Supreme Court Denies Review in Moore v. Senate Majority PAC, Leaving the Eleventh Circuit's Actual Malice Test for Defamation by Implication in Place

Supreme Court Denies Review in Moore v. Senate Majority PAC, Leaving the Eleventh Circuit's Actual Malice Test for Defamation by Implication in Place

The Supreme Court denied certiorari on October 5, 2026 in Moore v. Senate Majority PAC, No. 26-122. The denial leaves standing an Eleventh Circuit decision that wiped out the $8.2 million Roy Moore won against the super PAC on his defamation and false-light claims, because he never proved the intent component of actual malice.

Information last verified on October 8, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: This article covers a federal appellate decision applying Alabama defamation and false-light law, binding in the Eleventh Circuit (Alabama, Florida, Georgia). It does not describe the law of any other state or circuit, and it does not address state anti-SLAPP procedure.

What Happened

On October 5, 2026 the Supreme Court denied Roy Moore's petition for a writ of certiorari in Moore v. Senate Majority PAC, No. 26-122. The docket entry reads simply "Petition DENIED." No dissent, no statement respecting the denial and no reasons appear on the docket.

The petition had been filed on July 23, 2026 and docketed on July 28. Senate Majority PAC filed a waiver of its right to respond on August 18, and the case was distributed for the September 28, 2026 conference the next day. The Eagle Forum Education & Legal Defense Fund filed an amicus curiae brief on August 27, 2026.

Moore had already sought emergency relief at the Court. On a separate application docket in this same case, No. 25A1396, which lists the same Eleventh Circuit case number below, he applied for a stay on June 12, 2026. The docket entry records only that the application sought "a stay" and does not say what it would have stayed. Justice Thomas requested a response, which SMP filed on June 25, and Moore replied on June 29. Justice Thomas denied the application the same day.

With certiorari denied, the governing decision is the Eleventh Circuit's published opinion of April 24, 2026 in Moore v. Senate Majority PAC, No. 23-13531, on appeal from the United States District Court for the Northern District of Alabama, D.C. Docket No. 4:19-cv-01855-CLM. The panel was Circuit Judges Jill Pryor, Branch and Hull; Judge Branch wrote for the court.

The advertisement and the verdict

In 2017 Moore was the Republican nominee in the Alabama special election to fill the Senate seat Jeff Sessions had vacated. After the Washington Post and other outlets reported that a number of women had accused Moore of improper sexual conduct, Senate Majority PAC built a six-frame television advertisement from those reports. The ad ran approximately 533 times between November 27 and December 6, 2017.

Only two frames mattered to the appeal. Frame 2 quoted the New American Journal: "Moore was actually banned from the Gadsden Mall . . . for soliciting sex from young girls." Frame 3 quoted AL.com: "One he approached 'was 14 and working as Santa's helper.'" Each frame carried a citation to its source and date, and Moore did not dispute that both excerpts were accurate quotations from the cited articles.

Moore sued SMP in the Northern District of Alabama for defamation, defamation by implication and false-light invasion of privacy. The theory submitted to the jury was narrow: that juxtaposing frames 2 and 3 back to back created a new, false and defamatory message, namely that Moore had solicited sex from Wendy Miller when she was 14 and working as Santa's helper at the Gadsden Mall. It was not disputed at trial that Moore was a public figure.

The district court treated the defamation and defamation-by-implication claims as a single claim, and the jury found SMP liable for defamation and for false-light invasion of privacy, awarding Moore $8.2 million in compensatory damages. The district court conducted its own review, found that "Moore presented sufficient evidence to support the jury's finding of actual malice," and denied SMP's renewed motion for judgment as a matter of law and its alternative motion for a new trial. SMP appealed.

The disposition

The Eleventh Circuit reversed. Its conclusion, at page 44 of the slip opinion, is one sentence:

For these reasons, we reverse the district court's order denying SMP's renewed motion for judgment as a matter of law, and remand with instructions for the district court to enter judgment for SMP.

Moore v. Senate Majority PAC, No. 23-13531, slip op. at 44 (11th Cir. Apr. 24, 2026).

The formal disposition line is "REVERSED AND REMANDED WITH INSTRUCTIONS." The panel also said earlier, at pages 28 to 29, "We thus vacate the jury's verdict, reverse the denial of SMP's motion for judgment as a matter of law, and remand for entry of judgment in favor of SMP," and at page 44 that "the jury verdict cannot stand." The operative holding is the reversal of the district court's order denying the renewed motion for judgment as a matter of law, with instructions to enter judgment for SMP.

What the Eleventh Circuit Actually Held

Defamation by implication is a different animal

Alabama law recognizes a single tort of defamation that can be proved several ways, including by "defamatory implication" and "defamatory innuendo." Defamation by implication, as the panel put it quoting 50 Am. Jur. 2d Libel and Slander § 161, "occurs when a defendant juxtaposes a series of facts to imply a defamatory connection between them," so the claim "stems not from what is literally stated but from what is implied."

That distinction drove the whole case. Because the defamatory meaning is implied rather than stated, the panel reasoned, the challenged statement necessarily carries more than one possible meaning, some defamatory and some not.

Actual malice has two components in an implication case

Actual malice is the public-figure standard from New York Times Co. v. Sullivan, 376 U.S. 254 (1964): knowledge that the statement was false, or reckless disregard of whether it was false. The test is subjective, aimed at the defendant's actual state of mind, and ill will or improper motive plays no part in it.

In an ordinary express-defamation case, proving knowledge of falsity does double duty: if a defendant knew the statement was false and defamatory, intent to defame follows. The Eleventh Circuit held that this inference breaks down when the defamatory meaning is only implied. Agreeing with several sister circuits, and following the Third Circuit's decision in Kendall, the court held that "in defamation-by-implication cases, showing known falsity [of the implication] alone is inadequate to establish an intent to defame," because the statement "has defamatory and nondefamatory meanings." The panel described its approach as consistent with decisions of the First, Third, Sixth and Seventh Circuits.

So a public-figure plaintiff pursuing an implication claim in the Eleventh Circuit must now show, by clear and convincing evidence, both of the following:

1. That the defendant knew of or recklessly disregarded the falsity of the implied defamatory statement (the falsity component); and
2. That the defendant intended to communicate the defamatory meaning, or recklessly disregarded it, meaning the defendant "knew that the defamatory meaning was not just possible, but likely, and still made the statement despite their knowledge of that likelihood" (the intent component).

Why Moore's three arguments failed on the intent component

Moore pointed to three things. First, the jury had plainly disbelieved every SMP witness who testified that nobody intended the implication. Second, he argued the ad itself proved intent, since "One he approached" in frame 3 refers back to frame 2. Third, he argued that SMP's own pre-publication vetting proved it knew no article supported the implication.

The panel accepted that the jury was entitled to disbelieve the witnesses and gave those credibility findings deference. But disbelief is not affirmative proof. Quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984), the court noted that "discredited testimony is not considered a sufficient basis for drawing a contrary conclusion," and added the Third Circuit's formulation that "Mere disbelief of a defendant's statement ordinarily is insufficient to establish malice."

On the ad itself, the court held that a statement's capacity to carry a defamatory inference says nothing about the publisher's state of mind. It quoted Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309, 1318 (7th Cir. 1988): "Simply because a statement reasonably can be read to contain a defamatory inference does not mean" that "the publisher of the statement either intended the statement to contain such a defamatory implication or even knew the readers could reasonably interpret the statements to contain the defamatory implication." Holding otherwise, the panel wrote, would let a plaintiff recover for a negligently conveyed implication. The panel also noted that each frame carried a citation to its source, which let viewers check the claims for themselves.

The vetting argument cut the other way. SMP's research team had fact-checked each frame against the cited articles. It had not fact-checked the implication, but the court held that this does not show intent or reckless disregard, and observed that "one could argue" the omission shows SMP did not know the implication existed. It concluded: "SMP's thorough vetting process is inconsistent with and belies any allegations of intentional or reckless publication of the defamatory implication." At most, the panel said, the record showed SMP "made a poor choice of words in frame 3," which it called "a negligent error at best," and "a negligent error is not a basis for a finding of actual malice."

What the court did not decide

This is the part most easily lost. The panel resolved the case on the intent component alone, and footnote 20 says so:

Because we conclude that the record evidence is insufficient to establish the intent component of the actual malice standard, we do not reach whether Moore established that SMP knew or recklessly disregarded that the implied statement was false.

Moore v. Senate Majority PAC, No. 23-13531, slip op. at 44 n.20.

Footnote 19 adds a second limit: the conclusion that this ad did not establish intent "does not mean that, in another case, the defendant's intent to defame could never be inferred from the allegedly defamatory implied statement." The court also declined to reach SMP's other appellate arguments about material falsity, the jury instructions and the size of the award.

How an Appeals Court Can Take a Verdict Away

Two mechanisms combined here, and both are worth understanding because they are what let a court undo a jury's work.

The first is the renewed motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). A party that moved for judgment during trial can renew the motion after the verdict. The standard the panel applied, quoting Henderson v. Ford Motor Co., 72 F.4th 1237, 1244 (11th Cir. 2023), is that "Where no legally sufficient evidentiary basis exists for a reasonable jury to find for that party on that issue, judgment as a matter of law is proper." Denial of that motion is reviewed de novo, with reasonable evidentiary inferences drawn for the non-moving party.

The second is specific to public-figure defamation. Under Bose, an appellate court has a First Amendment duty to "make an independent examination of the whole record" and "determine whether the record establishes actual malice with convincing clarity." That duty, the Supreme Court said, "cannot be delegated to the trier of fact." The Eleventh Circuit also quoted Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686 to 687 (1989), for the proposition that alleged defamation of a candidate for elective office "presents what is probably the strongest possible case for application of the New York Times rule, and the strongest possible case for independent review."

Put together: the jury's credibility calls survived, and the verdict still did not, because the appellate court independently assessed whether the surviving evidence met a constitutional clear-and-convincing threshold on each element.

The Standing Law This Touches

Nothing in this decision changes the basic architecture of a defamation claim. A plaintiff still has to establish the familiar components we set out in the elements a defamation plaintiff has to prove: a false statement of fact about the plaintiff, publication to a third party, the required degree of fault, and harm.

What the case sharpens is the fault element for one category of plaintiff. As our explainer on public-figure defamation claims describes, a public figure carries the Sullivan actual malice burden by clear and convincing evidence rather than a negligence burden. The Eleventh Circuit has now specified what that burden contains when the claim rests on implication rather than an express false statement.

The substantive tort law applied was Alabama's, including Alabama's recognition of defamatory implication and the state's false-light tort as described in Flickinger v. King, 385 So. 3d 504, 517 (Ala. 2023). Readers comparing this to state practice can see how Alabama handles defamation and false-light claims and work outward through our state-by-state defamation coverage, since the fault standard is federal constitutional law but almost everything around it is not.

The $8.2 million figure is also a useful reality check for anyone reading about what defamation awards actually look like and how they are calculated. A compensatory award can be substantial and still not survive post-trial and appellate review of a single constitutional element.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The single most common misreading of a story like this one is that the Supreme Court decided something. It did not. A denial of certiorari is a decision not to hear a case, it expresses no view on whether the decision below was right, and it has no precedential force. The authority a lawyer would cite coming out of October 5 is the Eleventh Circuit's April 24 opinion, not anything the Supreme Court said, because the Supreme Court said nothing.

The second misreading is that the ruling blesses attack advertisements generally. It does not. The panel held that this record, on this component, did not clear a clear-and-convincing threshold. Footnotes 19 and 20 both narrow the holding by hand: the court expressly left open that another publication could itself support an inference of intent, and it never decided whether SMP knew the implication was false.

What is genuinely consequential is the structure of the rule. By separating the intent component from the falsity component, the Eleventh Circuit made implication claims materially harder to win in Alabama, Florida and Georgia than claims about an express false statement. A plaintiff can now prove the defendant knew the implied message was false and still lose, if the evidence does not also show the defendant meant to send that message or recklessly disregarded that it was being sent.

The practical lesson in the vetting analysis cuts against intuition. SMP's documented fact-check of each individual frame, which an ordinary observer might read as proof the organization knew exactly what it was publishing, worked in its favor. The panel treated that documented fact-check as cutting against a finding of actual malice, noting that "one could argue" the omission of any check on the implication shows SMP did not know the implication existed, and it treated the on-screen citations as further undermining Moore's argument.

Finally, note what the independent-review duty did here. The jury's disbelief of SMP's witnesses was left undisturbed, and the verdict fell anyway. In public-figure defamation, appellate review of actual malice is not the usual deferential look at a verdict.

This is general legal information, not legal advice. It covers federal law in the Eleventh Circuit and Alabama state defamation law, and reflects sources verified on October 8, 2026. Laws change and this story is developing; consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• Can a public figure sue for defamation?
• The elements of a defamation claim
• Alabama defamation and false-light law
• Defamation laws state by state
• How much can you sue for defamation?

Last updated: 2026-10-08. This is a developing story; details verified as of 2026-10-08.

Frequently Asked Questions

Did the Supreme Court rule that the attack ad against Roy Moore was legal?

No. On October 5, 2026 the Court denied certiorari in No. 26-122, which means it declined to hear the case. A denial of certiorari expresses no view on the merits and sets no precedent. The decision that governs is the Eleventh Circuit's April 24, 2026 opinion in No. 23-13531.

What is defamation by implication?

It is a defamation claim built on what a publication implies rather than what it literally says. The Eleventh Circuit described it, quoting 50 Am. Jur. 2d Libel and Slander section 161, as occurring when a defendant juxtaposes a series of facts to imply a defamatory connection between them. Moore's claim was that frames 2 and 3 of the ad, each an accurate quotation on its own, together implied he had solicited sex from a 14-year-old girl.

What is the intent component of actual malice that Moore failed to prove?

In the Eleventh Circuit, a public figure bringing an implication claim must prove by clear and convincing evidence not only that the defendant knew of or recklessly disregarded the falsity of the implication, but also that the defendant intended to communicate the defamatory meaning or recklessly disregarded it. The panel found the record inadequate on that second component and, under footnote 20, never reached the first.

How can an appeals court overturn a jury verdict in a defamation case?

Two mechanisms applied here. Under Federal Rule of Civil Procedure 50(b) a party can renew a motion for judgment as a matter of law after the verdict, and the denial of that motion is reviewed de novo; judgment is proper where no legally sufficient evidentiary basis exists for a reasonable jury to find for the non-moving party. Separately, in public-figure defamation cases Bose Corp. v. Consumers Union requires an appellate court to make an independent examination of the whole record on actual malice.

Does this decision apply outside Alabama?

The opinion is published and binds federal district courts in the Eleventh Circuit, which covers Alabama, Florida and Georgia. It is not binding on other circuits or on state courts outside the circuit, although it aligns with decisions the panel cited from the First, Third, Sixth and Seventh Circuits.

What happens to the $8.2 million verdict?

The Eleventh Circuit reversed the district court's order denying SMP's renewed motion for judgment as a matter of law and remanded with instructions to enter judgment for SMP, and it stated that the jury verdict cannot stand. We have not independently verified the district court's entry of judgment on remand, so we are not reporting on that step.

Did any Justice explain the denial of review?

No. The docket for No. 26-122 records only the entry Petition DENIED on October 5, 2026, with no noted dissents, statements or reasons. An earlier application for a stay, No. 25A1396, was denied by Justice Thomas on June 29, 2026, also without a published explanation on the docket.