Sen. Wendy Rogers /Capitol Media Services 2012 file photo by Howard Fischer
By Howard Fischer | Capitol Media Services
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 that 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 that neither the agency nor owner Pamela Young played a role in the campaign.
But Justice Clint Bolick, writing for the majority, pointed out that Young was not named in the radio commercial which 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 that 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 it the decision protects free speech rights.
