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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13406
Non-Argument Calendar
____________________
ROY S. MOORE,
Plaintiff-Appellant,
versus
GUY CECIL,
PRIORITIES USA,
BULLY PULPIT INTERACTIVE LLC,
Defendants-Appellees,
SENATE MAJORITY PAC, et al.,
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2 Opinion of the Court 22-13406
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:19-cv-01855-CLM
____________________
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Roy Moore appeals from the district court’s dismissal of
several defamation claims he asserted in a civil suit against the
defendants. The dismissed claims centered around (1) several
tweets posted on the social media platform Twitter 1 by defendant
Guy Cecil, (2) a press release issued by Cecil, on behalf of defendant
Priorities USA, after Moore lost a special election for a United
States Senate seat in Alabama in 2017, and (3) a digital ad run
during the election. He argues that the district court erred in
dismissing the tweet-based defamation claims for lack of personal
jurisdiction and in dismissing the press release and digital ad
1 Since the events in this suit, Twitter merged with another corporation and is
now known as X. Because the parties still refer to the platform as Twitter and
that is how it was known during the underlying suit, we too will refer to the
platform as Twitter in this opinion.
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22-13406 Opinion of the Court 3
defamation claims for failure to state a claim. After review, we
affirm.
I. Background
In 2017, Jeff Sessions resigned as one of Alabama’s United
States Senators, and Moore secured the Republican Party’s
nomination for the special election to fill the empty seat. Doug
Jones was the Democratic Party nominee. During the final few
weeks leading up to the special election, multiple news media
outlets reported that several women had come forward accusing
Moore of improper conduct with them in the late 1970s and early
1980s when the women were ages 14 to 18.
Specifically, these reports indicated that Moore, then in his
30s, encountered young girls at a local Alabama shopping mall, and
he asked them out. One of these women, Leigh Corfman, alleged
that, when she was 14, Moore drove her to his home, took off her
clothes and his clothes, and then “touched her over her bra and
underpants . . . and guided her hand to touch him over his
underwear.” A second woman, Beverly Young Nelson, accused
Moore of giving her a ride home from her job when she was 16,
but when she got in his car, he proceeded to “grop[e]” her and
“put[] his hands on [her] breasts.” Text of Beverly Young Nelson’s
Accusation Against Roy Moore, N.Y. Times (Nov. 13, 2017),
https://www.nytimes.com/2017/11/13/us/politics/textbeverly-young-nelson-statement.html [https://perma.cc/Y6XX-
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4 Opinion of the Court 22-13406
XR56]. 2 When she tried to fight him off and open the car door, he
locked the car doors and “he began squeezing [her] neck
attempting to force [her] head onto his crotch” and tried “to pull
[her] shirt off.” Id. He eventually gave up and left her in the parking
lot, and she quit her job the next day. Id. Moore denied all of the
allegations. He ultimately lost the election to Jones.
A. The Complaint
In 2019, Moore filed a civil complaint in the Northern
District of Alabama against Cecil, nonprofit company Priorities
USA, marketing services company Bully Pulpit Interactive LLC,
the Senate Majority PAC (SMP), and others, alleging, among other
matters, claims under Alabama law for defamation. The
defamation claims all centered around statements the defendants
made involving the allegations of Moore’s improper sexual
conduct with young girls, and can be grouped into three categories:
(1) tweets by Cecil; (2) a press release by Cecil on behalf of
Priorities U.S.A.; and (3) a digital ad by Priorities U.S.A. and Bully
Pulpit.
1. The Tweets
Moore asserted that four tweets in December 2017 by Cecil,
a staunch Democrat and the chairman of Priorities U.S.A., were
defamatory. The first of these tweets was in response to a thread
2 The district court considered articles cited by Moore along with other articles
such as Nelson’s press statement that were central to Moore’s claims.
Therefore, we rely on these sources as well.
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started by Kellyanne Conway, then advisor to President Trump, in
which she commented on the media’s narrative concerning sexual
assault allegations against the then-Senator for Minnesota, Al
Franken, a Democrat. Cecil responded to this thread by tweeting
“Breaking: Woman who supports a sexually assaulting pedophile
attempts to get the upper hand. Fails miserably.” While Cecil’s
tweet did not mention Moore, Cecil later, in the context of this
lawsuit, admitted that his tweets referenced the accusations against
Moore.
In another tweet, Ward Baker, a Republican strategist,
criticized Cecil’s statement that certain senatorial candidates for
the Democratic Party were “game changers.” In response, Cecil
tweeted “It must be a sad life when you sit around thinking of
twitter fights to start. Also, a Republican pedophile is running in
Alabama, so, you know, there might be more important things to
focus on.”
In the third tweet, following the announcement of Jones as
the winner of the special election for Sessions’s open seat, Cecil
tweeted “To the @GOP, we will never forget you chose to support
a child predator and we will hold you and every Republican
associated with you accountable.”
And finally, in another tweet, after the announcement of
Jones as the winner, Ronna McDaniel, chairwoman of the
Republican National Committee tweeted the following: “This
election has always been about the people of Alabama. Doug Jones
now answers to Alabamians, who overwhelming support
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President Trump’s conservative agenda, not Schumer & Democrat
party bosses who prioritize obstruction over tax cuts & economic
revival for Americans.” In response, Cecil tweeted “The woman
who supported a predator who stalked young girls and assaulted
them wants to talk about accountability. Got it.”
2. The Press Release
Additionally, Moore asserted that a press release by Cecil, on
behalf of Priorities USA, congratulating Senator-elect Jones was
defamatory. The press release stated as follows:
Doug Jones has spent decades fighting for Alabamians
and will now have the opportunity to continue to do
so in the United States Senate. The people of
Alabama sent a message tonight by putting country
and state ahead of partisan politics and all Americans
will now benefit from their decision. Unfortunately,
the same cannot be said for Donald Trump and
national Republicans, who supported a child molester
who wants an America where being gay is a criminal
offense, women shouldn’t run for office, and African
Americans are discriminated against at the ballot box,
all in service to tax cuts for the rich. This is a stain on
the Republican Party that will last forever. We will
make sure of it.
Priorities USA was proud to stand up for Doug and
against a pedophile by partnering with Senate
Majority PAC to run a $1.5 million digital campaign
focused on persuading and mobilizing Alabama’s
voters, particularly those in the African American
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community, beginning even before the news broke
about allegations against Roy Moore.
Moore asserted that because Cecil had no way of verifying the
truth or falsity of the allegations against Moore, he “obviously had
to have entertained doubts as to their truthfulness,” but still
asserted that Moore was a child molester and pedophile with
reckless disregard, which demonstrated actual malice.
3. The Digital Ad
Finally, Moore asserted that an ad run on digital platforms,
such as YouTube, was defamatory. The ad included a series of
images with the following text overlay and voiceover:
If you don’t vote, and Roy Moore—a child predator—
wins, could you live with that? Your vote is public
record, and your community will know whether or
not you helped stop Roy Moore. Tuesday, December
12th, vote for Doug Jones for Senate. Paid for by
Highway 31 and not authorized by any candidate or
candidate’s committee. www.highway 31.com.
Moore maintained that the reference to him as a “child predator”
was defamatory because it “typically applies to convicted sex
offenders who are liable to reoffend.” Further, he asserted that to
reinforce this “dehumanizing term” the ad included at the end a
stock photo of a young pre-pubescent girl. He maintained that the
use of such “highly inflammatory language” demonstrated that
“the defendants[] deliberately [chose] to defame him” despite the
lack of supporting evidence, which demonstrated actual malice.
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B. Procedural History
i. The initial motion to dismiss and the district
court’s ruling
The defendants filed a motion to dismiss, pursuant to
Federal Rule of Civil Procedure 12(b)(2) and (b)(6), asserting
(1) that Moore lacked personal jurisdiction over Cecil, whom had
no connection to Alabama, and (2) Moore’s complaint failed to
state a claim for defamation because it failed to establish actual
malice, which was required to succeed on a claim of defamation by
a public figure. In support of the lack of personal jurisdiction part
of the motion, the defendants submitted a sworn affidavit from
Cecil in which he attested that he was not a resident of Alabama
nor was it his domicile, he did not do business or “otherwise
engage[] in any persistent course of conduct” in Alabama, he was
not present in Alabama when he made the challenged statements
nor were the people to whom he made the statements, and he had
not consented to personal jurisdiction in Alabama.
Upon review, the district court concluded that it lacked
personal jurisdiction over the tweet-based claims. The district
court explained that because Cecil had no contacts with Alabama,
Moore had to show that the court had specific jurisdiction over
Cecil, which required him to show that the tweets were aimed at
the forum state—i.e., Alabama. Analyzing each of the four tweets,
the district court then concluded that none of the tweets were
aimed at Alabama. Rather, it determined that in all of the
challenged tweets “Cecil was engaged in a tit for tat with a
Republican on a matter of national politics, with an intended
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national audience. Cecil’s intent was not to harm Moore’s
reputation in Alabama; it was to harm the credibility of . . . other
Republicans across the country.” In sum, the district court
concluded that “Cecil aimed his tweets at Republicans” across the
country and “Moore was merely the tool Cecil used to swing at his
opponents” to “‘twitter shame’ the national Republican Party and
those affiliated with it.”
Regarding the press release defamation claim, the district
court concluded that the press release was aimed at Alabama, and,
therefore, it had personal specific jurisdiction over Cecil as to that
claim.3 However, the district court concluded that Moore had
failed to state a defamation claim upon which relief could be
granted because Moore failed to plead facts that could establish
actual malice.
Finally, regarding the digital ad, the district court concluded
that, at the time of the ad, multiple allegations had surfaced that
“Moore had made sexual advances towards, and had sexually
assaulted, teenage girls,” which if believed would support the
defendants’ use of the term “child predator” in the ad. And
Moore’s complaint failed to state a claim because he failed to plead
3 Notably, in its jurisdictional ruling the district court also analyzed whether,
because it had personal jurisdiction over Cecil for the press release claim, it
would also have pendent personal jurisdiction over Cecil for the tweet-based
claims, and it concluded that it would not. Moore does not challenge that
determination on appeal. Therefore, we do not address it.
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facts supporting actual malice, such as any facts that the defendants
entertained any serious doubts about the women’s allegations.
However, the district court gave Moore a chance to amend
his complaint as it related to the press release and the digital ad to
cure these deficiencies.
ii. The amended complaint
Moore filed an amended complaint, reasserting the same
defamation claims, along with other claims not at issue in this
appeal. 4 He maintained that the court had personal jurisdiction
over the tweet-based claims because the “aim” of the tweets was
Moore and the Alabama election, and Cecil should have known
that any injury to Moore and resulting litigation would have been
in Alabama.
Moore then challenged the constitutionality of the actual
malice standard adopted by the Supreme Court in New York Times
v. Sullivan, 5 arguing that nothing in the Constitution required
application of an actual malice standard applied to public figures
4 Moore also raised defamation claims against defendant SMP and other
entities related to a television ad, as well as claims of intentional infliction of
emotional distress, invasion of privacy (false light), and a violation of the
voting rights act. While those claims are not the subject of this appeal, we
note that the district court ultimately permitted the defamation and invasion
of privacy claims related to the television ad to proceed to trial. A jury
returned a verdict in favor of Moore on those claims, and he was awarded $8.2
million in damages.
5 376 U.S. 254 (1964).
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and that Sullivan should be revisited. He then argued that he had
shown actual malice as to both the tweets and the press release
because Cecil’s tweets demonstrated his “ill will” and “enmity”
toward Moore and his “willingness to publish false statements to
destroy [Moore’s] reputation in order to further his political
aspirations.” He maintained that because Cecil had no way to
verify the truth or falsity of the sexual misconduct allegations,
“Cecil obviously had to have entertained doubts as to their
truthfulness,” and that he “acted recklessly and without regard for
the truth.”
Regarding the digital ad, Moore asserted that actual malice
could be demonstrated by evidence of general ill will toward him.
Therefore, he argued that actual malice was demonstrated as to the
digital ad because (1) the ad “threaten[ed] to expose or dox voters”
who voted for him; (2) the ad referred to him as a “child predator”
without sufficient supporting, verifiable, evidence; and (3) by
including a stock photo of a black, preteen girl, the ad implied that
Moore “preyed, or will prey on prepubescent black girls, which in
today’s political climate creates immeasurable hostility,” even
though the defendants knew that Moore’s accusers were white
teenage girls.
iii. Second motion to dismiss and the district court’s
ruling
The defendants filed a motion to dismiss the amended
complaint under Rule 12(b)(2) for lack of personal jurisdiction and
under Rule 12(b)(6) for failure to state a claim. They asserted that
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nothing in Moore’s amended complaint should change the court’s
previous conclusion that it lacked personal jurisdiction over the
claims related to Cecil’s tweets, and the fact that Moore was injured
while residing in Alabama was irrelevant to the analysis. The
defendants also asserted that Moore had failed to plead any factual
allegations that supported actual malice with regard to the tweets,
the press release, or the digital ad.
The district court determined that Moore’s amended
complaint suffered from the same deficiencies as the original
complaint. With regard to the tweet-based defamation claims, the
district court explained that Moore had not alleged any facts to
establish personal jurisdiction over Cecil, and it reaffirmed its prior
ruling that it lacked jurisdiction.
As for the press release defamation claim, the district court
concluded that Moore failed to plead allegations that would
establish actual malice. The district court explained that Moore’s
allegations of Cecil’s ill intent to smear Moore so that he would
lose the election were insufficient to prove actual malice.
Similarly, the court determined that he failed to plead
allegations that would support a finding of actual malice
concerning the digital ad. First, with regard to Moore’s allegations
that the ad threatened to expose or dox voters by falsely stating that
their voting records were public, the district court condemned as
“deplorable behavior” any suggestion that voters would be
exposed or doxed if they voted for a particular candidate.
Nevertheless, the court explained that all the threat proved was a
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willingness on the defendants’ part “to lie about ballot secrecy” to
advance their cause to help Jones. It did not show that the
defendants entertained “serious doubts” about the veracity of the
sexual assault allegations of Corfman and Nelson, so it did not tend
to show actual malice. Second, the court rejected the contention
that the use of the term “child predator” established actual malice
because Corfman’s and Nelson’s allegations, if true, supported the
use of the term, and again, Moore failed to plead that the
defendants had doubts about the veracity of the allegations. Third,
the district court concluded that the use of the stock image of the
preteen black girl did not imply, as Moore alleged, that he has
preyed or would prey on prepubescent black girls. 6 The district
court explained that:
viewers of reasonable and common understanding
who watch the digital ad would not come away with
the message that Moore “has or would prey on
prepubescent black girls.” Nothing in the ad focuses
on the pictured child’s race or the race of Moore’s
accusers. For the brief moments that the girl appears
on screen, the message is that the public will know
whether the viewer voted. . . . Because the digital ad
is not reasonably capable of conveying the meaning
that Moore gives it, the court needn’t determine
whether Moore sufficiently pleaded that the message
6 Under Alabama law, “[w]hether a communication is reasonably capable of a
defamatory meaning is a question of law” for the court. Kelly v. Arrington, 624
So.2d 546, 548 (Ala. 1993); see also Bell v. Smith,
281 So. 3d 1247, 1255–56 (Ala.
2019).
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was defamatory or that Defendants acted with actual
malice.
Accordingly, the district court dismissed the tweet-based
defamation claims against Cecil without prejudice for lack of
jurisdiction, and it dismissed the press release and digital ad
defamation claims with prejudice for deficient pleading. Moore
now appeals that dismissal order.
II. Discussion
Moore raises two primary challenges on appeal. 7 First, he
argues that the district court erred in concluding that Cecil’s tweets
were not aimed at Alabama and therefore it lacked personal
jurisdiction over the tweet-based defamation claims. Second, he
argues that the district court erred in concluding that he failed to
7 Moore also challenges the continuing validity of the actual malice standard
set forth in Sullivan and argues that his case presents a good vehicle for
revisiting Sullivan. Although Moore is correct that many commentators and
judges have criticized Sullivan’s actual malice standard, we are bound to follow
Sullivan unless and until the Supreme Court itself overrules that decision. See
Motorcity of Jacksonville, Ltd. v. Se. Bank N.A., 120 F.3d 1140, 1143 (11th Cir.
1997) (explaining that “circuit courts are bound to adhere to the controlling
decisions of the Supreme Court” even if it appears that the reasoning has been
called into question); Jaffree v. Wallace, 705 F.2d 1526, 1532 (11th Cir. 1983)
(“[U]nless we wish anarchy to prevail within the federal judicial system, a
precedent of [the Supreme] Court must be followed by the lower federal
courts no matter how misguided the judges of those courts may think it to
be.” (quotations omitted)). In other words, even assuming arguendo that
Moore’s challenge to the actual malice standard has merit, only the Supreme
Court can alter Sullivan, and “no other court may correct it.” Jaffree, 705 F.2d
at 1533. Accordingly, we do not address Moore’s challenge to Sullivan.
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plead allegations showing actual malice regarding the defamation
claims based on the press release and the digital ad. We address
each argument in turn.
A. Personal Jurisdiction
Moore argues that, in its specific personal jurisdiction
analysis,8 the district court erroneously concluded that Cecil’s
tweets were not aimed at Alabama. Moore maintains that the
tweets were aimed at him and the state of Alabama because even
though completely unrelated topics were at issue, Cecil responded
by bringing up Moore and the Alabama Senate race. In other
words, Moore argues that Cecil “literally [made] every
conversation about Roy Moore and Alabama” thereby
“consistently target[ing]” Moore and Alabama.
“We review de novo [a] dismissal for lack of personal
jurisdiction, accepting the allegations in the complaint as true.” See
SkyHop Techs., Inc. v. Narra, 58 F.4th 1211, 1222 (11th Cir. 2023).
“When a defendant submits an affidavit contesting the basis for
personal jurisdiction, the burden shifts back to the plaintiff to
produce evidence to support personal jurisdiction.” Id. (quotations
8 “There are two types of personal jurisdiction: specific and general. Specific
personal jurisdiction is founded on a party’s contacts with the forum state that
are related to the cause of action. General personal jurisdiction arises from a
party’s contacts with the forum state that are unrelated to the litigation.”
Madara v. Hall, 916 F.2d 1510, 1316 n.7 (11th Cir. 1990). The district court
concluded that Moore only sought to assert specific personal jurisdiction, and
Moore does not contest that determination. Accordingly, we examine only
whether the district court had specific personal jurisdiction over Cecil.
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omitted). “If the district court makes findings of fact in reaching its
personal jurisdiction conclusion, we review those findings for clear
error.” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350
(11th Cir. 2013).
“A federal district court sitting in diversity may exercise
personal jurisdiction [over a nonresident defendant] to the extent
authorized by the law of the state in which it sits and to the extent
allowed under the Constitution.” Meier ex rel. Meier v. Sun Int’l
Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). Thus, to
determine whether a court has personal jurisdiction over a
nonresident defendant, we generally engage in the following twostep inquiry:
First, we determine whether the exercise of
jurisdiction is appropriate under the forum state’s
long-arm statute. Second, we examine whether
exercising jurisdiction over the defendant would
violate the Due Process Clause of the Fourteenth
Amendment, which requires that the defendant have
minimum contacts with the forum state and that the
exercise of jurisdiction not offend traditional notions
of fair play and substantial justice.
Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007)
(internal citation and quotations omitted). However, in the case at
hand, “the two inquiries merge, because Alabama’s long-arm
statute permits the exercise of personal jurisdiction to the fullest
extent constitutionally permissible.” Id. (citing Ala. R. Civ. P.
4.2(b); Sieber v. Campbell, 810 So. 2d 641, 644 (Ala. 2001)).
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Defamation is an intentional tort under Alabama law. See
Garcia v. Casey, 75 F.4th 1176, 1192–93 (11th Cir. 2023). In cases
involving intentional torts, one of the applicable tests for
determining if the nonresident defendant had the requisite
minimum contacts with the forum state for purposes of exercising
specific personal jurisdiction “is the ‘effects’ test utilized in Calder v.
Jones, 465 U.S. 783 (1984).” 9 Oldfield v. Pueblo De Bahia Lora, S.A.,
558 F.3d 1210, 1220 n.28 (11th Cir. 2009). This test “requires a
showing that the defendant (1) committed an intentional tort
(2) that was directly aimed at the forum, (3) causing an injury
within the forum that the defendant should have reasonably
anticipated.” Id.; see also Madara, 916 F.2d at 1516 (explaining that
“due process requires the defendant have ‘fair warning’ that a
particular activity may subject him to the jurisdiction of a foreign
sovereign,” and that the “fair warning requirement is satisfied if the
defendant has ‘purposefully directed’ his activities at the forum,”
and the injuries in question arise from or relate to the defendant’s
activities that were aimed at the forum state (quotations omitted)).
In this case, only the second prong of the Calder effects test
is in dispute—whether Cecil’s allegedly defamatory tweets were
directly aimed at Alabama. Moore alleged in his amended
complaint that Cecil’s tweets were intended to refer to Moore in a
9 We have recognized that in cases involving intentional torts, courts may also
apply the “traditional minimum contacts test,” which involves a “purposeful
availment analysis.” Louis Vuitton, 736 F.3d at 1356. The parties here only
discuss personal jurisdiction under the Calder effects test. Therefore, we limit
our analysis to that test.
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disparaging manner and to deter and discourage his supporters and
that he suffered harm in Alabama. And on appeal, he maintains
that his case is virtually identical to that in Calder. We disagree.
In Calder, a California actress sued Florida journalists for
publishing an allegedly libelous article in the National Enquirer,
which was “a national magazine with a large circulation in
California” specifically. 465 U.S. at 784–85. The Supreme Court
held that personal jurisdiction existed over the non-resident
defendant because the article (1) “concerned the California
activities of a California resident[,]” and disparaged “the
professionalism of an [actress] whose television career was
centered in California”; (2) “the article was drawn from California
sources”; (3) “the brunt of the harm” to the actress “was suffered in
California”; and (4) the defendants “knew that the brunt of [the]
injury would be felt by [the actress] in the State in which she live[d]
and work[ed] and in which the [magazine had] its largest
circulation.” Id. at 788–90. Thus, Moore argues that jurisdiction
lies in his case because as in Calder, Cecil’s allegedly defamatory
tweets focused on Moore; Moore’s career is in Alabama; Moore
suffered harm as a result of the tweets in Alabama; and Cecil knew
that the brunt of the harm would be suffered by Moore in Alabama.
The problem for Moore is that Calder does not sweep that
broadly. Post-Calder, the Supreme Court clarified that a
defendant’s actions do not create sufficient contacts with the forum
state “simply because he allegedly directed his conduct at [a]
plaintiff[] whom he knew had . . . connections” with the forum
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state. Walden v. Fiore, 471 U.S. 277, 289 (2014); see also Herman v.
Cataphora, Inc., 730 F.3d 460, 465 (5th Cir. 2013) (“A plaintiff’s
suffering damage in the forum state is part of the calculus, but for
minimum contacts to be present the allegedly defamatory
statements must be adequately directed at the forum state.”).
Thus, simply because the tweets—which never named Moore
directly—implicated him and he suffered harm in Alabama is not
enough to establish personal jurisdiction.
Furthermore, social media and internet-based activities
present a unique context for assessing personal jurisdiction under
Calder. While we do not have any published case law directly
addressing the application of the Calder effects test in the social
media context, many of our sister circuits have addressed this issue,
and we find their analysis persuasive. Those circuits have
uniformly held that in determining whether the allegedly
defamatory comments or information was directly aimed at the
forum, the court must look to the defendant’s focus, purpose,
and/or intent in posting the information. See, e.g., Johnson v.
TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th Cir. 2021) (“The
key question, under Calder, is whether the forum state was the focal
point both of the [alleged defamation] and of the harm suffered.”
(quotations omitted)); Shrader v. Biddinger, 633 F.3d 1235, 1241
(10th Cir. 2011) (explaining that in the internet context when
determining whether the defamatory information was aimed at the
forum state, courts must look for “indications that a defendant
deliberately directed its message at an audience in the forum state
and intended harm to the plaintiff occurring primarily or
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particularly in the forum state”); Young v. New Haven Advocate, 315
F.3d 256, 262–63 (4th Cir. 2002) (holding that the application of
Calder in the internet context “requires proof that the out-of-state
defendant’s [i]nternet activity is expressly targeted at or directed to
the forum state”—i.e., did the defendant “manifest an intent” to
direct its internet content to an audience in the forum state). Mere
knowledge that the effects of the defendant’s conduct would be felt
in the forum state, without more, is insufficient. See Dudnikov v.
Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1077 (10th Cir.
2008) (“[U]nder the Calder test[,] plaintiffs . . . must establish . . . not
only that defendants foresaw (or knew) that the effects of their
conduct would be felt in the forum state, but also that defendants
undertook intentional actions that were expressly aimed at that forum
state.” (emphasis in original)); see also Eighteen Seventy, LP v. Jayson,
32 F.4th 956, 972 (10th Cir. 2022) (explaining that the second prong
of Calder effects test focuses “on whether the defendant’s allegedly
tortious conduct was focused on or directed at the forum state—
not . . . on whether the defendant’s wrongful conduct was focused
on or directed at the interests of plaintiffs who reside in or
otherwise have significant connections to the forum state”).
Thus, where the out-of-state defendant deliberately directs
his posting at the plaintiff or at an audience in the forum state, then
the “directly aimed at the forum” prong of the Calder effects test is
satisfied. See, e.g., Johnson v. Griffin, 85 F.4th 429, 433–35 (6th Cir.
2023) (holding that personal jurisdiction existed over tweet-based
tort claim where the nonresident defendant identified the plaintiff
and tagged the plaintiff’s employer in the tweet); Tamburo v.
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Dworkin, 601 F.3d 693, 697 (7th Cir. 2010) (holding that personal
jurisdiction existed over a defendant who used “blast emails” to
defame the plaintiff business and generate a boycott, noting that
some of these messages even listed the plaintiff’s address and urged
people to harass the plaintiff). But where there is no evidence that
the defendant posted the allegedly defamatory information hoping
to reach the forum state or an audience in the forum state
specifically, then the Calder effects test is not satisfied. See, e.g.,
Blessing v. Chandrasekhar, 988 F.3d 889, 906–07 (6th Cir. 2021)
(holding that the court lacked personal jurisdiction where “[t]here
[was] no evidence that the defendants posted the tweets hoping to
reach [the forum state] specifically as opposed to their Twitter
followers generally”); Herman, 730 F.3d at 466 (holding that
personal jurisdiction did not exist because, while the plaintiffs
demonstrated that the harm caused by the allegedly defamatory
statements would be felt in the forum state of Louisiana, they failed
to show “that the statements’ focal point was Louisiana” and there
was no evidence that the statements were directed at Louisiana
residents or that the website had a “disproportionately high
Louisiana readership”); Young, 315 F.3d at 259, 264 (holding court
had no personal jurisdiction in Virginia over Connecticut
newspapers that posted internet articles that allegedly defamed the
warden of a Virginia prison because there was no evidence
defendant intended to target a Virginia audience).
Applying these principles to Moore’s case, to satisfy the
Calder effects test for personal jurisdiction, Moore needed to show
that Alabama was the focal point of Cecil’s tweets, and he failed to
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22 Opinion of the Court 22-13406
do so. There is no evidence that the four tweets in question were
directed at Alabama or that Cecil intended to target an Alabama
audience as opposed to his followers or a national audience
generally. Accordingly, the district court did not err in holding that
it lacked personal jurisdiction over Cecil for the tweet-based
defamation claims. See Blessing, 988 F.3d at 906 (holding that the
court lacked personal jurisdiction where “[t]here [was] no evidence
that the defendants posted the tweets hoping to reach [the forum
state] specifically as opposed to their Twitter followers generally”);
Herman, 730 F.3d at 466 (holding that personal jurisdiction did not
exist because, although the plaintiffs demonstrated harm in the
forum state of Louisiana, they failed to show “that the statements’
focal point was Louisiana” and there was no evidence that the
statements were directed at Louisiana residents or that the website
had a “disproportionately high Louisiana readership”).
B. Actual Malice—Digital Ad & Press Release Claims
Moore argues that the district court erred in dismissing his
defamation claims related to the press release and the digital ad for
failure to state a claim because he alleged facts that would support
a finding of actual malice.
We review de novo a district court’s ruling on a motion to
dismiss, “accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.” Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003).
To prevent dismissal under Rule 12(b)(6), the plaintiff must
allege sufficient facts to state a claim for relief that is “plausible on
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22-13406 Opinion of the Court 23
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[A]
plaintiff’s obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. at
555 (quotations omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In Alabama, the elements of a typical defamation claim are:
1) a false and defamatory statement concerning the
plaintiff; 2) an unprivileged communication of that
statement to a third party; 3) fault amounting at least
to negligence on the part of the defendant; and
4) either actionability of the statement irrespective of
special harm or the existence of special harm caused
by the publication of the statement.
Wal-Mart Stores, Inc. v. Smitherman, 872 So. 2d 833, 840 (Ala. 2003)
(quotations omitted). However, when, as here, the plaintiff is a
public figure, the plaintiff must show more than at least negligence
on the part of the defendant. Cottrell v. Nat’l Collegiate Athletic Ass’n,
975 So. 2d 306, 333 (Ala. 2007). Specifically, the First Amendment
requires the public figure plaintiff to demonstrate by clear and
convincing evidence that the alleged “defamatory statement was
made with ‘“actual malice”—that is, with knowledge that it was
false or with reckless disregard of whether it was false or not.’” Id.
(quoting Sullivan, 376 U.S. at 280). Accordingly, to survive a
motion to dismiss, Moore had to plausibly allege in his amended
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24 Opinion of the Court 22-13406
complaint “facts sufficient to give rise to a reasonable inference that
the false statement was made with knowledge that it was false or
with reckless disregard of whether it was false or not.” 10 Michel v.
NYP Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016) (quotations
omitted).
Actual malice is a subjective test, requiring the plaintiff to
show that the defendant “actually entertained serious doubts as to
the veracity of the published account, or was highly aware that the
account was probably false.” Id. at 702–03 (“The test is not an
objective one and the beliefs or actions of a reasonable person are
irrelevant.”). Importantly, “[i]ll-will, improper motive or personal
animosity plays no role in determining whether a defendant acted
with actual malice.” Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185,
1198 n.17 (11th Cir. 1999) (quotations omitted); see also Masson v.
New Yorker Mag., Inc., 501 U.S. 496, 510 (1991) (“Actual malice
under the New York Times standard should not be confused with the
concept of malice as an evil intent or a motive arising from spite or
ill will.”). Additionally, actual malice cannot be found where “the
publisher’s allegations are supported by a multitude of previous
10 We note that the defendants did not challenge the alleged falsity of the
alleged defamatory statements in their motion to dismiss. Instead, they
focused solely on the actual malice element. And because we are at the
motion to dismiss stage, for purposes of this opinion, we accept as true
Moore’s allegations in the complaint that the alleged statements were false.
Hill, 321 F.3d at 1335.
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reports upon which the publisher reasonably relied.” Rosanova v.
Playboy Enters., Inc., 580 F.2d 859, 862 (5th Cir. 1978). 11
We begin with the press release. 12 Moore argues on appeal,
without citation to any legal authority or supporting argument,
that the “use of the word ‘pedophile’” in the press release was
sufficient to show actual malice because it demonstrated the
defendants’ recklessness given that “the word was not technically
correct for the actual allegations made against Moore.” Moore’s
conclusory assertion is insufficient to properly raise this claim
before this Court, and we conclude that he has abandoned any
challenge to the dismissal of the press-release-based defamation
claim. LaCroix v. Town of Fort Myers Beach, 38 F.4th 941, 954 (11th
Cir. 2022) (“[W]e will deem an appellant to have abandoned an
argument where [he] makes only ‘passing references’ to it in the
background sections of [his] brief—or, for that matter, even the
brief’s argument section.” (quotations omitted)); Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long
held that an appellant abandons a claim when he either makes only
11 Decisions of the former Fifth Circuit rendered “prior to the close of
business” on September 30, 1981, constitute binding precedent in the Eleventh
Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
12 We note that on appeal the defendants argue that the district court erred in
determining that it had personal jurisdiction over Cecil for the press release
defamation claim because the press release was not aimed at Alabama. We
disagree and conclude that the district court properly determined that it had
jurisdiction over the press-release defamation claim for the reasons set forth
in its opinion.
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26 Opinion of the Court 22-13406
passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.”). Although Moore attempts
to rehabilitate his claim by advancing an argument about this issue
in his reply brief, “[t]hose arguments come too late.” Sapuppo, 739
F.3d at 683 (explaining that an appellant cannot use his reply brief
to resurrect an abandoned claim and that we will not consider
arguments raised for the first time in a reply brief).
Turning to the digital ad, Moore asserts in a conclusory
fashion that the clear implication of the ad, particularly because of
the image of the young, black girl, was that he “was a child
predator, preying upon small black children.” He maintains that
this implication, coupled with the “lie” that the community would
know if someone voted for Moore because voting records were
public, demonstrates “a reckless disregard for the truth or falsity of
the allegations,” which is sufficient to show actual malice. The
problem for Moore is that the district court found that “viewers of
reasonable and common understanding who watch the digital ad
would not come away with the message that Moore ‘has or would
prey on prepubescent black girls.’” And other than conclusively
stating that the opposite is true, Moore has provided no argument
or citation to authority to show that the district court erred in its
determination. Thus, we conclude that he has abandoned any
challenge to the district court’s determination that the ad did not
imply the defamatory message that Moore claims it did. See
Sapuppo, 739 F.3d at 681.
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Finally, even assuming that his contention that the ad
contained a lie about the public availability of voting records is
true, it does not support a defamation claim because it is not a false
statement about Moore. See Smitherman, 872 So. 2d at 840
(explaining that a defamation claim under Alabama law requires “a
false and defamatory statement concerning the plaintiff” (emphasis
added) (quotations omitted)). To the extent that Moore contends
that the false statement about the public availability of one’s voting
records demonstrates actual malice with regard to the ad’s use of
the term “child predator,” the district court properly concluded
that it does not. The basis of the “child predator” reference was
Corfman’s and Nelson’s allegations that Moore sexually assaulted
them as young teens. The voting-records-related statement does
not in any way show that the defendants “actually entertained
serious doubts as to the veracity of” Corfman’s or Nelson’s
allegations, or that the defendants were “highly aware that [the
allegations were] probably false.” Michel at 702–03. Indeed, it is
undisputed that the allegations that Moore had preyed on young
teenage girls were widely published in a multitude of sources at the
time of the digital ad, which tends to preclude a finding of actual
malice. See Rosanova, 580 F.2d at 862. Accordingly, because
Moore’s amended complaint failed to allege “facts sufficient to give
rise to a reasonable inference that the false statement was made
with knowledge that it was false or with reckless disregard of
whether it was false or not,” the district court properly granted the
motion to dismiss. Michel, 816 F.3d at 702 (quotations omitted).
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28 Opinion of the Court 22-13406
III. Conclusion
For the above stated reasons, the district court properly
granted motion to dismiss under Rule 12(b)(2) and (b)(6), and we
affirm.
AFFIRMED.
