show that this element is present.

The statement must be intentional, which means that the offender fully intended to speak or write and publish the statement and that it is about the Plaintiff and not someone else.

Clearly, reading the Foundation’s website statement above demonstrates all four elements are present, and accordingly, Mr. Moore has a very good cause of action to initiate litigation against the Foundation.

The Foundation’s legal peril is made more ominous by the fact that if Mr. Moore can demonstrate that the statement was malicious in nature, punitive damages of up to three times the compensatory relief can be imposed by the jury. With defamation compensatory awards often rising into the millions of dollars, the Foundation faces a fairly dire day in court should Mr. Moore decide to pursue legal action.

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David L. said...

Editor's note: GMAN is a retired federal prosecutor and serves as a part-time legal consultant for the I Bleed Crimson Red blog. He will continue to provide occasional blog posts and plain English commentary on legal matters in the news.


Bandit said...

Such a great article, well done!

tide2bama said...


Unknown said...

Hmm. Seems like Moore is probably a limited-purpose public figure for this controversy. If so he'll need evidence of actual malice to establish a claim. Tough standard.

Unknown said...

Well, then Cecil newton, Cam Newton, John Bond, Billy Bell, and Auburn University will sue Scott Moore for defamation because what Scott has done to try to defame people in the recruitment of Cam Newton is no different. Is that a legal battle you really want to get into? Unless you truly have facts, just shut up and don't open your mouth. I am pretty sure "Scott Moore has lied," is a pretty broad statement and can be found true unless Scott Moore does have tapes. Maybe when he said it he sould have first worded it that he has some tapes that may have Cecil shopping Cam on it, but he didn't. He straight up said that he had tapes of Cecil shopping Cam and Cam was in the room.

David L. said...

The fact that your Foundation has altered the website and toned down the rhetoric is a tacit admission that the statements were defamatory.

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