PHOENIX — Citing First Amendment concerns over free speech, 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 new precedents, the majority acknowledged current state Sen. Wendy Rogers made statements during her 2018 congressional campaign about Steve Smith, her foe, that also implicated the Young Agency for whom he worked. And the justices acknowledged neither the agency nor owner Pamela Young played a role in the campaign.
But Justice Clint Bolick, writing for the majority, pointed out Young was not named in the radio commercial that called Smith “a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.”
More to the point, he said politicians have wider latitude than individuals about what they can say without committing slander or libel. And that, Bolick said, leaves Young without a legal remedy.
“None of this is meant to disparage Young’s grievance,” he 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, who since her 2020 election to the state Senate has been at the forefront of efforts to overturn the results of the presidential race, impose new restrictions on voting, promote unrestricted possession of firearms, fought vaccine mandates and proposed the use of Bitcoin as an official state currency.
But 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,” she wrote, saying the question of whether what Rogers said harmed Young should have been decided by a jury. And Timmer sniffed at the majority’s argument that the decision protects free speech rights.
“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,” she said.
Timmer also said the majority got it wrong in saying the fact that the commercial did not cite Young by name protects Rogers from suit.
“Some listeners could understand the contested statement as meaning Young Agency was complicit in sex trafficking girls, indisputably a defamatory communication,” she wrote. And if the point of the commercial was to attack Smith, Timmer said, what was the point of mentioning the agency?
“The only way the contested statement paints Smith as ‘slimy’ is if the listener understands it as meaning Young Agency, his employer, is complicit in sex trafficking girls,” she said.
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 still lost the general election.
Following the election, Young sued, charging defamation and false light invasion of privacy, arguing the commercial implied Young was complicit in sex trafficking of children.
A trial judge rejected a bid by Rogers to dismiss the case but the Court of Appeals sided with her. That led to Tuesday’s ruling.
Bolick acknowledged 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 heard or read reasonably understand the plaintiff to be the person intended,” he wrote. And Bolick said a statement can lead to litigation “if it implies as clearly defamatory meaning.”
He also said 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 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.
And then there’s the fact the commercial was an attack ad aimed at Smith.
“The advertisement 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 that, Bolick said, compels a 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 candidates, 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.
Nor was Bolick swayed by Timmer’s argument that the majority ruling is unfair and would harm those who are not politicians but are defamed in the course of political campaigns. Instead, he said he sees it from the perspective of what would happen if the Supreme Court would allow Young to pursue her claim.
“Any third party who might indirectly be identified in a passing reference in a political advertisement (a business’s patrons or an official inner circle, for instance), would have a cause of action if a possibly damaging implication could be inferred from an otherwise factually accurate statement, even if the overall advertisement (as here) was clearly aimed at a political opponent,” Bolick said.
He acknowledged 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.
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