Reply Brief — Roy Stewart Moore, Applicant v. Senate Majority PAC, et al.

No. 25A1396

Supreme Court of the United States

ROY STEWART MOORE,

Applicant,

v.

SENATE MAJORITY PAC,

Respondent.

ON APPLICATION TO STAY THE MANDATE OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

REPLY IN SUPPORT OF EMERGENCY APPLICATION TO STAY

THE MANDATE PENDING PETITION FOR A WRIT OF CERTIORARI

Jeffrey S. Wittenbrink

Counsel of Record for Applicant

Wittenbrink Law Firm

331 St. Ferdinand Street

Baton Rouge, LA 70802

(225) 308-6850

jwittenbrink@thelawyerbr.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................................... ii

INTRODUCTION ........................................................................................................... 1

ARGUMENT ................................................................................................................... 5

I. The Court is likely to grant certiorari and reverse .................................................. 5

A. The panel did not decide a question of law; it independently re-examined the

historical fact of SMP’s intent that the jury found on proper instructions .... 5

B. Respondent’s “mere disbelief” argument ignores the affirmative evidence the

jury credited: the classic Harte-Hanks scenario .............................................. 9

C. The question is unsettled and the subject of an open division, as the Eleventh

Circuit itself has recognized ........................................................................... 13

II. The likelihood of irreparable injury is apparent and strong................................ 15

A. Respondent is a Super PAC with no productive means of income and no

permanent assets ............................................................................................ 15

B. Respondent spends all of its money each election cycle and ends in debt ........... 15

III. Applicant has satisfied every requirement for a stay; respondent overstates the

standard ................................................................................................................. 16

A. The governing standard is the four-factor balance, not the near-impossibility

respondent demands ....................................................................................... 17

B. The first two and most critical factors are satisfied ............................................. 17

C. The balance of harms and the public interest favor a brief stay ......................... 18

CONCLUSION ............................................................................................................. 18

i

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)................................................. 10

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) ................. 8, 10, 17

Bressler v. Fortune Magazine, 971 F.2d 1226 (6th Cir. 1992) .................................... 14

Conkright v. Frommert, 556 U.S. 1401 (2009) ....................................................... 17-18

Duc Tan v. Le, 300 P.3d 356 (Wash. 2013) ................................................................. 14

Garrison v. Louisiana, 379 U.S. 64 (1964) .................................................................. 13

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ........................................................ 13

Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969) .................................................. 15

Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) ..... 1-3, 5, 7-11, 17

Hinerman v. Daily Gazette Co., 423 S.E.2d 560 (W. Va. 1992) .............................. 1, 14

Hunt v. Liberty Lobby, 720 F.2d 631 (11th Cir. 1983) .................................................. 1

Kendall v. Daily News Publ’g Co., 716 F.3d 82 (3d Cir. 2013) ................................... 13

Levan v. Cap. Cities/ABC, Inc., 190 F.3d 1230 (11th Cir. 1999) ............. 1, 5, 7, 14, 17

Manzari v. Associated Newspapers, Ltd., 830 F.3d 881 (9th Cir. 2016) .................... 15

Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) ................ 1-2, 5, 12-13, 19

Moore v. Cecil, 174 F.4th 862 (11th Cir. 2026) ....................................... 1, 4-6, 9-13, 16

Murphy v. Boston Herald, Inc., 865 N.E.2d 746 (Mass. 2007) ................................... 14

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ........................................... 4, 13

Newton v. Nat’l Broad. Co., 930 F.2d 662 (9th Cir. 1990) .......................................... 12

Nken v. Holder, 556 U.S. 418 (2009) ........................................................................... 17

Palmtag v. Republican Party of Neb., 999 N.W.2d 573 (Neb. 2024) .......................... 12

Philip Morris USA Inc. v. Scott, 561 U.S. 1301 (2010)............................................... 16

Reuber v. Food Chem. News, Inc., 925 F.2d 703 (4th Cir. 1991)................................ 14

Saenz v. Playboy Enters., Inc., 841 F.2d 1309 (7th Cir. 1988) ................................... 12

St. Amant v. Thompson, 390 U.S. 727 (1968) ......................................................... 7, 11

Sampson v. Murray, 415 U.S. 61 (1974) ..................................................................... 17

Schiavone Constr. Co. v. Time, Inc., 847 F.2d 1069 (3d Cir. 1988) ............................ 15

Time, Inc. v. Pape, 401 U.S. 279 (1971)................................................................... 2, 11

Young v. Gannett Satellite Info. Network, Inc., 734 F.3d 544 (6th Cir. 2013)....... 5, 14

Constitutional Provisions

U.S. Const. amend. VII .................................................................................................. 7

Rules

Fed. R. App. P. 39(f)(3) ................................................................................................. 18

ii

Other Authorities

Nathan S. Chapman, The Jury’s Constitutional Judgment, 67 Ala. L. Rev. 189

(2015) ......................................................................................................................... 8

iii

INTRODUCTION

Respondent mischaracterizes applicant’s position as seeking to “engage [in] a

sort of garden variety correction of purported error” in this case. Opp. 11. While the

applicant does seek to correct the Eleventh Circuit’s error and restore the jury

verdict upheld by the trial court, the central issue before this Court is the urgent

need to resolve the profound conflict between an Appellate Court’s Independent

Review and the Seventh Amendment, particularly regarding the deference owed to

a jury’s factual determinations. The Eleventh Circuit has apparently never affirmed

a jury verdict for damages in favor of a public figure after reviewing for “actual

malice.”1 Here, the Eleventh Circuit not only reversed the trial court but remanded

and entered judgment for the Defendant. Numerous courts of appeals have

recognized that actual malice may be inferred where a publisher of defamatory

content removes context from a photograph, alters a video clip to change its

meaning, takes quotes out of context, deletes exculpatory language, or omits

information that would disprove a defamatory statement. See, e.g., Masson v. New

Yorker Magazine, Inc., 501 U.S. 496, 514–17 (1991); Harte-Hanks Commc’ns, Inc. v.

Connaughton, 491 U.S. 657, 692–93 (1989); Hinerman v. Daily Gazette Co., 423

S.E.2d 560 (W. Va. 1992). This is the same common-sense analysis applied in

1 In

every case reaching this Court on appeal after a public-figure plaintiff obtained a jury

damages award, the Eleventh Circuit either reversed outright, vacated, or remanded for a new trial,

each time concluding that the evidence was insufficient to establish actual malice by clear and

convincing evidence. The three principal cases documenting this pattern are Hunt v. Liberty Lobby,

720 F.2d 631 (11th Cir. 1983), Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230 (11th Cir. 1999), and

Moore v. Cecil, 174 F.4th 862 (11th Cir. 2026).

1

Masson and Harte-Hanks, serving as controlling precedent, yet the Eleventh Circuit

refuses to adopt this approach.

Respondent oversimplifies and misstates the opinion of the trial court, giving

insufficient weight to that court’s thorough analysis under Harte-Hanks and

Masson. The Eleventh Circuit failed to properly analyze and defer to the jury’s

findings, which appropriately considered all of the evidence in concluding that

actual malice was proven by clear and convincing evidence when viewed as a whole,

including the video evidence as presented, rather than as reduced to a dry textual

presentation. Even the Eleventh Circuit’s analysis of the written words fails to

recognize that the omission of context altered the meaning of the quoted assertions.

Furthermore, SMP is not entitled to a presumption of good faith in its own

presentation of “fact-checking” efforts, a presumption granted by the Eleventh

Circuit but rejected by the jury. Remarkably, the Eleventh Circuit stated that

because SMP failed to fact-check the one implication the video presentation plainly

makes, allegedly because its employees simply did not realize it existed. Moore, 174

F.4th at 862, 887. A reporter for a newspaper or television program may be entitled

to credit for fact-checking undertaken to publish what it believes to be true, see

Time, Inc. v. Pape, 401 U.S. 279, 291 (1971); but whether SMP, a political action

committee, is entitled to such a credit is a question for the jury, a credibility

determination, not a legal presumption. SMP is an independent political action

committee whose objective is to win elections. As its president testified, on video

2

and before the jury, SMP “do[es] what it takes to win.”2 (testimony of J.B. Poersch)

[record cite to be supplied]. With that objective before it, the jury could readily find

that SMP’s approach to “fact-checking,” as a political operative, was to determine

what it could say and get away with. The jury obviously reached that conclusion.

As in most reported defamation cases, the question of actual malice is a

mixed question of fact and law. Respondent’s primary contention nonetheless rests

on the premise that the decision below presents only a question of law: whether the

trial record contained legally sufficient evidence of actual malice. On that premise,

respondent maintains, the Eleventh Circuit was free to resolve the question de novo

and without deference to the jury’s verdict, so that applicant’s objection reduces to

mere disagreement with a legal conclusion. Opp. 11–13. The premise conflates two

distinct inquiries. The legal sufficiency of the evidence is a question of law; but what

a defendant knew and intended when it published is a question of historical fact, see

Harte-Hanks, 491 U.S. at 694 (White, J., concurring in the judgment), and this

Court has never held that an appellate court may, in the name of “independent

review,” redetermine facts against a jury that found them on proper instructions

and by clear and convincing evidence.

The Eleventh Circuit’s opinion illustrates the conflation. It deferred, as it had

to, to the jury’s determination that the SMP witnesses were not credible, holding

that “the jury must have discredited and rejected the SMP witnesses’ testimony”

that they did not intend the advertisement’s defamatory meaning, and treating that

2 Quote from the original trial transcript from a video shown to the jury on cross-examination. The

transcript will be appended to the application for a Writ of Certiorari.

3

credibility finding as binding because SMP had “not shown [it is] clearly erroneous.”

App. A3 (“11th Cir. Op.”) 37–38; see Opp. 2, 8. But the jury found more than that the

SMP witnesses had lied. The Appellate Court agreed that in order to prove actual

malice in this case, the jury was instructed that Moore had to prove SMP “intended

to convey that Moore solicited sex from Wendy Miller when she was 14, or . . .

recklessly disregarded” that the advertisement conveyed that meaning, 11th Cir.

Op. 34–35 & n.17, the jury found that intent by clear and convincing evidence.

Moore v. Cecil, 174 F.4th 862, 888 (11th Cir. 2026) (Jury Verdict Form). To that

finding the panel gave no deference. It independently weighed the evidence and

pronounced SMP’s conduct in framing the ad as “a poor choice of words” and “a

negligent error at best.” 11th Cir. Op. 43. Substituting an appellate court’s

assessment of a defendant’s state of mind for the jury’s is not legal review of the

verdict’s sufficiency; it is the redetermination of a historical fact found by the jury.

The record, in any event, supports the verdict. SMP did not make the

“erroneous statement . . . inevitable in free debate” that New York Times Co. v.

Sullivan, 376 U.S. 254, 271–72 (1964), protects. The undisputed evidence, credited

by the jury, was that SMP reviewed its sources line by line, knew they reported only

that Moore told a fourteen-year-old she “looked pretty,” and then juxtaposed two

accurate quotations to assert what no source had said: that Moore solicited sex from

3 Citations

to “11th Cir. Op.” and “Dist. Ct. Op.” are to the appendix to the Emergency

Application, which is not reattached to this reply. App. A: Opinion, Moore v. Cecil, 174 F.4th 862

(11th Cir. Apr. 24, 2026); App. B: Opinion and Order Denying Judgment as a Matter of Law, Moore

v. Senate Majority PAC, No. 4:19-cv-01855-CLM (N.D. Ala. Sept. 29, 2023) (Doc. 252); App. C: Order

Denying Stay of the Mandate (11th Cir. June 8, 2026); App. D: The Shopping Mall Ad (television

advertisement), reproduced frame by frame.

4

that child. The judge who presided over the trial described the advertisement

precisely: it “wasn’t commenting on a story; it was creating a story.” App. B (“Dist.

Ct. Op.”) 1. That is the deliberate manufacture of a false meaning, the wrong this

Court addressed in Masson, 501 U.S. at 517. On materially indistinguishable facts,

courts applying Harte-Hanks have sustained jury findings of actual malice,

recognizing that a publisher may not “publish an accusation that it knows has no

evidence behind it as a fact to fit its desired storyline and then cloak itself in the

First Amendment.” Young v. Gannett Satellite Info. Network, Inc., 734 F.3d 544, 548

(6th Cir. 2013).

The deference owed a jury’s findings on independent review is, as the

Eleventh Circuit has acknowledged, a question this Court “has not resolved,” Levan

v. Cap. Cities/ABC, Inc., 190 F.3d 1230, 1230 n.27 (11th Cir. 1999); and it is

outcome-determinative here, for the trial court, conducting the same independent

review, found the evidence “sufficient to support the jury’s finding of actual malice,”

11th Cir. Op. 14. That unresolved conflict, the panel’s departure from the deference

Harte-Hanks requires, and applicant’s irretrievable loss of the only security for an

$8.2 million judgment together satisfy every requirement for a stay.

ARGUMENT

I. THE COURT IS LIKELY TO GRANT CERTIORARI AND REVERSE.

A. The panel did not decide a question of law; it independently reexamined the historical fact of SMP’s intent that the jury found on proper

instructions.

Respondent’s argument is that the panel did exactly what this Court’s

precedents require: it deferred to the jury’s credibility findings but reviewed the

5

“ultimate” question of actual malice de novo, “as a matter of law.” Opp. 11–13. The

Eleventh Circuit deferred to the jury’s credibility determination, accepting that the

jury “must have discredited and rejected the SMP witnesses’ testimony” and

treating that determination as binding because SMP had “not shown [it is] clearly

erroneous.” 11th Cir. Op. 37–38. Respondent concedes the point. Opp. 2, 8.

The jury, however, found more than that the SMP witnesses had lied. On the

district court’s instructions, it found that SMP “intended to convey that Moore

solicited sex from Wendy Miller when she was 14, or . . . recklessly disregarded”

that the advertisement conveyed that meaning. 11th Cir. Op. 34–35 & n.17. That

finding of intent is the gravamen of the verdict, and the panel did not defer to it. It

independently re-examined the record and concluded that SMP’s juxtaposition was,

at most, “a poor choice of words”—“a negligent error at best.” 11th Cir. Op. 43.

Whatever else that is, it is not legal review of the verdict’s sufficiency. It is the

panel’s own resolution of the historical question the jury had already resolved: what

SMP actually intended when it assembled the advertisement.

The trial court provided a thorough analysis of the actual-malice findings in

its 104-page opinion upholding the jury verdict, at pages 56–58, in the section

entitled “De Novo Review of Actual Malice Verdict.” There the court drew on record

quotes from both the undisputed facts and the jury’s findings and summarized:

Combining the undisputed facts and credibility findings tells a

cohesive story of actual malice: SMP knew that Wendy Miller did not

tell the media that Moore solicited her for sex when she was 14, but to

add sting to the Shopping Mall Ad, SMP meshed Miller’s quote about

being approached as Santa’s Helper with a quote from Glynn Wilson’s

blog post about a sex-based mall ban to make the viewer believe that

6

someone who knew Roy Moore said that Moore solicited sex from

Miller when she was 14 and working as Santa’s helper. Or, using the

Supreme Court’s phrasing in Harte-Hanks, when you read the news

articles that do not mention Moore soliciting Miller for sex in the light

of the jury’s credibility determination that SMP knew that it was

saying Moore was soliciting Miller for sex, “the conclusion that [SMP]

acted with actual malice inexorably follows.”

Dist. Ct. Op. 58 (quoting Harte-Hanks, 491 U.S. at 691).

That is precisely the holistic, record-as-a-whole assessment this Court’s cases

require, and the panel set it aside.

Respondent recharacterizes the panel’s resolution as a “pure question of law,”

and on that basis dismisses applicant’s Seventh Amendment authorities as “wholly

irrelevant.” Opp. 12 & n.2. The question of whether the evidence is legally sufficient

to meet the actual-malice standard is a matter of law. But the antecedent fact of

what a defendant knew and intended is a historical one, as respondent’s own

principal authority confirms. In Harte-Hanks, Justices White and Rehnquist

explained that “witness credibility and knowledge of falsity are ‘historical facts’ that

must be reviewed for clear error under Rule 52.” 491 U.S. at 694 (White, J.,

concurring in the judgment). A defendant’s intent to convey a defamatory meaning

is no less a historical fact than its knowledge of falsity; both describe a state of mind

that existed at the moment of publication. See St. Amant v. Thompson, 390 U.S.

727, 731 (1968). When a court redetermines that fact in order to set aside a verdict,

it has “re-examined” a “fact tried by a jury.” U.S. Const. amend. VII. And whether

such jury-found facts are owed deference, or may be redetermined de novo, is the

precise question the Eleventh Circuit has admitted this Court “has not resolved.”

Levan, 190 F.3d at 1230 n.27.

7

This redetermination of mens rea is a problem the plaintiff in Harte-Hanks

himself raised, as Professor Nathan Chapman has observed. Connaughton argued

that the independent-review doctrine was “practically infeasible” because it

required an appellate court to determine mens rea on contested evidence, and

“constitutionally troublesome” when applied to a jury judgment “because the

Seventh Amendment prohibits reexamination of any fact found by a jury.”

As Professor Chapman explains:

So long as the trial judge assigns responsibility to the jury for

determining whether there was actual malice, rather than asking the

jury to return a special verdict determining the facts of the case, a

reviewing court applying the Harte-Hanks methodology (if not its

dicta) would be bound by the jury’s reasonable determination of actual

malice. . . . Instead, it took the jury’s application of the actual malice

standard at face value and worked backwards from there, as a court

ordinarily would do when reviewing a jury verdict. Regardless of the

Court’s dicta in Bose and its declaration in Harte-Hanks that actual

malice is a question of law, the Court’s actions in Harte-Hanks clearly

demonstrate deference to a jury’s reasonable application of

constitutional doctrine.

Nathan S. Chapman, The Jury’s Constitutional

Judgment, 67 Ala. L. Rev. 189, 232–33 (2015).

Even on respondent’s own premise that the panel could review the ultimate

question independently, the panel departed from this Court’s method. The panel

recited the governing framework but honored only part of it. Independent review

carries two further commands, both drawn from the very decisions the panel cited,

and the panel observed neither. First, independent review does not authorize a

court to substitute its own finding of intent for the jury’s; it proceeds “on the

assumption that the jury made all the supportive findings it reasonably could have

8

made.” Harte-Hanks, 491 U.S. at 700 (Scalia, J., concurring in the judgment); see id.

at 688 (majority op.).

The supportive finding here is plain: that SMP intended the implication its

own line-by-line vetting had shown no source supported. The panel found the

opposite. Second, independent review weighs the record “in its entirety.” Id. at 693.

In Harte-Hanks, the Court combined the jury’s disbelief of the defendant’s witnesses

with the affirmative evidence of “purposeful avoidance of the truth” and held that a

finding of actual malice “inexorably follow[ed].” Id. at 692–93. The panel instead

divided applicant’s proof into three isolated parts—the jury’s disbelief, the

advertisement, and SMP’s vetting—and rejected each as insufficient standing alone.

11th Cir. Op. 37–43. It never asked whether the evidence, taken together, supported

the jury’s finding.

The consequences of getting the deference question wrong are not abstract.

The district court, conducting the same independent review the panel later

performed, found that “the jury’s fact findings and credibility determinations [were]

not clearly erroneous” and that “Moore presented sufficient evidence to support the

jury’s finding of actual malice.” 11th Cir. Op. 14. Two courts independently

reviewed one record and divided. The difference was not the evidence; it was the

deference, the question respondent insists is settled.

B.

Respondent’s “mere disbelief” argument ignores the affirmative

evidence the jury credited: the classic Harte-Hanks scenario.

Respondent, like the panel, recasts applicant’s case as one of “mere disbelief,”

urging that “a libel plaintiff must present affirmative evidence” and that “mere

9

disbelief of SMP’s witnesses is not sufficient.” Opp. 14 (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 257 (1986), and Bose, 466 U.S. at 512). The principle is

sound; its application here is not. Anderson itself asks only whether “a reasonable

jury could” find actual malice by clear and convincing evidence, with the evidence

and all justifiable inferences taken in the verdict-winner’s favor, 477 U.S. at 252,

255; it does not license a reviewing court to weigh the proof and supply findings of

its own. And this was never a case of disbelief standing alone.

Bose held that an appellate court may not infer actual malice from a witness’s

refusal to admit a mistake about an ambiguous fact, there whether sound “tended to

wander ‘about the room,’” a description this Court found to be “one of a number of

possible rational interpretations of an event that bristled with ambiguities.” 466

U.S. at 512. Harte-Hanks fixed the rule’s limit, accepting that the defendant’s

witness was not credible but, “[u]nlike the District Court,” declining to rest a malice

finding on disbelief alone. 491 U.S. at 511–12. The teaching is narrow: disbelief of a

witness’s account of an ambiguous matter is not, by itself, proof of knowing

falsehood. It says nothing of a case in which the plaintiff also proves, through

undisputed evidence, that the defendant knew the truth and published its opposite.

The record contains exactly that additional proof, and it comes from SMP. Its

research director testified, and the jury credited, that SMP’s staff reviewed the

advertisement “line by line by line” to confirm that “every single thing was factually

accurate,” pairing each assertion with its source. 11th Cir. Op. 16–18. That process

told SMP precisely what its sources did and did not say: that when Wendy Miller

10

was fourteen, Moore told her she “looked pretty,” and that no source reported he

solicited sex from her. Dist. Ct. Op.; see 11th Cir. Op. 13–14 (Miller testifying she

“never said” Moore solicited her). SMP then assembled two accurate quotations into

the charge that he had. A jury may treat that sequence—knowledge of what the

sources said, followed by publication of what they did not—as affirmative evidence

of intent, precisely as Harte-Hanks treated the newspaper’s deliberate refusal to

hear the tapes that would have confirmed or dispelled the charge. 491 U.S. at 692.

Respondent’s answer, taken from the panel, is that a defendant’s verification

efforts “militate against a finding of actual malice.” Opp. 14–15 (quoting Time, Inc.

v. Pape, 401 U.S. 279, 291 (1971)). That rule protects a publisher whose checking

gives it reason to believe its statement is true; Pape’s concern was liability for

“errors that nonetheless occur” despite a “standard of care . . . to avoid knowing

falsehood.” 401 U.S. at 291. On the jury’s findings, SMP’s review did not produce an

inadvertent error. It produced knowledge. To label the resulting juxtaposition “a

negligent error at best,” 11th Cir. Op. 43, is to make a finding about SMP’s state of

mind, the finding the jury made the other way and the one independent review was

bound to assume in the verdict’s favor. A defendant “cannot . . . automatically

[e]nsure a favorable verdict by testifying” to its own good faith; whether to credit

that testimony is for the jury. St. Amant, 390 U.S. at 732.

The panel reasoned that, because the advertisement only “could convey” the

implication, it could not establish that SMP “intended that implication.” 11th Cir.

Op. 40–41. The premise, that actual malice is subjective and turns on the

11

defendant’s state of mind rather than the audience’s impression, is correct. See

Newton v. Nat’l Broad. Co., 930 F.2d 662, 680–81 (9th Cir. 1990); Saenz v. Playboy

Enters., Inc., 841 F.2d 1309, 1318 (7th Cir. 1988). But it cuts the other way. Because

the inquiry turns on what SMP actually intended, and intent can seldom be proven

except by inference from circumstantial evidence, it is a paradigmatic jury question

wherever the evidence permits the inference. See Palmtag v. Republican Party of

Neb., 999 N.W.2d 573 (Neb. 2024). The panel itself acknowledged that “the

publication itself” can demonstrate intent to defame “even when . . . the defendant

denies such an intent.” 11th Cir. Op. 41 n.19. Whether this advertisement did so

was a question for the jury, not for an appellate court re-reading a cold record. The

panel’s contrary course converted a contested jury question into a directed verdict.4

The case is, moreover, governed by Masson, which respondent and the panel

misread. Respondent insists this is not a Masson case because “SMP did not alter

any quotes” and “accurately cited” each source. Opp. 19–20. But Masson did not

turn on tampering with the letters of a quotation; it held that an alteration supports

a finding of actual malice when it “result[s] in a material change in the meaning

conveyed.” 501 U.S. at 517. The wrong is the manufacture of a meaning the source

never conveyed—in Masson, by fabricating quotations; here, by juxtaposing two

true ones to assert a charge no source had made. The trial court understood the case

in exactly those terms, instructing the jury that Moore had to prove SMP “knew

4 Applicant suggests that the viewing of the video, the actual advertisement in question, makes

talk of “inference” seem superfluous. Combining the evidence of the video, the accurate quotes that

were excerpted and meshed, and the highly improbable explanation of SMP’s employees and

representatives that they did not “intend” the result all combined to make the jury’s verdict

eminently correct.

12

that it was materially changing the meaning of the quotes to convey false

information about Moore,” or recklessly disregarded that risk. 11th Cir. Op. 34–35

& n.17. The jury found that material change of meaning. Respondent’s reading

would immunize the assembly of accurate quotations to fabricate a falsehood,

conduct more deliberate than the altered quotation Masson condemned, because the

publisher cannot even claim it was faithfully reporting what a source said. Its

remaining distinctions—that SMP’s witnesses said their intent was “to amplify

existing reporting,” Opp. 20, and that the advertisement carried citations, Opp.

19—are merits points the jury resolved against it.

Finally, respondent’s invocation of Sullivan’s “breathing space” for “erroneous

statement . . . inevitable in free debate,” Opp. 18, ignores the line Sullivan drew.

The actual-malice standard shields the “erroneous statement . . . honestly made,”

Sullivan, 376 U.S. at 278; it does not shield the calculated falsehood. “[T]he use of

the known lie as a tool is at once at odds with the premises of democratic

government,” and “calculated falsehood[s]” enjoy no constitutional protection.

Garrison v. Louisiana, 379 U.S. 64, 75 (1964); accord Gertz v. Robert Welch, Inc.,

418 U.S. 323, 340 (1974). The jury found that SMP did not err. It manufactured its

own story, and the Sullivan decision was never meant to immunize that.

C. The question is unsettled and the subject of an open division, as the

Eleventh Circuit itself has recognized.

Respondent meets the cert-worthiness of the deference question by showing

that the courts of appeals agree on the elements of a defamation-by-implication

claim. Opp. 16–18. They do, and applicant does not contend otherwise. See Kendall

13

v. Daily News Publ’g Co., 716 F.3d 82, 90 (3d Cir. 2013). That consensus is beside

the point, because applicant’s question is not what a plaintiff must prove; it is how

much deference a jury’s finding that the plaintiff proved it commands when an

appellate court conducts independent review. On that question the law is unsettled,

and the Eleventh Circuit has said so. It has “recognize[d] . . . that the law is

unsettled as to the deference that we give to ‘facts’ found by the jury.” Levan, 190

F.3d at 1230 n.27. Respondent’s assertion that the question is settled cannot be

reconciled with the Eleventh Circuit’s own statement that it is not.

The uncertainty is not academic. Applying the same independent-review

standard to jury verdicts of actual malice, courts reach opposite results according to

the deference they extend the jury, and they do so, repeatedly, over dissent. Some

sustain the verdict. See Young, 734 F.3d at 548; Murphy v. Boston Herald, Inc., 865

N.E.2d 746 (Mass. 2007); Hinerman v. Daily Gazette Co., 423 S.E.2d 560 (W. Va.

1992); Duc Tan v. Le, 300 P.3d 356 (Wash. 2013) (en banc). Others independently

re-weigh the evidence and reverse. See Reuber v. Food Chem. News, Inc., 925 F.2d

703 (4th Cir. 1991) (en banc) (over the dissent of four judges); Bressler v. Fortune

Magazine, 971 F.2d 1226 (6th Cir. 1992) (over dissent). This case is itself the

clearest illustration: the trial judge and the panel, reviewing one record under one

standard, divided on the result. A question that recurs in every public-figure

defamation appeal, governs the allocation of authority between judge and jury, and

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remains expressly open is the hallmark of an issue warranting review, not the

“garden variety” error correction respondent describes. Opp. 11.5

II. THE LIKELIHOOD OF IRREPARABLE INJURY IS APPARENT AND

STRONG.

A. Respondent is a Super PAC with no productive means of income and no

permanent assets.

SMP is unique among the defendants that appear before this Court in that it

owns no material or intellectual property that could be seized to collect a judgment.

Everything SMP owns is liquid and is spent during each election cycle. Its funds are

not the product of labor to create a product or service but are voluntary donations

given to win elections, not to pay for lawsuits.

B. Respondent spends all of its money each election cycle and ends in

debt.

As cited in the application, SMP’s own records show that it has ended recent

election cycles millions, sometimes tens of millions, of dollars in debt. See Federal

Election Commission, Senate Majority PAC, Committee ID C00484642 (year-end

reports, 2022 and 2024 cycles). The cash SMP currently holds is dedicated to

electing candidates in the upcoming midterm elections and will almost certainly be

depleted there. See Opp. 24–25 (SMP reporting more than $74 million in cash on

hand and contributions exceeding $300 million per cycle). Without a bond in place,

applicant faces a significant risk that SMP will become insolvent and that its

principals will simply change its official name to the longer form of the acronym.

5 Compare

Manzari v. Associated Newspapers, Ltd., 830 F.3d 881 (9th Cir. 2016); Schiavone

Constr. Co. v. Time, Inc., 847 F.2d 1069 (3d Cir. 1988); Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.

1969).

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That risk is why the supersedeas bond matters. Applicant is not a judgment debtor

who might have difficulty “recouping funds” he has paid; that is the posture of the

cases respondent cites. See Opp. 25–26. He is the prevailing party who, at

respondent’s insistence, was required to be secured by an $8.2 million bond and who

stands to lose that security the moment the mandate issues. Respondent does not

dispute that the bond will then be released; it argues only that a stay “would . . .

prevent the district court from releasing the bond.” Opp. 26. The unrecoverable loss

of secured funds is the paradigm of irreparable harm. Philip Morris USA Inc. v.

Scott, 561 U.S. 1301, 1304–05 (2010) (Scalia, J., in chambers). The bond was

required precisely because a money judgment against a Super PAC whose finances

“fluctuate with the election cycle,” Opp. 24, is at risk; the question is not whether

SMP is solvent today but whether the only security for the judgment will survive

long enough for this Court to act.

III. APPLICANT HAS SATISFIED EVERY REQUIREMENT FOR A STAY;

RESPONDENT OVERSTATES THE STANDARD.

Respondent’s remaining submissions concern the stay standard and its

proposed alternative grounds for affirmance. Neither defeats a stay. The alternative

grounds, that the falsity component is unmet and that the advertisement’s “gist” is

true, Opp. 21–22, were not reached by the panel, which expressly declined to decide

them, 11th Cir. Op. 29 n.15, 44 n.20, and they turn on the same contested questions

the jury resolved against SMP. They do not diminish the fair prospect of reversal;

they are additional issues a reversal would leave open on remand.

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A. The governing standard is the four-factor balance, not the nearimpossibility respondent demands.

A stay pending certiorari turns on a reasonable probability that four Justices

will grant review, a fair prospect that a majority will conclude the decision below

was erroneous, and a likelihood of irreparable harm absent a stay, weighed together

with “the relative harms to applicant and respondent, as well as the interests of the

public at large.” Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J.,

in chambers). The first two factors are the most critical. Nken v. Holder, 556 U.S.

418, 434 (2009). Respondent does not engage that balance. It demands instead that

applicant prove recoupment of a money judgment would be “impossible,” Opp. 26

(quoting Conkright, 556 U.S. at 1403), and that any lesser showing is a mere

“possibility” that “weighs heavily against” relief, Opp. 25 (quoting Sampson v.

Murray, 415 U.S. 61, 90 (1974)). That framing mistakes the nature of the harm,

which Part II addresses.

B. The first two and most critical factors are satisfied.

For the reasons in Part I, there is a reasonable probability of certiorari: the

deference owed a jury’s finding of subjective intent is an important question the

Eleventh Circuit admits this Court has not resolved, Levan, 190 F.3d at 1230 n.27,

and on which courts—and the two courts in this case—divide. And there is a fair

prospect of reversal: the panel set aside a jury verdict by independently re-finding a

historical fact the jury found on proper instructions, in conflict with the deference

Harte-Hanks and Bose require and contrary to the assumption, even on independent

review, that the jury made the supportive findings it reasonably could have made.

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Respondent’s

contrary

submission

rests

on

the

same

“question

of

law”

recharacterization refuted above.

C. The balance of harms and the public interest favor a brief stay.

The equities are one-sided. The only harm respondent identifies is the

continued premium on a bond it has already posted, an expense fully recoverable

from applicant if the judgment is reversed, as respondent concedes. Opp. 26 (citing

Fed. R. App. P. 39(f)(3)). Against that recoverable cost stands applicant’s

irretrievable loss of an $8.2 million security. The public interest favors a stay as

well. Respondent says only that the mandate should issue “in the usual course,”

Opp. 27, but identifies no public interest served by dissolving the security for a

jury’s verdict before this Court can decide whether that verdict was wrongly set

aside. The public interest lies in the integrity of jury verdicts in the area where this

Court has demanded the most searching constitutional review, and in preserving,

for the brief interval the certiorari process requires, the status quo that has held

throughout this litigation. It is served, too, when a powerful political action

committee is held accountable for falsehoods used to gain power, by the only means

that reaches it: the loss of the funds that fuel that power, through payment of the

damages a jury awarded the person it wronged. Every Conkright factor, and the

public interest, supports the stay.

CONCLUSION

The Eleventh Circuit’s decision conflicts with the proper analysis of the

actual malice rule when dealing with misused quotations, the removal of context, or

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the omission of information that would disprove defamatory content. See Masson,

501 U.S. at 517. It grants a legal presumption for “fact-checking” that is instead a

jury question, and it conflicts with the Seventh Amendment’s instruction to refrain

from reexamining facts found by a jury. For these reasons, reversal is likely.

Without a stay, the loss of the security for the judgment would create irreparable

harm, given the nature of respondent’s operations and its lack of permanent assets.

For all of these reasons, the application for a stay of the mandate should be granted.

Respectfully submitted,

/s/ Jeffrey S. Wittenbrink

Counsel of Record for Applicant

Wittenbrink Law Firm

331 St. Ferdinand Street

Baton Rouge, LA 70802

(225) 308-6850

jwittenbrink@thelawyerbr.com

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