Rodriguez v. Fox News Network, L. L.C.

• Decision Date: 04 August 2015
• Docket Number: No. 1 CA–CV 14–0437.,1 CA–CV 14–0437.
• Citation: 718 Ariz. Adv. Rep. 14,238 Ariz. 36,356 P.3d 322
• Parties: Angela RODRIGUEZ, as the parent and guardian of JoDon R., Jr., Frank R., and Noah R., Minors, Plaintiff/Appellant, v. FOX NEWS NETWORK, L.L.C., a foreign limited liability company, Defendant/Appellee.
• Court: Arizona Court of Appeals

238 Ariz. 36
356 P.3d 322
718 Ariz. Adv. Rep. 14

Angela RODRIGUEZ, as the parent and guardian of JoDon R., Jr., Frank R., and Noah R., Minors, Plaintiff/Appellant
v.
FOX NEWS NETWORK, L.L.C., a foreign limited liability company, Defendant/Appellee.

No. 1 CA–CV 14–0437.

Court of Appeals of Arizona, Division 1.

Aug. 4, 2015.

356 P.3d 324

Robbins & Curtin, PLLC By Joel B. Robbins, Anne E. Findling, Phoenix, Co–Counsel for Plaintiff/Appellant.

Knapp & Roberts, PC By David L. Abney, Scottsdale, Co–Counsel for Plaintiff/Appellant.

Ballard Spahr, LLP By David J. Bodney, Christopher Moeser, Phoenix, Counsel for Defendant/Appellee.

Judge DIANE M. JOHNSEN delivered the opinion of the Court, in which Presiding Judge PATRICIA K. NORRIS and Judge KENT E. CATTANI joined.

OPINION

JOHNSEN, Judge:

238 Ariz. 38

¶ 1 An armed carjacking suspect led police on a high-speed chase that ended abruptly when he got out of the vehicle, put a handgun to his head and shot himself. After Fox News Networks, LLC, broadcast the chase and the suicide live, the two teenage sons of the suspect learned their father had killed himself when they saw a clip of the broadcast on the Internet a few hours later. Their mother sued Fox on their behalf, alleging negligent and intentional infliction of emotional distress. The superior court granted Fox's motion to dismiss. Because the First Amendment bars the tort claims, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 After stealing a car at gunpoint in west Phoenix, JoDon Romero led police on an 80–mile chase, at one point firing gunshots at officers in pursuit. He made his way to Interstate 10, then weaved in and out of traffic at speeds reportedly exceeding 100 miles an hour before pulling off the freeway near Salome. Several news organizations covered the chase. The local Fox affiliate videotaped it from a news helicopter, and Fox aired the video live during a national broadcast of Studio B with Shepard Smith. Although Fox's normal practice is to use a short video delay that allows it to cut away from a violent scene, it did not do so here, and viewers saw Romero fire the handgun and crumple to the ground. The Fox anchor immediately apologized for showing the suicide.

¶ 3 Romero was the father of three boys who were in school during the incident. After hearing at school about a suicide video, and unaware it involved their father, the two older boys searched for the video online when they got home. They found a clip of the Fox newscast on YouTube, and as they watched, they realized the carjacking suspect who shot himself was their father.

¶ 4 Angela Rodriguez, their mother, sued Fox on behalf of the boys, alleging the video severely traumatized them. Fox moved to dismiss, arguing, inter alia, that the First Amendment protected it from liability. The superior court granted the motion. We have jurisdiction of the timely appeal pursuant to Arizona Revised Statutes section 12–2101(B) (2015).¹

DISCUSSION

A. Standard of Review.

¶ 5 We review de novo the dismissal of a complaint for failure to state a claim, Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012), and will affirm only if a plaintiff “would not be entitled to relief under any facts susceptible of proof in

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356 P.3d 325

the statement of the claim,” Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996). In determining whether a complaint states a claim upon which relief can be granted, we “assume the truth of the well-pled factual allegations and indulge all reasonable inferences therefrom.” Cullen v. Auto–Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008).

¶ 6 A complaint that implicates freedom of the press under the First Amendment, however, requires close scrutiny. 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.”). Close review of such a complaint advances “the public's significant interest in protecting the press from the chill of meritless ... actions.” Scottsdale Publ'g Inc. v. Superior Court, 159 Ariz. 72, 74, 764 P.2d 1131, 1133 (App.1988).

B. The First Amendment Defense to Claims for Intentional or Negligent Infliction of Emotional Distress.

¶ 7 The tort of intentional infliction of emotional distress requires proof of the following 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). The tort of negligent infliction of emotional distress requires a showing that the plaintiff witnessed an injury to a closely related person, suffered mental anguish manifested as physical injury, and was within the zone of danger so as to be subjected to an unreasonable risk of bodily harm created by the defendant. Pierce v. Casas Adobes Baptist Church, 162 Ariz. 269, 272 [782 P.2d 1162, 1165] (1989).

¶ 8 We assume arguendo that the complaint stated these common-law claims. Like the superior court, we will address Fox's constitutional defense so as to protect First Amendment rights and avoid a “prolonged, costly, and inevitably futile trial.” Citizen Publ'g Co. v. Miller, 210 Ariz. 513, 516, ¶ 9, 115 P.3d 107, 110 (2005) (quoting Scottsdale Publ'g, 159 Ariz. at 74, 764 P.2d at 1133 ).

¶ 9 The First Amendment, made applicable to the states by the Due Process Clause of the Fourteenth Amendment, “can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress.” Snyder v. Phelps, 562 U.S. 443, 451, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) ; see, e.g., Citizen Publ'g Co., 210 Ariz. at 517, ¶ 12, 115 P.3d at 111. In Snyder, the Supreme Court addressed speech that, like the broadcast here, had the power to “inflict great pain.” 562 U.S. at 461, 131 S.Ct. 1207. Members of a church used the occasion of the funeral of a young Marine to picket with signs reflecting their “view that the United States is overly tolerant of sin and that God kills American soldiers as punishment.” Id. at 447, 131 S.Ct. 1207. Acknowledging that the signs were “particularly hurtful” to the mourners, id. at 456, 131 S.Ct. 1207, the Court nevertheless held the First Amendment protected the church members from state tort claims because their speech was a matter of public concern, id. at 461, 131 S.Ct. 1207.

¶ 10 Speech on matters of public concern “occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Id. at 452, 131 S.Ct. 1207 (quoting Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ). “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.” Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). Speech involving purely private matters, by contrast, receives less First Amendment protection. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). “That is because restricting speech on purely private

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