PHOENIX — The Arizona Supreme Court has restricted the right of private individuals dragged into, and defamed, in political disputes to sue.
In a 4-3 ruling Tuesday that sets precedents, the majority of justices cited First Amendment concerns about free speech.
The ruling acknowledged that current state Sen. Wendy Rogers made statements during her 2018 congressional campaign about Steve Smith, her Republican primary foe, that also implicated the modeling firm for which he worked, the Young Agency. Neither the agency nor its owner Pamela Young played a role in the campaign, the majority acknowledged.
But Justice Clint Bolick, writing for the majority, pointed out that Young was not named in the radio commercial at issue, which called Smith “a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.’’
He said politicians have wider latitude than individuals about what they can say without committing slander or libel. That leaves Young without a legal remedy, Bolick said.
“None of this is meant to disparage Young’s grievance,’’ the justice wrote, noting she asked to stay out of the political fray.
“It is not uncommon for friends, family, supporters and professional associates of candidates and public figures to be swept involuntarily into the political maelstrom, and it is essential for defamation remedies to be available in meritorious cases,’’ Bolick continued. “But in public debate, we must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space for the freedoms protected by the First Amendment.’’
Tuesday’s ruling most immediately is a victory for Rogers. Since her 2020 election to the state Senate, the Flagstaff Republican has been at the forefront of efforts to overturn results of the presidential race, impose new restrictions on voting, and promote unrestricted possession of firearms. She has also fought vaccine mandates and proposed the use of Bitcoin as an official state currency.
Justice Ann Scott Timmer, in writing the dissent for the minority, said there are larger implications from the precedent being set.
“In its zeal to shelter political mudslinging under First Amendment freedoms, the majority abandons private individuals caught in the crossfire and effectively displaces the jury in cases involving implied defamation against unnamed, yet readily identifiable, people,’’ Timmer wrote. She said the question of whether Rogers’ speech harmed Young should have been decided by a jury.
As to the majority’s argument that the decision protects free speech rights, Timmer wrote, “This view effectively weaponizes the First Amendment against innocent bystanders ensnared by often-vitriolic political campaigns, disregards well-established precedent, and is unnecessary for protecting political speech.’’
Timmer also said the majority got it wrong in saying the fact that the commercial did not cite Young by name protects Rogers from being sued.
“Some listeners could understand the contested statement as meaning Young Agency was complicit in sex trafficking girls, indisputably a defamatory communication,’’ she wrote. Timmer also asked what the point was of mentioning the agency in the commercial, if the point was to attack Smith.
The radio ad aired by Rogers came as she sought to be the 2018 GOP nominee for Congress, saying only she — and not Smith — could defeat incumbent, Democrat Tom O’Halleran. Rogers won the primary but lost the general election.
Following the election, Young sued, charging defamation and false light invasion of privacy because of the commercial.
A trial judge rejected Rogers’ bid to dismiss the case but the Court of Appeals sided with her. That led to Tuesday’s ruling.
Bolick acknowledged that someone claiming defamation need not actually be identified by name.
“It is enough that there is such a description of or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended,’’ he wrote. A statement can lead to litigation “if it implies a clearly defamatory meaning,’’ Bolick said.
He also said that Young, as a private figure, does not need to prove a statement was made with “actual malice.’’ That’s the standard set for defamation lawsuits by public figures.
But he also noted that Young does not dispute the factual nature of the claim: that Smith works at a modeling agency that specializes in underage girls, and that the agency advertises on websites that had been linked to sex trafficking. Instead, Bolick said, her case is built on Rogers’ implication that Young is complicit in sex trafficking of children.
The campaign commercial “is more reasonably understood to imply that Smith is ‘slimy’ because he makes a living off exploiting children as models and goes so far as to advertise his sketchy business on questionable websites,’’ Bolick said, calling that a “far cry’’ from any reasonably understood inference the agency itself is engaged in sex trafficking of girls.
“Sex trafficking girls makes one a criminal,’’ the justice said. “Making a living in a seedy business makes one ‘slimy,’ which is exactly what the advertisement alleges that Smith does.’’
All of that, Bolick said, compelled the ruling that Young has no legal remedy in Arizona courts.
“To allow a defamation action to proceed where the publication is a political advertisement directed at an opposing candidate, where the plaintiff is unnamed in the publication, where the challenged statement is conceded to be true, and where the alleged offending implication is not obvious, would not only chill free speech in this case but also open the floodgates to litigants who are aggrieved by perceived indignities visited upon them by politicians,’’ he wrote.
He acknowledged that in such lawsuits the question of whether someone has been defamed is generally left to a jury. But Bolick said jurors — unlike judges — do not have an obligation to protect free speech.
“Moreover, allowing the claim to proceed, even if it ends in a verdict for the defendant, exposes the candidate to costly litigation and potentially embarrassing discovery,’’ he said.
