Citizen Publishing Co. v. Miller, CV-04-0280-PR.

• Decision Date: 01 July 2005
• Docket Number: No. CV-04-0280-PR.,CV-04-0280-PR.
• Citation: 115 P.3d 107,210 Ariz. 513
• Parties: CITIZEN PUBLISHING CO., an Arizona Corporation, Petitioner, v. Hon. Leslie MILLER, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent Judge, Aly W. Elleithee and Wali Yudeen S. Abdul Rahim, Real Parties in Interest.
• Court: Arizona Supreme Court

Page 107

115 P.3d 107

210 Ariz. 513

CITIZEN PUBLISHING CO., an Arizona Corporation, Petitioner, v. Hon. Leslie MILLER, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent Judge Aly W. Elleithee and Wali Yudeen S. Abdul Rahim, Real Parties in Interest.

No. CV-04-0280-PR.

Supreme Court of Arizona, En Banc.

July 1, 2005.

COPYRIGHT MATERIAL OMITTED

Steptoe & Johnson, LLP by David J. Bodney, Peter S. Kozinets, Chris Moeser, Phoenix, Attorneys for Citizen Publishing Company.

Herbert Beigel & Associates, LLC by Herbert Beigel, Tucson, Attorneys for Aly W. Elleithee and Wali Yudeen S. Abdul Rahim.

Maynard Cronin Erickson Curran & Sparks, P.L.C. by Daniel D. Maynard, Phoenix, Attorneys for Amicus Curiae The Thomas Jefferson Center for the Protection of Free Expression.

Perkins Coie Brown & Bain, P.A. by Daniel C. Barr, Phoenix, Attorneys for Amicus Curiae The Reporters Committee for Freedom of the Press.

OPINION

HURWITZ, Justice.

¶ 1 The issue before us is whether liability for intentional infliction of emotional distress can be imposed against a newspaper for printing a letter to the editor about the war in Iraq.

I.

¶ 2 On December 2, 2003, the Tucson Citizen ("the Citizen") published a letter on its Op-Ed page from Emory Metz Wright, Jr. In its entirety, the letter stated:

We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter.

After all this is a "Holy War" and although such a procedure is not fair or just, it might end the horror.

Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis.

¶ 3 The letter prompted immediate adverse reaction. From December 4 through 6, 2003, the Citizen published twenty-one letters from readers who criticized Wright's letter. Among the critical letters was one from real party in interest Aly W. Elleithee.

¶ 4 On January 13, 2004, Elleithee and Wali Yudeen S. Abdul Rahim ("Plaintiffs") filed a complaint in superior court in Pima County against the Citizen and Wright for assault and intentional infliction of emotional distress, seeking damages and injunctive relief.¹ Plaintiffs sought to represent a putative class of "all Islamic-Americans who live in the area covered by the circulation of the Tucson Citizen, including the reach of the Internet website published by the Tucson Citizen."

¶ 5 The Citizen moved to dismiss the complaint for failure to state a claim pursuant to Arizona Rule of Civil Procedure 12(b)(6). The superior court dismissed the assault claim but declined to dismiss Plaintiffs' claim for intentional infliction of emotional distress, holding that "reasonable minds could differ in determining whether the publication of the letter rose to the level of extreme and outrageous conduct" needed to establish the emotional distress tort. The court also rejected the Citizen's First Amendment argument for dismissal, reasoning that "a public threat of violence directed at producing imminent lawlessness and likely to produce such lawlessness is not protected."

¶ 6 The Citizen filed a special action petition in the court of appeals seeking review of the superior court's order refusing to dismiss the intentional infliction of emotional distress claim. The court of appeals, by a 2-1 vote, declined to accept jurisdiction. The Citizen then filed a petition for review in this Court. We granted the petition because of the public importance of the issue presented. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") § 12-120.24 (2003).

II.

¶ 7 This case involves an unusual exercise of our discretionary review. "[B]ecause relief by special action is largely discretionary, we follow a general policy of declining jurisdiction when relief by special action is sought to obtain review of orders denying motions to dismiss. . . ." United States v. Superior Court (In re the General Adjudication of All Rights to Use Water in the Gila River System and Source), 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). This policy recognizes that special action review of such interlocutory rulings "often frustrates the expeditious resolution of claims, unnecessarily increases both appellate court caseload and interference with trial judges, harasses litigants with prolonged and costly appeals, and provides piecemeal review." City of Phoenix v. Yarnell (Smith), 184 Ariz. 310, 315, 909 P.2d 377, 382 (1995). It follows that we will rarely review the court of appeals' discretionary refusal to accept jurisdiction of a special action challenging the denial of a motion to dismiss or motion for summary judgment.

¶ 8 There is good reason to depart from this general rule, however, when a suit raises serious First Amendment concerns. In Scottsdale Publishing, Inc. v. Superior Court (Romano), the court of appeals made an "exception" to its usual reluctance to review a denial of summary judgment by special action because of "the public's significant first amendment interest in protecting the press from the chill of meritless libel actions." 159 Ariz. 72, 74, 764 P.2d 1131, 1133 (App.1988). Other courts have come to similar conclusions. See, e.g., Washington Post Co. v. Keogh, 365 F.2d 965, 966-67, 968 (D.C.Cir.1966) (hearing an interlocutory appeal from the denial of a motion for summary judgment in a defamation case); Schaefer v. Lynch, 406 So.2d 185, 187 (La.1981) (recognizing an exception to the general rule prohibiting appeals from a court's refusal to grant summary judgment in cases implicating the First Amendment to avoid a "chilling effect" on the freedom of press); cf. AMCOR Inv. Corp. v. Cox Ariz. Publ'ns, Inc., 158 Ariz. 566, 568, 764 P.2d 327, 329 (App.1988) ("[W]hen the complaint implicates the fundamental value of freedom of the press, there is good reason for a court to examine the complaint with a more rigorous eye in order not to burden public debate with insupportable litigation.").

¶ 9 In cases in which an appellate court can determine from the pleadings a case-dispositive First Amendment defense, special action review of a trial court's refusal to grant a motion to dismiss may be appropriate. Such a procedure "relieve[s] the parties and the court of a prolonged, costly, and inevitably futile trial" and protects First Amendment rights. Scottsdale Publ'g, 159 Ariz. at 74, 764 P.2d at 1133.

¶ 10 This is such a case. There is no dispute about the content of the letter to the editor that forms the basis for this litigation; the letter is set forth in its entirety in the complaint. The only issue is whether the publication of that letter is protected by the First Amendment. We therefore proceed to the merits of that issue.

III.

A.

¶ 11 The tort of intentional infliction of emotional distress requires proof of three elements:

[F]irst, the conduct by the defendant must be "extreme" and "outrageous"; second, the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct; and third, severe emotional distress must indeed occur as a result of defendant's conduct.

Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987); accord Restatement (Second) of Torts § 46 (1965). For present purposes, we assume arguendo that the superior court correctly held that Plaintiffs' complaint stated a claim for intentional infliction of emotional distress.

¶ 12 However, our assumption that the complaint states a claim for relief under Arizona tort law merely begins the inquiry. The First Amendment to the United States Constitution, made applicable to the states by the Due Process Clause of the Fourteenth Amendment, provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. Const. amend. I. The landmark case of New York Times Co. v. Sullivan recognized that the enforcement of state tort law through civil litigation may "impose invalid restrictions on . . . constitutional freedoms of speech and press" and thus constitute state action denying due process of law in violation of the Fourteenth Amendment. 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); accord NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 n. 51, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) ("Although this is a civil lawsuit between private parties, the application of state rules of law by the . . . state courts in a manner alleged to restrict First Amendment freedoms constitutes `state action' under the Fourteenth Amendment."). The Supreme Court has most often applied the New York Times doctrine in the context of defamation actions, but it has expressly recognized that the same First Amendment principles apply to tort suits alleging speech-based intentional infliction of emotional distress. See Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).

¶ 13 While speech involving private matters "is not totally unprotected by the First Amendment," Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), in most such cases a state's interest in compensating its citizens for injuries arising from tortious speech will outweigh any First Amendment concerns, id. at 757-61, 105 S.Ct. 2939. "Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently `outrageous.'" Hustler Magazine, 485 U.S. at 53, 108 S.Ct. 876.

¶ 14 But when speech involves a matter of public concern, the...