The privilege applies when the news account is substantially accurate and a fair abridgement of the events. Wiggins v. Mallard , 905 So. 2d 776, 783-84 (Ala. 2004) (citing Wilson , 482 So. 2d at 1211-12 ). Plaintiffs do no dispute that the article covers an official investigation.

Ex parte Blue Cross & Blue Shield of Ala., 773 So.2d 475, 478-79 (Ala. 2000) (quoting Berry v. City of New York Ins. Co., 210 Ala. 369, 371, 98 So. 290 (1923)). After the defendant establishes that she made the statement pursuant to a “legal” or “moral” duty owed to the public, the plaintiff can escape the qualified privilege defense by showing that the defendant made the statement with common-law actual malice (as opposed to actual malice for the purposes of the First Amendment to the United States Constitution). Wiggins v. Mallard, 905 So.2d 776, 784 (Ala. 2004). The determination of whether the defendant made the statement with common-law actual malice falls to the jury.

In addition, Alabama law provides that “[t]he publication of a fair and impartial report of . . . the issuance of any warrant . . . shall be privileged, unless it be proved that the same was published with actual malice[.]” Ala. Code § 13-A-11-161; see Wiggins v. Mallard, 905 So.2d 776, 782 (Ala. 2004) (“§ 13A-11-161 is an ‘explicit statutory privilege protecting fair and accurate reports of criminal charges and official investigations'”) (citing Wilson v. Birmingham Post Co., 482 So.2d 1209, 1211 (Ala. 1986)). “[T]he application of the privilege turns on whether the alleged defamatory statement was an accurate, or ‘substantially accurate,' publication of the [warrant].” Wiggins, 905 So.2d at 783 (internal citations omitted) (emphasis in original)

Actual malice "may be shown, not only by 'evidence of hostility, rivalry, the violence of the language, the mode and extent of publication,' but, also, by proof of 'the recklessness of the publication and prior information regarding its falsity.'" Wiggins v. Mallard, 905 So. 2d 776, 788 (Ala. 2004) (quoting Johnson Publ'g Co. v. Davis, 124 So. 2d 441, 450 (Ala. 1960)) (emphasis omitted). The Bank is correct in asserting that the information it provided to the IRS and ADR was provided under a qualified privilege.

Commonlaw actual malice indicates a specific intent to injure. Wiggins v. Mallard, 905 So. 2d 776, 784 (Ala. 2004). It is established by " ‘evidence of "previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like … or … violence of the defendant’s language, [and] the mode and extent of publication, and the like."

Common-law actual malice indicates a specific intent to injure. Wiggins v. Mallard, 905 So.2d 776, 784 (Ala. 2004). It is established by "'evidence of "previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like ... or ... violence of the defendant's language, [and] the mode and extent of publication, and the like."

When a plaintiff in a libel action is a public official and the alleged defamatory statement relates to his conduct as a public official, the plaintiff must establish "constitutional malice" by clear and convincing evidence. Gary v. Crouch, 923 So.2d 1130, 1138 (Ala.Civ.App.2005) (citing Wiggins v. Mallard, 905 So.2d 776 (Ala.2004) ; and Smith v. Huntsville Times Co., 888 So.2d 492 (Ala.2004) ). "Constitutional malice" refers to the standard set forth in New York Times Co. v. Sullivan, supra. "This standard is satisfied by proof that a false statement was made ‘ "with knowledge that it was false or with reckless disregard of whether it was false or not." ’ " Smith, 888 So.2d at 499 (quoting Harte–Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 659, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989), quoting in turn New York Times v. Sullivan, 376 U.S. at 279–80).

In prosecuting her defamation action, Lt. Gary, because she is deemed for the purposes of this opinion to be a public official, must show that Chief Crouch's actions or statements rose to the level of constitutional malice as described in New York Times Co. v. Sullivan, supra. See Smith v. Huntsville Times Co., supra; Wiggins v. Mallard, 905 So.2d 776 (Ala. 2004); and Barnett v. Mobile County Pers. Bd., 536 So.2d at 54. In addressing the issues raised in Lt. Gary's current appeal, this court must examine our supreme court's discussion of the element of malice contained in its opinion in Gary I, supra. As discussed below, because the requirements for the two forms of malice — common-law malice and constitutional malice — are different, the doctrine of the law of the case does not apply to prevent the trial court or this court from considering the issue whether Chief Crouch was entitled to a summary judgment on the authority of Smith v. Huntsville Times Co., supra, on Lt. Gary's defamation claim.

For these reasons, the two definitions have 'caused a considerable amount of confusion and ambiguity in interpretation and application of the two different standards of malice.'Wiggins v. Mallard, 905 So. 2d 776, 786 (Ala. 2004) (citations omitted). Moore seizes on this "confusion and ambiguity" to argue that public figures can avoid the New York Times actual malice standard.

It may also be shown by "the recklessness of the publication and prior information regarding its falsity." Wiggins v. Mallard, 905 So. 2d 776, 788 (Ala. 2004) (internal quotes omitted). The defendants do not deny that calling someone a rapist and a pillager (as the complaint alleges) is sufficiently violent language from which to infer actual malice; instead, they state only that this is MCSO's language, not theirs.