Former judge and failed GOP Senate candidate Roy Moore brought an emergency motion to the Supreme Court, as he seeks to save the $8.2 million jury award he won over a campaign ad that he said falsely portrayed him as soliciting sex from a 14-year-old girl. An appeals court vacated the Alabama jury’s verdict in April, and Moore has signaled that he will appeal that loss to the justices.

In the meantime, his emergency application asked to halt the appellate ruling from taking effect while he prepares his Supreme Court petition. Moore said that without high court intervention, his ability to collect will be hampered if the justices ultimately grant review of his petition and side with him.  

His application went to Justice Clarence Thomas, because Thomas is the justice assigned to receive urgent motions from the circuit that ruled against Moore on appeal. Justices can refer these filings to the full court or act on them alone. They typically refer significant ones to the full court (and when individual justices deny applications, applicants can then ask other justices for relief until they are fully rejected). Thomas does not yet appear to have acted on the application or called for the opposition to respond to it.

The appeals court last week declined to halt its ruling from taking effect while Moore petitions the justices. The group that ran the ad, Senate Majority PAC, successfully argued to the appeals court that it shouldn’t halt its ruling from taking effect because, among other reasons, it said the Supreme Court is unlikely even to grant review of Moore’s forthcoming petition, much less side with him.

Whatever the outcome of Moore’s application, the court will still be free to grant review of his petition after he files it and the opposition has a chance to respond.

As Moore noted in his application, Thomas and Justice Neil Gorsuch have urged reconsideration of the “actual malice” standard that public figures must meet to win defamation claims, a standard that stems from the court’s landmark 1964 opinion in New York Times v. Sullivan. But it takes four justices to grant review of petitions, and the issue has not gained traction at the high court.  

Pending separately before the justices is a petition from Alan Dershowitz, who is suggesting that the justices discard the Sullivan precedent, or at least narrow it. He unsuccessfully sued CNN over its coverage of his representation of President Donald Trump in impeachment proceedings. The justices have been putting off deciding whether to grant or deny Dershowitz’s petition, which could be a sign that Thomas or Gorsuch is writing dissents from a forthcoming denial, though the court can still choose to take it up. The justices are next set to announce action on pending petitions on Monday.

Trump himself signaled he will petition the justices next month in his own defamation appeal that he lost to CNN in the lower courts.

In its ruling against Moore, the U.S. Court of Appeals for the 11th Circuit agreed with Senate Majority PAC that Moore failed to present clear and convincing evidence that the group published the implication in the ad with “actual malice,” as required under Sullivan, which requires showing that it was published with knowledge that it was false or with reckless disregard for whether it was false.

The appeals court recounted that the group cited news reports in running the ad that said, among other things, in separate individual frames, that “Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls,” and “[o]ne he approached ‘was 14 and working as Santa’s helper.’” Although the jury sided with Moore, the appeals court said he failed to prove that Senate Majority PAC intended or recklessly disregarded that its ad implied he had solicited sex from a 14-year-old who was working as Santa’s helper.

In his Supreme Court application, Moore said the ad “fused separate reports and cut and added language into a single accusation that Moore had solicited sex from a fourteen-year-old Santa’s helper and had been banned from the mall for doing so.” He provided a link to the ad and wrote that he “implores the Court to watch and listen to the actual ad, rather than the dissected version that appears when the frames are printed in written argument.”

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