Rogers v. Mroz
| Decision Date | 01 February 2022 |
| Docket Number | CV-21-0001-PR |
| Parties | 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. |
| Court | Arizona Supreme Court |
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
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.*
¶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.
¶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, 783 P.2d 781, 787 (1989). But the First Amendment, made applicable to the states through the Fourteenth Amendment, Gitlow v. New York , 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (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, 724 P.2d 562, 567 (1986) (). 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, ––– F.Supp.3d ––––, –––– – ––––, 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, 90 S.Ct. 1537, 26 L.Ed.2d 6 (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 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:
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 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 opinion. 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, 479 P.3d 410, 423 (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, 479 P.3d at 424–25.
¶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, 479 P.3d at 410 (Cattani, J., dissenting) (quoting Yetman v. English , 168 Ariz. 71, 79, 811 P.2d 323, 331 (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, 347 P.3d 1141, 1148 (2015).
¶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, 783 P.2d at 787. "Unless this is free from 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, 811 P.2d at 332. 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...
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...from Khan's article; it is merely one that Jha himself draws.¶34 Although not binding on our court, the opinion in Rogers v. Mroz, 252 Ariz. 335, 502 P.3d 986 (2022), is instructive. In that case, Wendy Rogers and Steve Smith were rival candidates in a primary election for United States Rep......
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