Rogers v. Mroz
| Decision Date | 08 December 2020 |
| Docket Number | No. 1 CA-SA 19-0262,1 CA-SA 19-0262 |
| Citation | 479 P.3d 410,250 Ariz. 319 |
| Parties | Wendy ROGERS and Hal Kunnen, husband and wife, and wendyrogers.org, a principal campaign committee, Petitioners, v. The Honorable Rose 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 Court of Appeals |
¶1 Our constitutional democracy preserves and protects the fundamental rights of free speech and free association. This is especially true in elections, when voters need more information about the candidates who seek to represent them and candidates have nothing but words and ideas in their political contest for hearts and minds. At issue in this defamation action are two political attack ads published by one candidate against her political opponent in a heated congressional primary, which later caused the second candidate's employer to sue the first candidate and her campaign for defamation and false light. We must determine whether the employer presented enough evidence at summary judgment for reasonable persons to find, with convincing clarity, that the attack ads implied the employer and its founder either committed or supported sex crimes.
¶2 Wendy Rogers, Hal Kunnen and Wendy Rogers for Congress (collectively, "Rogers") petition for special action relief to reverse the superior court's denial of their motion for summary judgment on the defamation and false light claims of Pamela Young and the Young Agency (collectively, "Young"). We previously accepted jurisdiction and granted relief, reversing the superior court and promising an opinion to follow. This is that opinion.
¶3 Steve Smith joined the Young Agency as a talent agent in 2007. Based in Phoenix, the Agency represents models, actors and talent of all ages, "ranging from newborn to ninety." Child models comprise around 50 percent of the Agency's modeling clients. Pamela Young founded the Agency and owns it. A "former model and actor" herself, Young authored a how-to book for child models in 2015 with "secrets" and "tips" to achieve success. Pamela Young, How to Become a Kid Model: Secrets & Tips to Skyrocket Your Career! (2015).
¶4 ModelMayhem.com ("Model Mayhem") is an internet-based platform and professional marketplace for the modeling industry. Steve Smith said the website was "considered by many as an industry place where all folks in the industry would go if they needed talent." In that spirit, Smith created a "Modeling Agent" profile on ModelMayhem.com and similar websites. Smith's profile featured the Agency's logo and described the Agency as "one of the largest Model and Talent Agencies in the [southwest]."
¶5 Over the years, Model Mayhem acquired a sketchy reputation as a platform for sex criminals and some users accused the website's owners of failing to warn them "the site had been used for sex trafficking." ABC News released a story in March 2013 on the "dangerous history" of Model Mayhem, "the website that promises to connect aspiring models with the people who can help rocket them to fame." Evan Millward, Modeling Website Linked to Disappearances, Rape and Human Trafficking , ABC News (May 6, 2013).2 The article reported Model Mayhem was "being investigated for its role in the disappearance, rape and trafficking of more than a dozen women across the country." The reporter interviewed three sources for the article—a model, a photographer and a police detective. All three shared a concern about sexual predators lurking in the dark corners of ModelMayhem.com, waiting for easy prey. The National Women's Coalition Against Violence and Exploitation "said it can connect a dozen missing girls nationwide to the website."
¶6 The ABC News reporter briefly touched upon one victim's nightmare as gleaned from her failure-to-warn lawsuit against Model Mayhem's owners. The victim "alleged she was drugged and raped on video [and] that Model Mayhem knew the two men had been committing these crimes to other women across the country and did not stop them or warn users on the site." The article said the lawsuit had been "thr[own] out" in 2012, "but an appeal [was] working its way through the judicial system in California." The victim later dismissed the appeal, voluntarily, which the article did not reflect.
¶7 Steve Smith lived a parallel life in state politics, moonlighting as a state representative and state senator, a common phenomenon in states with part-time legislatures and legislators. Smith was first elected to the Arizona legislature in 2010. From there, he won elections in 2012, 2014 and 2016. Therefore, Smith was a seasoned, undefeated politician when he turned his attention to higher office in 2018.
¶8 Smith ran for Congress in 2018, hoping to represent Arizona's First Congressional District in Washington, D.C. He faced two candidates in the Republican primary, including Wendy Rogers, for the privilege to run against incumbent Congressman Tom O'Halleran, a Democrat, in the general election. Rogers was a seasoned candidate, like Smith, with several elections under her belt, but, unlike Smith, she had never won a general election.
¶9 By all accounts, the campaign was spirited, combative and sometimes unpleasant. Rogers deployed an aggressive multimedia front intended to dismantle Smith's character with questions about his moral fitness. Rogers accused Smith of hiding his longtime day job from voters to protect his holographic image as the "pro-traditional family values" candidate. She pressed this hand-crafted narrative in television and radio ads, mailers and a dedicated website. Young contends Rogers defamed her and the Agency in two campaign publications.
¶10 The radio ad. The first alleged defamation was uttered over the radio by a "narrator [speaking] in a grave and cautious tone" with "creepy audio effects" in the background. The full ad is transcribed here with the alleged defamation italicized:
¶11 The campaign blog. Rogers posted the second statement on her campaign's website, www.slimysteve.com , which teemed with harsh criticism of Steve Smith. This website included blog posts titled "Steve Smith's Campaign Attacks, Associations Demonstrate Hypocrisy," "Steve Smith Endorsed Ted Cruz," "Steve Smith Sponsored an Anti-Gun Bill," and "This Arizona Congressional Candidate Threw Pres. Trump's Wall Under the BUS."
¶12 The challenged statement appeared in a post titled "Steve Smith is a Director for a Modeling Agency that Recruits Children and Advertises on Sites with Playboy Models." The post chided Smith for concealing from voters "the job he's held for the last twelve years." It also purported to recite "facts" about Smith's job in bullet-point form. In this lawsuit, Young complained about the second-to-last bullet point, as shown in this screenshot, which also depicts the last point and emphatic takeaway:
• Further, Steve Smith personally advertises on the website, Model Mayhem, a website
full of pornographic material, which has also been involved in human trafficking
according to ABC News, and has been reported as having a "dangerous history."
• Anti-Human Trafficking Groups Partner Together Against Model Mayhem Where
Steve Smith Advertises
¶13 For her part, Rogers later explained she published both campaign ads to "shine a light on the character of [her] opponent and with whom he associates," enabling "the voter to decide" whether Smith "had bad character." Rogers ultimately prevailed in the primary election, defeating Smith by a narrow margin. She then lost the general election.
¶14 During the primary campaign, Pamela Young learned about the attack ads and "told Smith to keep the Young Agency out of the controversy." Smith threatened to sue Rogers over the negative ads.
¶15 After the election, Young did what Smith had threatened. She sued Rogers in state court for defamation and false light invasion of privacy, alleging the campaign ads implied Young had committed or supported the commission of sex crimes, and demanded presumed, special, general and punitive damages. Rogers answered, denying liability.
¶16 Discovery started. Young requested a broad range of financial records from Rogers in relation to the punitive damages claim, including bank records, tax returns, deeds, financial statements, business interests and more. To avoid disclosing her financial records and information, Rogers moved for summary judgment on all claims, arguing (1) "the First Amendment bars claims for defamation and false light based on truthful statements about a matter of public concern," (2) Young "could not support the proposed defamatory meaning when faced with the high threshold for defamation by implication," and (3) "even if the allegedly defamatory statements were false or the implied defamatory meaning met the test for implied...
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