Arizona state Sen. Wendy Rogers’ mud-slinging campaign ad in 2018 could lead to a ground-breaking court ruling on an average person’s ability to sue a public figure who defames them.
In a lively discussion of free-speech rights, the Arizona Supreme Court on Tuesday heard arguments in the lawsuit filed against Rogers by Phoenix modeling business owner Pamela Young, who claims Rogers “unnecessarily tarnished” her reputation and that of the Young Agency.
Rogers, a Flagstaff resident who was elected to the Legislature last year after a decade of failed Congressional races, used the radio ad to attack her Republican primary opponent, Steve Smith, in the race for Congressional District 1. (Democrat Tom O’Halleran ultimately won in the general election.)
The ad labeled Smith, as “a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.” A former District 11 Arizona lawmaker, Smith is a talent agent and director of Young Agency.
Young filed suit in October 2018, claiming the ad subjected her and the agency to “hatred” and “contempt” and deterred people from conducting business with them.
Maricopa County Superior Court Judge Rosa Mroz ruled in Young’s favor, but a 2-1 decision by the state Court of Appeals last year overturned that ruling, even as the opinion acknowledged Young had a “sterling reputation.” Young then appealed to the state Supreme Court.
She found an ally in state Attorney General Mark Brnovich, who filed an amicus brief in July that said the case has implications for all Arizona citizens “and their ability to recover for false speech causing reputational harm.”
What the Justices asked attorneys
During the hearing, the six justices and one substitute, Philip Espinosa of the state appeals court’s Division Two who sat in for Bill Montgomery, peppered lawyers on both sides with questions that gave little indication of their leanings in the case.
Vice Chief Justice Ann Timmer interrupted Young’s attorney lawyer, Amy Sells, just seconds after she began her remarks, asking whether an issue of the case is whether the statement in question in the ad was “provably false.”
As Sells replied, the case will “turn on the meaning of the attack ad.”
Usually, it’s exceedingly difficult for public figures like politicians and movie stars to collect damages based on defamation or libel because of the precedent-setting New York Times vs. Sullivan case from 1964.
As everyone who publishes — including social media users — should know, the case established a nationwide precedent that public figures can only collect damages if there was “actual malice” behind the alleged defamatory statements, which usually comes down to whether the person who made the statements knew they were false.
Although the ad attacked Smith, the modeling agency was pulled into the spotlight because of it.
The ad’s statements by themselves aren’t necessarily false. The agency does contract with girls, and a site Smith used to market his business, ModelMayhem.com, was featured in a 2013 ABC News piece about its use by suspected sex predators.
As Sells argued, when you put it all together, the implication is that Young Agency is “complicit” in a crime. Whether Young and the agency could be harmed by “implied” defamation became a significant question for the court.
Was the modeling agency defamed?
Justice Clint Bolick gave a hypothetical situation, asking if someone said that “Trump and all his supporters are fascists,” but a well-known Trump supporter could prove he wasn’t a fascist, does that mean the person could sue on the implied insult?
Sells replied that the Young case is “of and concerning” the plaintiff in the case, in contrast to that scenario.
That led to questions about how anyone would know Rogers’ ad was talking specifically about Young’s agency, how much “investigation” a listener might need to do to make the connection, and whether a “reasonable person” would hear the ad and believe the agency was defamed.
Rogers’ attorney, Dominic Draye, said the theory that Young or her agency were wronged was “absurd,” and that it would fly against existing case law to expose a candidate to “ruinous” damages or even a lengthy litigation process due to “implied defamation,” noting that this case has gone on for three years and he doesn’t “work for free.”
He said Young’s case depends on whether a “reasonable person” would assume the modeling agency is complicit in crimes, adding that he believes it would not be reasonable to deduce that from the campaign ad.
Justice Espinosa told Draye that he’s mentioned the offending statements in Rogers’ ad to several “reasonable” people, and they’ve all told him that based on those, they would “want nothing to do with that modeling agency.”
He asked Draye if Young would be simply “out of luck” if she had gone out of business because of the negative attention from the ad.
“That’s correct,” Draye replied.
Worse though, he said, would be if the “implied defamation” argument held up in the case because the effects on political speech would be “limitless.” For example, a hospital could sue someone who “defamed a doctor” who works there, he said.
AG questions NYT v. Sullivan ruling
In their amicus brief, Brnovich and three of the office’s top staff, framed the case as one of the states’ rights and slammed the 1964 ruling, noting that “prominent judges” have questioned whether it was correctly decided. The Arizona Supreme Court, in its own previous rulings, “made it easier for private plaintiffs to recover from reputational harm,” they wrote.
The high court should use its own rulings to show that the statements “could be interpreted to imply criminal misconduct,” the brief says. If so, “then Plaintiffs are entitled to their day in court.”
Young is seeking an unstated amount of punitive, presumed, and other damages in the lawsuit.
Rogers attended today’s hearing but left through a side door without answering questions. She didn’t respond to later messages.
Young, who was not at the hearing, declined comment.
The 46-minute hearing is posted on the state Supreme Court’s website.