Arizona high court dismisses defamation suit vs. talk radio host

PHOENIX — The Arizona Supreme Court has stopped a court battle between two conservative Republicans whose public spat led one to sue the other for slander.

The ruling from the state’s high court found that comments made by conservative talk radio host James T. Harris during segments of his “The Conservative Circus’’ show were political commentary protected by the First Amendment.

In a decision written by Justice William Montgomery and joined by the six other justices, the court ordered a defamation lawsuit filed by failed Republican U.S. Senate candidate Daniel McCarthy dismissed in full.

Harris had gone after McCarthy on his show following events at a state Capitol rally after the November 2020 election.

Supporters of McCarthy, known as “Demand Daniel’’ in his upstart Republican primary race against then-Sen. Martha McSally in the summer of 2020, had chanted for McCarthy to speak during a speech by Harris at the “Stop the Steal’’ rally organized by backers of former President Donald Trump. The microphone was then passed from Harris to McCarthy.

In the coming days, Harris lit into McCarthy during two segments of his radio broadcasts.

He accused McCarthy variously of having no control of his emotions or those of his supporters, calling the supporters “downright frightening because they were unhinged’’ and acting like “ANTIFA.’’ According to court records, Harris also said McCarthy had created a new political party and had “attacked’’ Harris at the rally.

McCarthy sued Harris, and a trial court judge in Phoenix allowed the case to proceed to allow him to try to prove that nine of the statements were slanderous.

‘Rhetorical political invective’

Harris and iHeart Media, the owners of KFYI, which broadcasts his show, appealed the ruling, arguing the whole case should be dismissed. They argued the statements “were rhetorical hyperbole incapable of being proved false and protected by the First Amendment, and were therefore not actionable.’’

Montgomery agreed and dismissed seven of the statements as clearly either not factual statements, probable as false, or both.

Instead, “given the overtly political context, tone, and general purpose of The Conservative Circus,’’ they “are all readily recognized as rhetorical political invective or … mere hyperbole and not statements or implications of objective fact,” the justice wrote.

He said the two others, in context, were also political when taken in context.

“Under the First Amendment, apparently factual statements must be considered in light of the nature in which the speaker uttered them and the relationship of the statements to the overall context,’’ the ruling says. “Here, the nature of the words is colored by the context of an overtly political talk show.’’

Montgomery noted that Harris bills himself as the ringmaster of “The Conservative Circus’’ and describes the show as a mix of political commentary and opinion presented in an entertaining fashion from one side of the political spectrum.

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“Such is the essence of radio talk shows today,’’ Montgomery said.

‘Political opinions are fully protected’

Matthew Kelley, an attorney with Ballard Spahr who helped file a friend of the court brief for various news organizations not named in the case, said the high court ruling reaffirmed important First Amendment protections for political commentary.

He said the case raised issues often contested in defamation cases — whether statements are factual or opinion.

“Sometimes, a statement that might sound factual actually is an opinion or hyperbole or some other kind of statement that cannot be proven true or false,’’ Kelley said.

“This case has several examples of those kinds of statements,” he said. “And it’s important that the Arizona Supreme Court recognized and reaffirmed that political opinions are fully protected by the First Amendment.’’

That context is what Montgomery noted in ordering the case dismissed.

“In context, this is a political commentator who is expressing his opinions,’’ Kelley said. “It’s clearly a situation where he’s not reporting facts. He is expressing opinions, and opinions are not the stuff of defamation lawsuits.’’

That’s important for other cases involving political commentary, whether by a newspaper columnist or a talk radio host, Kelley said.

“It doesn’t matter where you are on the political spectrum; your opinions are protected by the First Amendment,’’ he said.

Neither McCarthy nor Harris immediately responded to messages seeking comment Friday afternoon.

While Montgomery threw out the case, he warned that not all commentary will be afforded similar protections from slander lawsuits.

“We do not suggest that the First Amendment provides categorical protection to anything that may be said on a political talk show,’’ he wrote.

He then quoted a ruling in another case that said, “Candidates cannot make defamatory assertions they hope voters will believe, then, when sued for defamation, seek refuge in the defense that no one believes what politicians say.’’