Wendy Rogers v. Hon. mroz/pamela Young ( 2022 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
WENDY ROGERS AND HAL KUNNEN, HUSBAND AND WIFE, AND
WENDYROGERS.ORG, A PRINCIPAL CAMPAIGN COMMITTEE,
Petitioners,
v.
THE HONORABLE ROSA MROZ, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
PAMELA YOUNG, AN INDIVIDUAL; MODELS PLUS INTERNATIONAL, L.L.C.
D/B/A THE YOUNG AGENCY, AN ARIZONA LIMITED LIABILITY COMPANY,
Real Parties in Interest.
No. CV-21-0001-PR
Filed February 1, 2022
Special Action from the Superior Court in Maricopa County
The Honorable Rosa Mroz, Judge
No. CV2018-013114
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
250 Ariz. 319 (App. 2020)
VACATED
COUNSEL:
E. Jeffrey Walsh, Dominic E. Draye (argued), Greenberg Traurig, LLP,
Phoenix, Attorneys for Wendy Rogers, Hal Kunnen, and WendyRogers.org
William M. Fischbach, Amy D. Sells (argued), Ryan P. Hogan, Tiffany &
Bosco, P.A., Phoenix, Attorneys for Pamela Young and Models Plus
International, L.L.C. d/b/a The Young Agency
ROGERS, ET AL. v. HON. MROZ, ET AL.
Opinion of the Court
Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief
Deputy and Chief of Staff, Brunn (Beau) W. Roysden III, Solicitor General,
Michael S. Catlett, Deputy Solicitor General, Phoenix, Attorneys for Amicus
Curiae Arizona Attorney General’s Office
_______________
JUSTICE BOLICK authored the opinion of the Court, in which JUSTICES
LOPEZ, BEENE, and KING joined. VICE CHIEF JUSTICE TIMMER, joined
by CHIEF JUSTICE BRUTINEL, and JUDGE ESPINOSA, authored a
dissenting opinion. *
_______________
JUSTICE BOLICK, opinion of the Court:
¶1 We decide today that the First Amendment precludes a
defamation action based on a political advertisement directed at an
opposing candidate, in which the third-party plaintiff is unnamed, the
alleged defamation is not expressed but only implied, and the asserted
implication is not one that would likely be drawn by a reasonable listener.
A.
¶2 This case resides at the intersection of state tort law and the
First Amendment. To establish defamation under Arizona common law, “a
publication must be false and must bring the defamed person into
disrepute, contempt, or ridicule, or must impeach plaintiff’s honesty,
integrity, virtue, or reputation.” Godbehere v. Phx. Newspapers, Inc., 162 Ariz.
335, 341 (1989). But the First Amendment, made applicable to the states
through the Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 666
(1925), limits the scope of state defamation law when applied to public
figures and matters of public concern. See, e.g., Dombey v. Phx. Newspapers,
Inc., 150 Ariz. 476, 481 (1986) (noting that “when a plaintiff is a private
figure and the speech is of private concern, the states are free to retain
* Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
Philip G. Espinosa, Judge of the Arizona Court of Appeals, Division Two,
was designated to sit in this matter.
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common law principles,” but discussion about government officials and
controversial issues “is at the very core of ‘public concern’ and is protected
by the first amendment”). To this end, the First Amendment necessarily
protects both the profound and the profane, not only conscientious
candidates and civil discourse but unscrupulous politicians and negative
campaigns as well.
¶3 Politicians are not immune from liability for defamatory
statements that rain shrapnel upon innocent third parties in the heat of
political battle. 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. See, e.g., US Dominion,
Inc. v. Powell, No. 1:21-CV-00040, 2021 WL 3550974, at *10–12 (D.D.C. Aug.
11, 2021).
¶4 But courts must ensure that only truly meritorious
defamation lawsuits are allowed to proceed, lest exposure to monetary
liability chill the exercise of political debate that is the foundation of our
constitutional republic. “Because the threat or actual imposition of
pecuniary liability for alleged defamation may impair the unfettered
exercise of these First Amendment freedoms, the Constitution imposes
stringent limitations upon the permissible scope of such liability.” Greenbelt
Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 12 (1970).
¶5 Defendant Wendy Rogers ran for the U.S. House of
Representatives in 2018. Her opponent in the Republican primary was
Steve Smith, a state legislator who also worked for plaintiff Young Agency,
a modeling, acting, and talent agency owned by plaintiff Pamela Young.
Roughly half the models Young Agency represents are minors.
¶6 Smith created a modeling agent profile on
ModelMayhem.com (“Model Mayhem”), an internet platform and
professional marketplace for the modeling industry. Smith’s profile
included Young Agency’s logo and described the agency as one of the
largest in the southwest. In the years leading up to the 2018 election, Model
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Mayhem received extensive negative national publicity based on
allegations that the website was linked to sex trafficking.
¶7 In her campaign, Rogers used Smith’s association with Model
Mayhem to support her campaign theme that Smith was not the family-
values candidate he purported to be. At issue in this appeal is a radio
advertisement Rogers aired against Smith:
Tom O’Halleran is a dangerous leftist and ally of Nancy Pelosi
and the open borders lobby, but he’ll win again if we run
Steve Smith for Congress. Smith is a slimy character whose
modeling agency specializes in underage girls and advertises
on websites linked to sex trafficking. Smith opposed Trump,
never endorsed Trump against Clinton and ridiculed our
much needed border wall.
Who’ll beat O’Halleran? Wendy Rogers. Wendy Rogers
strongly supports President Trump and the President’s
conservative agenda. Wendy Rogers is a decorated Air Force
pilot, small business owner, and major supporter of President
Trump’s border wall. Slimy Steve Smith can’t beat
O’Halleran and the anti-Trump left. Only Wendy Rogers will.
Wendy Rogers for Congress. Conservative, Republican,
standing with President Trump, standing with us. I’m
Wendy Rogers and I approve this message.
The advertisement did not identify either Young Agency or Model Mayhem
by name. Young Agency and Pamela Young (collectively “Young”) played
no role in the campaign, and after learning about the radio advertisement,
Young asked Smith to keep her out of it.
¶8 Rogers defeated Smith in the primary but lost in the general
election. Following the election, Young filed suit against Rogers for
defamation and false light invasion of privacy, alleging the advertisement
and a campaign blog (not at issue here) implied that Young was complicit
in sex trafficking children. Young sought discovery of Rogers’ financial
records relating to a claim for punitive damages. To avoid disclosing such
records, Rogers moved for summary judgment, asserting that the
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Opinion of the Court
advertisement at issue here and other challenged publications made
truthful claims about matters of public concern, that Young could not meet
the threshold for defamation by implication, and that Rogers did not make
the statements with actual malice. Young opposed summary judgment,
arguing that as she is not a public figure, no actual malice showing is
necessary and that Young was defamed by the false implication that Young
was complicit in sex trafficking. The superior court denied the summary
judgment motion in a brief order, stating that it agreed with Plaintiffs’
arguments.
¶9 The court of appeals granted special action review and
reversed the trial court in a 2–1 memorandum decision. As to the radio
advertisement, the court concluded that “[r]easonable listeners could not
confuse this unmistakable political flamethrower—deployed in the course
of a high-profile, mud-filled congressional election campaign—as a
statement of objective fact.” Rogers v. Mroz, 250 Ariz. 319, 332 ¶ 52 (App.
2020). Applying First Amendment standards, the court concluded that
Young failed to present sufficient evidence to go forward with a defamation
claim and that summary judgment for Rogers was warranted. Id. at 333–34
¶ 60.
¶10 The dissenting judge concluded the advertisement was
“capable of bearing a defamatory meaning,” and that “the jury, rather than
the court, [should be] the ultimate arbiter of ‘whether the defamatory
meaning of the statement was in fact conveyed.’” Id. at 336 ¶ 72 (Cattani,
J., dissenting) (quoting Yetman v. English, 168 Ariz. 71, 79 (1991)).
¶11 We granted review to decide the important question of
whether the First Amendment tolerates a defamation action under the facts
presented here. We have jurisdiction pursuant to article 6, section 5(3) of
the Arizona Constitution and Arizona Rule of Procedure for Special Actions
4(a). We review de novo whether summary judgment is appropriate.
Glazer v. State, 237 Ariz. 160, 167 ¶ 29 (2015).
B.
¶12 Arizona’s tort of defamation traces to the common law. In an
ordinary defamation action between private individuals, a speaker may be
liable for damages if a falsehood is published that injures the plaintiff’s
reputation. See, e.g., Godbehere, 162 Ariz. at 341. “Unless this is free from
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Opinion of the Court
reasonable doubt, it is for the jury to determine the meaning and
construction of the alleged defamatory language.” Restatement (Second) of
Torts § 563 cmt. e (Am. Law Inst. 1977).
¶13 The alleged defamation need not identify the defamed person
by name. Restatement § 564 cmt. b. Rather, “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,” which may be
supported by extrinsic facts. Id. We will call this third-party defamation.
¶14 Additionally, a statement is actionable if it implies a clearly
defamatory meaning. See Yetman, 168 Ariz. at 80. This is called defamation
by implication. This case involves both of these indirect types of
defamation: third-party defamation and defamation by implication.
¶15 But we do not examine the circumstances here solely through
the lens of state defamation law; we do so bearing in mind that such law is
constrained by First Amendment protections. The First Amendment left
undisturbed the common law of defamation and subsequent state
modifications so far as they govern actions between private figures on
matters of private concern. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323,
347 (1974). But as to public figures and matters of public concern, the First
Amendment marked a radical departure from common law. Under the
Crown, statements criticizing the monarch were actionable. See New York
Times Co. v. Sullivan, 376 U.S. 254, 274 (1964) (noting the framers of the First
Amendment believed the United States’ “form of government was
altogether different from the British form, under which the Crown was
sovereign and the people were subjects” (internal quotation marks
omitted)). Indeed, resentment over punishment for criticizing the
government was an animating impulse for the American Revolution. See
id.¶16 The framers of the Bill of Rights were determined to robustly
protect political speech. Id. That they did, making protection of speech
against government constraint foremost within our pantheon of
constitutional liberties. Id. Over the ensuing centuries, spirited political
campaigns filled with nasty invective and innuendo have, for better or
worse, characterized American politics, dating back at least to the bitter
presidential contests between John Adams and Thomas Jefferson.
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Commonwealth v. Lucas, 34 N.E.3d 1242, 1257 n.12 (Mass. 2015) (quoting Jed
Handelsman Shugerman, The Golden or Bronze Age of Judicial Selection?, 100
Iowa L. Rev. Bull. 69, 74 (2015)).
¶17 The U.S. Supreme Court applied the First Amendment to
limit the scope of state defamation liability in the context of public affairs in
New York Times. Under state tort law, certain damaging and inaccurate
statements made about a public official were deemed to establish
defamation. 376 U.S. at 267. But the Court held that to protect against
chilling criticism of public officials, the First Amendment also required a
showing that the statements were made with “actual malice.” Id. at 279–80.
¶18 Subsequent decisions have further defined the scope of
permissible defamation liability regarding public figures and matters of
public concern. In Greenbelt, a newspaper reported that at city council
meetings, members of the public referred to a local developer’s negotiating
position with the city over a controversial project as “blackmail.” 398 U.S.
at 7–8. The developer sued the newspaper for libel, asserting that the
statements implied he had committed the crime of blackmail. Id. at 8.
¶19 Though such a complaint might be actionable under state
defamation law, the Court in Greenbelt held the statements, considered in
their context, were insulated by the First Amendment as a matter of law.
Id. at 13. “Because the threat or actual imposition of pecuniary liability for
alleged defamation may impair . . . First Amendment freedoms,” the Court
stated that “the Constitution imposes stringent limitations upon the
permissible scope of such liability.” Id. at 12. Weighing the words in
context, the Court concluded that “[n]o reader could have thought that
either the speakers at the meetings or the newspaper articles reporting their
words were charging [the developer] Bresler with the commission of a
criminal offense.” Id. at 14. Rather, “even the most careless reader must
have perceived that the word was no more than rhetorical hyperbole, a
vigorous epithet used by those who considered Bresler’s negotiating
position extremely unreasonable.” Id. Thus, an assertion that ordinarily
could bear a defamatory meaning, and that could be proven false, was
deemed nonactionable under the First Amendment because the context
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demonstrated, as a matter of law, that it was a hyperbolic comment made
during a charged public hearing on a matter of public concern.
¶20 In Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the Court
considered a case in which a high school wrestling coach brought a libel
action against a publication that allegedly implied he had committed
perjury. The Court held there is no wholesale exemption for statements of
opinion in defamation cases, id. at 18, but that statements on matters of
public concern must be provable as false in order for liability to occur under
state defamation law, id. at 19. The Court ruled that as to defamatory
opinions made against private figures on matters of public concern, “a
plaintiff must show that the false connotations were made with some level
of fault,” id. at 20, and that there must be “enhanced appellate review” to
assure that those determinations are made in a manner that does not chill
free expression, id. at 21 (citing Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 499 (1984)).
¶21 The Court in Milkovich considered an opinion piece titled
“Maple beat the law with the ‘big lie.’” Id. at 4. The article in its entirety
was about the coach, identified by name, and the superintendent, who
testified at a court hearing. Id. at 3–5. The Court concluded that the article’s
caption and nine sentences were actionable because they clearly implied
that the coach had committed perjury, an assertion that was provable as
false. Id. at 21.
¶22 This Court addressed these issues in Yetman, in which it held
actionable a defamation claim by a county supervisor against a state
legislator who, speaking about the supervisor at a political party meeting,
asked, “What kind of communist do we have up there that thinks it’s
improper to protect your interests?” 168 Ariz. at 73. Applying Milkovich,
the Court held, as pertinent here, that to establish a defamation claim on
matters of public concern: (1) the assertion must be provable as false; (2) the
statement must be reasonably perceived as stating actual facts about an
individual, rather than imaginative expression or rhetorical hyperbole; and
(3) the determination of those questions is subject to enhanced appellate
review. 1 Id. at 75–76. The Court went on to conclude that those three
1The Court also applied the New York Times “actual malice” standard, 376
U.S. at 279–80, which is inapplicable here as Young is not a public figure.
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criteria were satisfied under the facts presented, allowing the defamation
action to proceed. 2 Id. at 81–82.
¶23 Yetman articulated well the important gatekeeper role courts
must play in safeguarding First Amendment principles in the defamation
context, declaring that “only in the clearest cases may courts, applying the
principles laid down in Milkovich, determine as a matter of law that the
assertions before them state or imply actual facts and are therefore entitled
to no constitutional protection.” Id. at 79. Thus, “it will be necessary for
courts to carefully examine every alleged defamatory statement . . . to
ensure that first amendment concerns are protected. This examination
must ensure that the matter is left to the jury only where there are truly two
tenable views or interpretations of the statement.” Id.
¶24 Some courts have added even greater specificity to
determinations that must be made in defamation cases involving public
figures or issues of public concern. In Unelko Corp. v. Rooney, 912 F.2d 1049,
1050 (9th Cir. 1990), the Ninth Circuit considered an action against a
television commentator who asserted that a particular product “didn’t
work.” The court developed a three-part test for determining whether an
assertion is a statement of fact: (1) whether a defendant used figurative or
hyperbolic language that negated the impression that the statement was a
serious factual assertion, (2) whether the general tenor of the message as a
whole negated that impression, and (3) whether the assertion is susceptible
of being proved true or false. Id. at 1053.
¶25 The District of Columbia Circuit, recognizing that defamation
by implication is a step beyond direct defamatory statements, applies an
intent standard in such cases. In White v. Fraternal Order of Police, 909 F.2d
512, 520 (D.C. Cir. 1990), the court held that “if a communication, viewed in
its entire context, merely conveys materially true facts from which a
defamatory inference can reasonably be drawn, the libel is not established.”
“But if the communication, by the particular manner or language in which
2 Although we apply the Yetman framework, it is difficult to credit its
outcome, especially given how political discourse has devolved over the
past three decades. Terms that once conveyed powerful invective such as
“communist,” “socialist,” “fascist,” and even “traitor” are commonplace in
current political discourse, cheapening their pejorative impact and
becoming almost synonymous with “someone with whom I disagree.”
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the true facts are conveyed, supplies additional, affirmative evidence
suggesting that the defendant intends or endorses the defamatory inference,
the communication will be deemed capable of bearing that meaning.” Id.¶26 We need not go beyond U.S. Supreme Court or our own
jurisprudence to resolve this case, and therefore we decline to adopt either
Unelko or White. But both cases are instructive. Unelko teaches (as does
Greenbelt) that context is important in determining whether a statement is a
genuine factual statement or rhetorical hyperbole. White demonstrates that
defamation by implication—that is, where the actual spoken or written
words are materially true but give rise to a palpable inference—presents
special concerns in discussions about public affairs. We take those lessons
into account as we apply below the applicable First Amendment
framework to the facts of this case.
¶27 Doing so requires acknowledging that if there is a garden-
variety defamation claim involving a matter of public concern, this is not it.
We are unable to identify, and the parties did not supply, any other case
presenting third-party defamation by implication. As a result, this case,
even more than most, calls upon us to perform the enhanced appellate role
necessary to ensure that core First Amendment values are protected, and
thus to examine with great care the statement at issue, the context in which
it was made, and the implication it allegedly generated.
C.
¶28 Certain baseline facts that are relevant to our determination
were established over the course of the litigation to date. First, Young is a
private figure, and therefore the New York Times “actual malice” standard,
376 U.S. at 279–80, is not applicable. Second, Rogers concedes that it is
widely known that Smith was employed by Young, so that the reference to
“Smith . . . whose agency” in the advertisement could be taken by at least
some listeners as referring to Young.
¶29 At the same time, Young does not dispute the factual accuracy
of the statement at issue: “Smith is a slimy character whose modeling
agency specializes in underage girls and advertises on websites linked to
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sex trafficking.” 3 Ordinarily, that concession would command a hard-stop
to the litigation, as “[t]ruth may not be the subject of either civil or criminal
sanctions where discussion of public affairs is concerned.” Garrison v.
Louisiana, 379 U.S. 64, 74 (1964).
¶30 Instead, Young argues that it is the statement’s implication—
which she asserts is that Young is complicit in sex trafficking children—that
is defamatory. A mere implication derived from a concededly factual
statement is a significant step removed from a statement that is expressly
defamatory, requiring us to ensure that the implication is clear and fully
capable of being proved false. Cf. White, 909 F.2d at 520 (applying
heightened scrutiny to allegations of defamation by implication). The First
Amendment does not permit us to indulge the plaintiff’s “intensely
subjective evaluation” of the meaning and falsity of a statement. Turner v.
Devlin, 174 Ariz. 201, 207 (1993) (relying on Milkovich). Rather, we must
objectively determine the statement’s “natural and probable effect on the
mind of the average recipient.” Yetman, 168 Ariz. at 77.
¶31 Even in a defamation case involving only matters of private
concern, our task is to examine the alleged defamatory statement in its
context. Restatement § 563 cmt. d. That requirement is even more
important when we are dealing with a matter of public concern, where we
seek to ensure that First Amendment freedoms are not abridged. Indeed,
context may well be dispositive. Compare Greenbelt, 398 U.S. at 14 (holding
that the term “blackmail” in the context of a heated public meeting was
hyperbole), with Milkovich, 497 U.S. at 3–5 (finding the entire column and its
headline were directed entirely toward the conclusion that the coach
committed perjury).
¶32 Although it is important that the advertisement occurred in
the context of a bitterly fought political campaign, we will not look beyond
the advertisement to consider the broader themes of the Rogers campaign,
as the court of appeals did. See Rogers, 250 Ariz. at 333 ¶¶ 56–57
3 As the court of appeals noted, the term “specializes in underage girls”
necessarily bears a negative connotation, as definitions of “underage”
would suggest that the models are below some sort of legal or proper age.
Rogers, 250 Ariz. at 329 ¶ 39. Young could possibly have challenged this
part of the statement as false and damaging, and therefore defamatory.
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(considering the campaign’s overall strategy of undermining Smith’s
portrayal as a family-values candidate). We do not expect that a reasonable
listener would research an overall campaign strategy in order to determine
the meaning of a specific advertisement. 4 But we must view the statement
within the entirety of the publication, as the meaning or implication is only
fully apparent in context. That is certainly the case here, as the
advertisement in its totality makes quite clear that Steve Smith is the
exclusive raison d’etre for the attack.
¶33 Indeed, Young embraces hyperbole of her own when she
contends she is “center stage” in the advertisement. Quite the contrary; she
is off-stage and makes an appearance, if at all, only to those who recognize
that Smith’s agency is Young Agency, or who are impelled to research to
whom the agency belongs. And even then, the appearance is a supporting
role, with the spotlight firmly fixed on Smith.
¶34 The entire radio advertisement is 132 words long. The
contested statement consists of twenty words—or fifteen, if the words
“Smith is a slimy character” are excised. Smith is mentioned in the
advertisement four times; of course, Young is not mentioned by name at all.
Indeed, the insinuation is that the agency belongs to Smith (“Smith . . .
whose agency”), so much the better to paint him as slimy. The sole instance
in which anyone other than the opposing candidate is identified is when
the advertisement talks about Rogers and the fact that she paid for it,
establishing exactly what the advertisement is: an attack ad aimed at Steve
Smith. Although Young technically satisfies the state defamation law
requirement that the statement pertains to her, her actual connection with
the advertisement is attenuated. See, e.g., AMCOR Inv. Corp. v. Cox Ariz.
Publ’ns, Inc., 158 Ariz. 566, 570–71 (App. 1988) (“[I]t is important here that
the primary target of Jennings’ ire was the city council, not AMCOR.”).
¶35 That the statement is challenged not on its express terms, but
by its asserted implication, makes it doubly attenuated. The nature of
4 Nor do we believe, contrary to the court of appeals’ suggestion, id. at 330
¶ 43, that expert testimony is necessary, or even particularly useful, to
establish a statement’s meaning or implication given that jurors are capable
of discerning a reasonable listener’s understanding. See Ariz. R. Evid.
702(a) (permitting expert testimony to “help the trier of fact to understand
the evidence or to determine a fact in issue”).
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defamation by implication is that the express words are true, but a
secondary meaning is false. It is inherently difficult to prove the falsity of
an implication—as is required by the First Amendment on matters of public
concern, see, e.g., Milkovich, 497 U.S. at 16; White, 909 F.2d at 520—because
an implication necessarily lies in the eyes of the reader or the ears of the
listener.
¶36 Here, the implication of the reference to Smith’s agency,
viewed in isolation, could be a number of things, including the meaning
Young suggests. But Rogers leaves the implication neither to the
intelligence nor imagination of the listener. She supplies it with the
prefacing words, “Smith is a slimy character.” Those words are crucial for
two reasons. First, they identify Smith, and not Young, as the target of the
advertisement, which is consistent with the advertisement as a whole.
Second, and more importantly, the assertions about the agency are used to
corroborate the stated charge: not that Smith is complicit in sex trafficking,
but that he is slimy (a charge that as applied to a human or a business is, of
course, incapable of being proved true or false). It is extraordinarily
difficult to credit the assertion that the exact same words that are used to
demonstrate that Smith is slimy also imply that Young is complicit in sex
trafficking. Yet that proposition is essential to Young’s defamation theory.
¶37 The dissenters respond they are mystified because “[t]he 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.” Infra ¶ 46. That is flatly wrong. 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. That is a far cry
from any reasonably understood inference that the agency itself is engaged
in sex trafficking girls. Sex trafficking girls makes one a criminal. Making
a living in a seedy business makes one “slimy,” which is exactly what the
advertisement alleges that Smith does.
¶38 The assertion that the contested statement implies that Young
is complicit in sex trafficking is simply too remote to infer on behalf of a
reasonable listener in the context of an attack ad directed toward a specific
named individual that aims to prove he is slimy. It is especially untenable
in light of the First Amendment’s protection of political speech. At worst,
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it is “the sort of loose, figurative, or hyperbolic language which would
negate the impression” that Rogers was “seriously maintaining” that
Young was complicit in sex trafficking. Milkovich, 497 U.S. at 21. 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.
¶39 Were we to allow this claim to proceed, any third party who
might indirectly be identified in a passing reference in a political
advertisement (a business’s patrons or an official’s inner circle, for
instance), would have a cause of action if a possible 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. Young’s counsel identified no limiting principle for such a
theory, nor can we perceive any.
¶40 The only backstop in such instances would be the jury, whose
good judgment can ordinarily be counted on to ferret out true instances of
defamation. But a jury’s charge, unlike ours, does not include safeguarding
freedom of speech. See Yetman, 168 Ariz. at 79 (stating that defamation case
may proceed to the jury “only where there are truly two tenable views” of
the statement at issue); cf. Snyder v. Phelps, 562 U.S. 443, 458 (2011)
(recognizing that a jury’s ability to make subjective determinations in a state
tort lawsuit is in tension with the “special protection” the First Amendment
provides to speech about public affairs). 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. Recognizing a
claim of third-party defamation by implication in the context of public
debate, where the challenged statement is conceded to be true and the
alleged offending implication is not obvious, would therefore inevitably
and intolerably chill political speech.
¶41 None of this is meant to disparage Young’s grievance. She
asked to stay out of the fray. It is not uncommon for friends, family,
supporters, and professional associates of candidates and public figures to
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ROGERS, ET AL. v. HON. MROZ, ET AL.
Opinion of the Court
be swept involuntarily into the political maelstrom, and it is essential for
defamation remedies to be available in meritorious cases. But “in public
debate [we] must tolerate insulting, and even outrageous, speech in order
to provide ‘adequate “breathing space” to the freedoms protected by the
First Amendment.’” Boos v. Barry, 485 U.S. 312, 322 (1988) (quoting Hustler
Mag., Inc. v. Falwell, 485 U.S. 46, 56 (1988)). The claim here is simply too
attenuated to be actionable without inflicting a serious chilling effect upon
important, even if repugnant, political speech.
¶42 As the complaint fails to allege “specific facts showing a
genuine issue for trial,” Ariz. R. Civ. P. 56(e), we remand the matter to the
trial court to grant summary judgment for the defendants. We vacate the
opinion of the court of appeals.
15
ROGERS, ET AL. V. HON. MROZ, ET AL.
VICE CHIEF JUSTICE TIMMER, joined by BRUTINEL, C.J.
and ESPINOSA, Judge, Dissenting
TIMMER, VCJ., joined by BRUTINEL, CJ., and ESPINOSA, Judge.,
dissenting.
¶43 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. Because
Rogers’ radio advertisement here permitted a reasonable factfinder to
conclude that it implied as a matter of actual fact that Young Agency was
complicit in sex trafficking girls, a fact provable as false, the trial court
properly denied Rogers’ motion for summary judgment.
¶44 A defamatory communication brings another person into
“disrepute, contempt, or ridicule” or impeaches a person’s “honesty,
integrity, virtue, or reputation.” Turner v. Devlin, 174 Ariz. 201, 203–04
(1993) (quoting Godbehere v. Phx. Newspapers, Inc., 162 Ariz. 335, 341 (1989)).
An allegedly defamatory communication—express or implied—about a
private person, but involving matters of public concern, is actionable when
the challenged statements, considering their content and context, (1) could
reasonably be interpreted as stating actual facts about the person, which (2)
are provable as false. See Yetman v. English, 168 Ariz. 71, 75 (1991) (citing
Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20, 20 n.6 (1990)); Turner, 174
Ariz. at 204. If so, the defamed person must show by a preponderance of
evidence that the speaker knew the statement was false and defamed him
or her, acted in reckless disregard of those circumstances, or acted
negligently in failing to ascertain them. See Peagler v. Phx. Newspapers, Inc.,
114 Ariz. 309, 315 (1977); Restatement (Second) of Torts § 580B (Am. Law
Inst. 1977).
¶45 The issue here is whether the radio advertisement’s
pronouncement—”Smith is a slimy character whose modeling agency
specializes in underage girls and advertises on websites linked to sex
trafficking”—could reasonably be understood by at least one listener as
implying as a matter of actual fact that Young Agency was complicit in sex
trafficking girls. See Yetman, 168 Ariz. at 76 (noting “[t]he key inquiry is
whether the challenged expression, however labeled by defendant, would
16
ROGERS, ET AL. V. HON. MROZ, ET AL.
VICE CHIEF JUSTICE TIMMER, joined by BRUTINEL, C.J.
and ESPINOSA, Judge, Dissenting
reasonably appear to state or imply assertions of objective fact” from the
perspective of a reasonable person (emphasis omitted) (quoting Immuno
AG. v. Moor-Jankowski, 567 N.E.2d 1270, 1273–74 (N.Y. 1991))); see also
Restatement § 564 cmt. b (explaining it is sufficient if one recipient of the
communication reasonably understands to whom it is referring). The
majority acknowledges that some listeners could understand the contested
statement as meaning Young Agency was complicit in sex trafficking girls,
indisputably a defamatory communication. See supra ¶¶ 28, 33–34, 36. It
nevertheless concludes, as a matter of law, that because the advertisement
targeted Smith as “slimy,” and the assertion against Young Agency only
corroborated this hyperbolic characterization, a reasonable person could
not have understood the advertisement as meaning Young Agency was
complicit in sex trafficking. See supra ¶¶ 37–38.
¶46 The majority’s reasoning strains logic and, frankly, mystifies
us. If a reasonable person could not have understood the advertisement as
meaning Young Agency was complicit in sex trafficking, the assertion
against the agency could not have corroborated Rogers’ characterization of
Smith as “slimy.” 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.
¶47 The majority cites no authority for its position that a
campaign advertisement, and presumably any communication, cannot, as
a matter of law, defame a third party who is not the advertisement’s
primary target. There is none. The communication need only be “of and
concerning” the third party. See Hansen v. Stoll, 130 Ariz. 454, 458 (App.
1981); Restatement § 564. Here, both Rogers and the majority concede that
the challenged language in the radio advertisement was “of and
concerning” Young Agency because it was widely known the agency
employed Smith. See supra ¶ 28. Indeed, Rogers’ website itself,
slimysteve.com, stated Smith was a director at Young Agency. See
Restatement § 564 cmt. b (“Extrinsic facts may make it clear that a statement
refers to a particular individual although the language used appears to
defame nobody.”).
17
ROGERS, ET AL. V. HON. MROZ, ET AL.
VICE CHIEF JUSTICE TIMMER, joined by BRUTINEL, C.J.
and ESPINOSA, Judge, Dissenting
¶48 The trial court here properly denied the summary judgment
motion. A reasonable factfinder could conclude, as the majority suggests,
that the statement concerning Young Agency was merely political
invective, which would be privileged under the First Amendment. See
Yetman, 168 Ariz. at 77. But it could also conclude that the statement
implied as an assertion of actual fact that Smith’s agency—Young Agency—
was complicit in sex trafficking girls, which would not be privileged. See
id. Although the facts regarding the agency may have been accurate, the
presentation of those facts—stating Smith was “slimy” because he worked
there, using the term “underage girls” to insinuate they were not legally
permitted to engage in the agency’s modeling assignments, and stating the
agency advertised on websites linked to sex trafficking—implied as a
matter of actual fact that Young Agency was complicit in sex trafficking, a
matter capable of being proved false. See id. at 75–76.
¶49 The majority supplants the jury’s role in deciding factual
issues like the one here fearing a limitless barrage of lawsuits against
candidates for defamatory implications in campaign communications, that
juries won’t safeguard the First Amendment, and that candidates’ speech
might be chilled out of concern for “costly litigation and potentially
embarrassing discovery.” See supra ¶¶ 38–40. But these concerns don’t
justify removing this and like cases from juries. The Milkovich protections,
see supra ¶¶ 20–22, which we apply in this dissent, are “adequate to ensure
that debate on public issues remains ‘uninhibited, robust, and wide open.’”
Yetman, 168 Ariz. at 75 (quoting Milkovich, 497 U.S. at 20). But when
“reasonable people might clearly give conflicting interpretations” to
challenged communications, “the question must be left to the jury.” Id. at
79; see also Restatement § 617 (stating that subject to the court’s normal
controls, “the jury determines whether (a) the defamatory matter was
published of and concerning the plaintiff; (b) the matter was true or false;
and (c) the defendant had the requisite fault in regard to the truth or falsity
of the matter and its defamatory character”). That is the situation here.
¶50 In short, the majority today largely bars claims for implied
defamation against private parties in political campaigns because political
opponents, not private parties, will usually, if not always, be the targets of
political speech. This view effectively weaponizes the First Amendment
against innocent bystanders ensnared by often-vitriolic political campaigns,
18
ROGERS, ET AL. V. HON. MROZ, ET AL.
VICE CHIEF JUSTICE TIMMER, joined by BRUTINEL, C.J.
and ESPINOSA, Judge, Dissenting
disregards well-established precedent, and is unnecessary for protecting
political speech. We respectfully dissent.
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