March 26, 2024

Mr. Christopher W. Weller, Sr., Esq.

Capell & Howard, P.C.
150 S. Perry St.
Montgomery, AL 36104

RE: Response to Your Letter; Notice of Counterclaim; and Demand for Retraction,
Correction, and Apology

Dear Mr. Weller,

I respectfully decline to retract, correct, or apologize for any of the statements you listed. In
your letter, you identified only four statements that I made that you claim are defamatory.
Three of them were made to the board and Mr. Foster in my capacity as the board’s attorney,
and the other was a statement where I refused to talk to the press. Nowhere in your letter did
you address the McDaniel/Burney rule, qualified privilege, or the actual-malice standard.
Even if you were able to overcome these behemoth-sized obstacles—which you are not—
you also will not be able to disprove the affirmative defense of truth. If you sue, your claim is
so baseless in law and fact that, when you lose, your client will risk paying my attorney fees
under the Alabama Litigation Accountability Act. Furthermore, although I have no desire to
sue Mr. Foster, if you sue me, then I will be forced to bring a compulsory counterclaim
concerning his defamatory statements about me.

Frankly, I believe you know all of this. I find it more likely that your demand letter was an
attempt to get me to turn on my client, as well as my friend Mr. Boles, or at least to give up
information that could plausibly provide enough information to make your otherwise
frivolous complaint plausible. That isn’t going to happen. To avoid causing further harm to
your client, I will take this opportunity to inform you of the material portions of law that you
failed to discuss and the counterclaim I must bring against your client if you sue. Instead of
wasting your client’s time and money, you should do the smart thing and walk away.

FACTS

1. The Statements in Question

For all the ink you spilled in the facts section of your letter, there are only a few statements
that you claimed were defamatory. Those statements were:
 • 1. Responding “I could, but I’m not going to,” in response to Jacob Holmes asking
whether I would tell him which criminal law Foster violated (“Statement 1):
• 2. Claiming that I “stated incorrectly that Mr. Foster’s alleged violation of ‘criminal
law’ arises under either Alabama Code Section 36-25A-6 (Alabama’s Open Meetings
Act) and/or Section 13A-11-30 (Alabama’s criminal eavesdropping statute)”
(“Statement 2”);
• 3. Claiming that I accused Mr. Foster of breaking a “federal law” in recording during
the executive session (“Statement 3”); and
• 4. The March 5, 2024, email in which I informed Foster that he had revealed
confidential information (“Statement 4”).

LEGAL ISSUES

“The elements of a cause of action for defamation 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.” McCaig v. Talladega Pub. Co., Inc., 544 So.2d
875, 877 (Ala. 1989) (citing Restatement (2d) of Torts § 558). Furthermore, if the plaintiff was
a public figure, or even a limited-purpose public figure, then you must prove by clear and
convincing evidence that the statement was made with actual malice, meaning that I either
knew the statements were false when I made them or at least acted with reckless disregard
for the truth. Cottrell v. Nat’l Coll. Athletic Ass’n, 975 So. 2d 306, 333 (Ala. 2007) (citing New
York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)).

Under this standard, there are at least four reasons why your defamation claim is doomed to
failure in the unlikely event that you sue. Let’s discuss each reason in turn and why your client
will have to pay my attorney fees if you actually try this.

1. Publication

In Alabama, an intraorganizational communication from the declarant to managerial

personnel is by definition not publication, i.e. not a statement to a third party. This doctrine
is known as the McDaniel/Burney Rule. See, e.g., Walton v. Bromberg & Co., 514 So. 2d
1010, 1011-12 (Ala. 1987) (discussing the development of this doctrine in Alabama and
restating the McDaniel/Burney test). Consequently, if I did not send the communications in
question to anyone other than the board and Mr. Foster, then there is by definition no
publication under Alabama law.
 In this case, Statements 2, 3, and 4, supra, were made in confidence to the library
board and to Mr. Foster, but to no one else. All of the board members have the responsibility
to oversee the library, and Mr. Foster was the library’s director. Because all of these
communications took place among those responsible for managing the library and were not
shared with anyone else, they are covered by the McDaniel/Burney Rule, and therefore no
publication took place. In fact, none of these communications became public until
someone – presumably Mr. Foster – leaked them the to the press. 1

That leaves only Statement 1, in which Mr. Holmes attempted to get me to share
details about Mr. Foster’s actions that would further inform the public about his
malfeasance. I replied, “I could, but I’m not going to.” I’m confused: You sent your letter
because you were mad that I allegedly talked to the press, but now you’re mad because I
didn’t talk to the press? Weird. 2 Of course, you intentionally phrased it to create the illusion
that I said this to Mr. Foster directly and refused to give him the legal basis for my advice to
the board. This is absolutely false. This statement was said directly to Jacob Holmes after
the meeting had concluded when he asked me what statute I was relying on. Given the fact
the chairman announced the board would not be answering questions after the meeting, I
was not about to answer the question of a reporter of a publication that has been
intentionally spinning the story to meet his narrative.

2. Absolute and Qualified Privilege

In addition to your inability to plead the element of publication, you also cannot plead
that Statements 2, 3, and 4 were not privileged. See McCaig, 544 So. 2d at 877 (requiring the
plaintiff to prove this element to state a claim for defamation). Let’s talk for a minute about
absolute privilege. “A party to a private litigation … is absolutely privileged to publish
defamatory matter concerning another in communications preliminary to a proposed
judicial proceeding … if the matter has some relation to the proceeding.” Walker v. Majors,
496 So. 2d 726, 729 (Ala. 1986) (adopting the standard set forth in Restatement (2d) of Torts
§ 587). The court emphasized that this applies before litigation has commenced as long as
the communication has “some relation to a proceeding that is contemplated in good faith
and under serious consideration.” Id. (quoting § 587 cmt. (e)). In this case, Mr. Foster said

1
In the highly unlikely event that you sue and that your case is not dismissed, I fully intend to explore this issue
in discovery.
2
Technically, this issue has to do with whether a false and defamatory statement was made, not whether
publication took place. I mention it here only to point out your position’s “delicious irony,” as you called it in
your letter.
repeatedly before his termination that he was consulting with counsel as these events
shaped up. In fact, prior to the special meeting held to discuss his actions, Foster told the
staff he would likely be the subject of this meeting but that he would only get a slap on the
wrist because he had consulted with a judge and was told what he did was not criminal. I
have a witness to this fact. He therefore placed us on notice that he was contemplating
suing, and my statements to my clients in light of his threat were absolutely privileged.
Further, under Section 36-35A-8, “In addition to any existing applicable immunity,
members of a governmental body and any of its employees participating in a meeting
conducted in conformance with this chapter shall have an absolute privilege and immunity
from suit for any statement made during the meeting which relates to an action pending
before the governmental body.” Statements 2 and 3 were made during a meeting in
compliance with the Open Meetings Act. Thus, I have absolutely immunity for those
statements.

Even if absolute privilege did not apply – perhaps because a demand letter had not
yet been sent (though I do not think that is necessary under Walker) – then qualified privilege
would certainly apply. An allegedly defamatory statement is protected by qualified privilege
if “they were spoken or published in the discharge of some legal or moral duty to society, or
even in the fair and honest prosecution of the rights of the party himself, or the protection of
his interests.” Ex parte Blue Cross & Blue Shield of Ala., 773 So. 2d 475, 478 (Ala. 2000)
(cleaned up). “Where a party makes a communication, and such communication is
prompted by duty owed either to the public or a third party … the communication is
privileged.” Id. at 479. In this case, there is no dispute that I made Statements 2, 3, and 4 in
my capacity as a lawyer as part of the legal duty I owed to the Board as its lawyer. Moreover,
even if you pursue the weak claim that Statement 1’s prefatory clause, “I could,” constituted
some kind of defamatory statement, you would have to prove that it had no relationship to
my duties to the Board or even my personal interests as we came under heavy media fire.
Good luck with that.

Let’s also not forget about attorney-client privilege. Statements 2, 3, and 4 were made
to my client in my capacity as an attorney and were therefore protected by the attorney-client
privilege. See Rule 502, Ala. R. Evid. The presence of Mr. Foster in these communications did
not waive the privilege because it was a matter of common interest. See Rule 502(d)(5), Ala.
R. Evid. This rule does not require me to label my communications to be labeled as
confidential for them to be confidential. There is not a rule you cite to say this is so. You may
be pointing out that this would excuse your client from not knowing it was confidential and
thus his blunder was not intentional. But ignorance of the law is no excuse. Your client’s
excitement to “expose the board” is no excuse for him to make a stupid mistake. You will
have to prove that these communications enjoyed neither absolute nor qualified privilege
nor attorney-client privilege. That is a high hill to climb.

3. Actual Malice

I haven’t even gotten to the part yet that everyone probably thought of in the first
place: The First Amendment. If somehow lightning strikes twice in the same place and you’re
able to get past the first two problems, there is no way you will be able to satisfy the actual-
malice standard. On average, in the United States, only 3 cases per year ever make it to a jury
when the actual malice standard governs, and 1 of every 3 jury verdicts in favor of the
plaintiffs is reversed on appeal. Berisha v. Lawson, 141 S. Ct. 2424, 2428 (2021) (Gorsuch, J.,
dissenting).

The threshold inquiry here is whether Mr. Foster is at least a limited-purpose public
figure, if not a full public figure. Cottrell, 975 So. 2d at 333. Under the Alabama Supreme
Court’s three-pronged test, this requires (1) isolating the controversy, (2) examining Mr.
Foster’s involvement, and (3) determining whether the alleged defamation was germane to
his participation in the controversy. Id. In this case, Read Freely and the Alabama Political
Reporter had been creating controversy surrounding the Board’s transparency long before
Mr. Holmes submitted the open-records request in question to Mr. Foster (and before Mr.
Foster asked for Mr. Odom’s legal advice and then ignored it). He was also had the power to
respond and decided to exercise it against the advice of counsel. Moreover, I strongly believe
that Mr. Foster himself tipped off Mr. Holmes to submit the open-records request, and I fully
intend to explore that issue in discovery if this case actually proceeds. My statements in
question were very germane to how he responded to the controversy in issue. Thus, he is, at
least, a limited-purpose public figure. 3

Consequently, you will have to prove by clear and convincing evidence that I made
the statements in question either (1) knowing they were false or (2) with a reckless disregard
for the truth. Cottrell, 975 So. 2d at 344. For the reasons explained in the next section, my

3
He may even be a full public figure since he came to this job knowing that this library had statewide attention
over the book controversy and repeatedly spoke to the press and Legislature about it. See, e.g., Jacob Holmes,
New Director Steps in as Prattville Library Debate Continues, Alabama Political Reporter (July 17, 2023),
https://www.alreporter.com/2023/07/17/new-director-steps-in-as-prattville-library-debate-continues (“It’s
not necessarily an ideal start to the position of stepping into this kind of thing for a lot of people …. From my
own perspective, I’m against the censorship,” Foster said. “It really is a very steep slope that we’re kind of
standing at the edge of that. you know, if we start censoring these materials.”).
statements were true and therefore not even close to actual malice. But even if there was
some error in my statements – and I maintain that there was not – there is no way under the
circumstances of this case that you can meet the standard of proof. Three cases involving
actual malice might get to a jury this year, but this won’t be one of them.

4. Truth

Finally, even if you can clear the three hurdles discussed above, your suit will fail for
one reason: I told the truth. I mention this last only because, as you know, you have to clear
the procedural hurdles before getting to the merits. Even if you somehow miraculously get
there, you will ultimately fail because I said nothing wrong.

Your defamation claim rests on the premises that (1) Mr. Foster did not share
confidential information, and (2) he did not engage in criminal eavesdropping. Both of these
propositions of law are incorrect. Let’s address each in turn.

First, you claim that he did not reveal confidential information in response to Jacob
Holmes’s Open Records request. But even in the email from Mr. Odom to Mr. Foster—which
you selectively quoted—Mr. Foster was informed that “Internal communications, such as
texts, emails, etc., and phone records are not typically disclosable public records,” and
“internal and external correspondence, such as emails … are not subject to disclosure.” Your
letter, Ex. 7 (emphasis in original) (quoting Ala. Att’y Gen. Op. 2017-036).4 Thus, not only did
Mr. Foster fail to consult the most natural lawyer to ask in the situation, but he also rejected
the advice of the City Attorney and the Alabama Attorney General. He had plenty of notice
that this information was confidential, but he ignored it and handed it over anyway – most
likely because the advice he received did not get him to the political result he wanted.

Second, your claim that he did not violate the criminal eavesdropping statute suffers
from two defects: you fail to consider the in pari materia canon of statutory construction. In
Alabama, “statutes dealing with the same subject are in pari materia and should be
construed together[.]” Craft v. McCoy, 312 So. 3d 32, 37 (Ala. 2020). This canon “does not
require that the statutes being analyzed share an identical subject matter” but only that they
be “related, similar, or the same generally.” Ex parte Terex USA, LLC, 260 So. 3d 813, 821 (Ala.

4
Your claim that this Attorney General Opinion was limited to potential agency matters for the Department of
Revenue is incorrect. Beginning with the text of the Open Records Act itself, Attorney General Marshall then
said, “"This Office, however, has consistently stated that only completed records in final form are subject to
disclosure....” He then provided five different examples to support his thesis, none of which were limited to
potential actions by the Department of Revenue. Therefore, Mr. Odom was right to advise Mr. Foster that
emails are generally not subject to disclosure.
2018) (cleaned up); see also Antonin Scalia & Bryan A. Garner, Reading Law 253 (2012)
(arguing that this principle rightly provides “a good deal of leeway” in determining how
related statutes must be).

In this case, “eavesdrop” is to “record … any part of the private communication of

others without the consent of at least one of the persons engaged in the communication,
except as otherwise provided by law.” Ala. Code § 13A-11-30(1) (emphasis added). If it
weren’t for the italicized phrase, you would be correct, but you apparently stopped reading
at the preceding phrase. One party consent is enough unless the law provides otherwise. In
this case, the Open Meetings Act provides that government meetings may openly be
recorded “except while in executive session.” Ala. Code § 36-25A-6. Thus, this provision
provides an exception to the general rule that recording is allowed if one party consents. See
also, Ages Group, L.P. v. Raytheon Aircraft C., Inc., 22 F. Supp 2d 1310 (M.D. Ala. 1998) for a
full discussion on how the expectation of privacy attaches where a citizen is given a duty not
to record and how that interacts with criminal eavesdropping. Since the whole point of an
executive session is to have private communications, see § 36-25A-7, and since recording in
an executive session is not allowed by law, Mr. Foster “record[ed]… the private
communication of others without consent,” and is therefore guilty of eavesdropping under
§§ 13A-11-30 and -31. 5

Even if there is some error in the analysis above, and even if the actual-malice
standard somehow doesn’t apply, you won’t even be able to prove the basic scienter
element of a defamation claim. Alabama has long required a plaintiff in a defamation suit to
prove at least negligence. See McCaig, 544 So. 2d at 877 (citing Restatement (2d) of Torts §
558). In this case, your failure to understand the open records law and the portions of the
open-meetings act relating to executive sessions are not my fault – the text is plainly in my
favor. As to criminal-eavesdropping, unless you can definitely show that “except as
otherwise provided by law” means something other than “except as otherwise provided by
law,” you will not be able to demonstrate that I was negligent in my interpretation of the law.
I have also checked with other attorneys, who have confirmed that I have read the statutes
correctly.

55
Also, your claim that § 36-25A-6 is ineffective without the governmental body developing rules is patently
false. The sentence in question says, in full, “The governmental body may adopt reasonable rules for the
implementation of this section.” § 36-25A-6 (emphasis added). “Ordinarily, the use of the word ‘may’ indicates
a discretionary or permissive act, rather than a mandatory act.” Ex parte Mobile Cnty. Bd. of Sch. Comm’rs, 61
So. 3d 292, 294 (Ala. Civ. App. 2010).
 I’m not even going to get to address the element of damages. I’ve shown that you’re
going to lose four different ways. If I haven’t persuaded you by now to drop this case, I doubt
that adding a fifth reason on the merits will do. So let’s talk about one other issue that your
client should really consider if he decides to sue.

5. Attorney Fees

In your letter, you concluded with what appears to be a boilerplate threat to seek
attorney fees. The problem is that, in Alabama, the winner of a lawsuit is not entitled to
attorney fees unless authorized by contract, special equity, or statute. Mitchell v. Huntsville
Hosp., 598 So. 2d 1358, 1360 (Ala. 1992). None of those are applicable here.

On the other hand, since you are now aware of how baseless your claims are, your
client may be liable to me under the Alabama Litigation Accountability Act, Ala. Code § 12-
19-270 et seq. I have no desire to see Mr. Foster go through any more financial hardship than
the loss of his job has already caused. But if you think that I will tolerate being put through a
lawsuit that is groundless in law or fact, then think again.

NOTICE OF COUNTERCLAIM AND DEMAND FOR RETRACTION

Finally, since you opened the door to allegations of defamation, you have left me no
choice but to warn you of the counterclaim I have against Mr. Foster. Immediately upon his
termination, Mr. Foster went out and claimed that I told him he broke “federal law,” although
I would never tell him specifically which law he broke. 6 None of that is true. Because of the
false and defamatory statements he has been spreading about me, of which the Alabama
Political Reporter and AL.com have savored every morsel, I have been subject to constant
attacks on my competence as an attorney.7 Alabama law tends to place a special emphasis
on protecting people’s reputations as it pertains to their professions. See, e.g., Kelley v.
Arrington, 624 So. 2d 546, 549 (Ala. 1993) ("Words are defamatory per se if they directly tend
to prejudice anyone in his office, profession, trade, or business, or in any lawful employment
by which he may gain his livelihood."). I haven’t even gotten to the multiple death threats I
have received since Mr. Foster’s termination.

6
See, e.g., Howard Koplowitz, Autauga-Prattville Library Board fires library director, staff who locked facility in
protest, AL.com (Mar. 14, 2024), https://www.al.com/educationlab/2024/03/autauga-prattville-library-board-
fires-library-director-staff-who-locked-facility-in-protest.html.
7
I would not be surprised if the same is true with Mr. Foster’s CNN interview. I have not watched it yet because,
like my friend Ray Boles, I typically don’t waste my time with “fake news.”
 Even if I also were classified as a limited-purpose public figure, I have a much higher
chance of proving actual malice than Mr. Foster does. I never claimed that he broke federal
law; I told him which laws he broke; and I have a room full of witnesses who will testify to my
version of the facts. Under those facts, I feel good about my chances of proving actual
malice. Thus, my chances of prevailing if I counterclaimed are higher than Mr. Foster’s.

In spite of this, I have no desire to sue Mr. Foster. I am annoyed by the lies he has
spread about me. But when I remember who is mad at me – the slim minority of Alabamians
who want kids to get exposed to porn and make the taxpayers fund it – it’s easier just to laugh
it off and move on. But if you bring a defamation claim against me, then I must bring a
counterclaim if it arises out of the same transaction or occurrence, or else I waive it. See
Rule 13(a), Ala. R. Civ. P. Thus, if you sue, you will leave me no choice but to sue back, thus
creating further jeopardy for Mr. Foster.

I will note that Mr. Foster and I are both members of the Churches of Christ. If I felt
that I had to do something to Mr. Foster to restore my good name, I would seek to have the
elders of our churches sit down together and try to work it out between us before I would
consider suing him. See I Corinthians 6:1-8. So if I have to counterclaim in a lawsuit, it would
only be because you forced it. Don’t make me do that. He has equal permission from me to
hold such a meeting to settle any issues he has with me.

To preserve my rights in case you force my hand, your client is hereby notified that he
has issued false and defamatory statements against me. He has 5 days to retract his
statements by issuing an apology and setting the record straight with the Alabama Political
Reporter. He is also notified to preserve the exact same kind of evidence in his possession
that you adjured me to preserve in your letter.

CONCLUSION

You cannot prove publication, lack of privilege, or the presence of actual malice. Most
importantly, what I said was true. In the unlikely event that you actually sue, Mr. Foster will
face a counterclaim and a strong possibility of paying my attorney fees. I have no desire to
do either, so whether he will face an embarrassing loss and a hefty attorney-fee bill depends
completely on you. I decline to apologize.

Sincerely,

Laura Clark, Esq.