With the never-ending political cycle rolling from one election quickly to the next, the political ads appear here to stay. For those individuals still experiencing the wake of political attack ads, it is possible that certain statements made during a highly contentious political season could be legally redressable. This may even be true for private persons caught in the maelstrom of two candidate’s political attacks.
In Arizona, a private person suing for defamation must show that the accused (1) published a false and defamatory statement about the person, (2) knew the false and defamatory nature of the statement, and (3) acted in reckless disregard of the falsity of statement or negligently failed to ascertain them. Additionally, the allegedly defamatory statement must “imply assertions of material fact that are provably false." In other words, statements that can be reasonably interpreted to communicate an opinion are not legally redressable under Arizona’s defamation standard. Other states have similar standards.
Generally, speech that touches on matters of public concern is highly protected, especially where restricting such speech could have a chilling effect on future speech. Campaign speech is considered the epitome of speech regarding matters of public concern because it is the core of our political democracy. For this reason, it is highly protected and the First Amendment limits defamation actions to protect the “uninhibited, robust, and wide-open…and sometimes unpleasantly sharp attacks on government and public officials.”
Despite the categorical protection that political speech enjoys, there are still limits to this speech. For instance, if a person makes a statement with actual malice (i.e., the statement is made with knowing or reckless disregard for the truth of the matter) then that statement may fall outside the protections of the First Amendment.
Some factors that weigh in favor of protecting speech include:
- the speech is substantially true;
- the statement is more opinion than fact;
- the context of the statement lends to it being interpreted as opinion;
- and the statement is not provably true or false.
Although these factors are helpful in supporting an argument against defamation, they are highly fact intensive and can require nuanced arguments to successfully defeat a defamation claim.
Recently, the Arizona Court of Appeals considered a defamation suit involving political speech. In Rogers v. Mroz, Pamela Young, owner of Models Plus International, filed a defamation suit against Wendy Rogers, a congressional political candidate. Young herself was not involved in the political process, but her employee, Steve Smith was running opposite Rogers.
Young sued Rogers for defamation arguing that some of her political attack ads expressly and impliedly defamed her business. Specifically, Young challenged two of Rogers’ political ads (a radio ad and a campaign blog post) that called into question the family-man character of Smith by associating his employer with “websites linked to sex trafficking.” Although the radio ad was more general, the campaign blog post cited to an ABC News article as a source of this information.
Although Young was successful at the trial court, the Arizona Court of Appeals reversed course and held that Rogers’ political ads were not defamatory. In its analysis, the court highlighted Arizona’s robust free speech protections for matters of public concern, especially in the campaign setting.
Radio Ad. The court first held that the radio ad was not expressly or impliedly defamatory. The court reasoned that, based on the evidentiary record, the factual statements made in the radio ad were substantially true. The court further reasoned that the statements were not implied defamation because campaign ads feature “mixed statements of fact and opinion” and that opinion statements are afforded almost unfettered discretion. Given the context, tone, and substance of the radio ad—“an overtly political radio ad, deliberately framed to secure votes in a heated primary campaign race and plainly aimed at an election opponent”—the Court found that listeners would not reasonably interpret the ad as “an accusation of criminal conduct.”
Campaign Blog. The court also held that the campaign blog was not defamatory. Namely, because Rogers cited the source of the challenged statement, an ABC news article, Rogers had a complete defense to implied defamation. Young argued that Rogers recklessly disregarded the truth by not carefully investigating the ABC article linking Models Plus to websites that had been used for sex trafficking. The Court dismissed this argument, reasoning that the ABC news article “accurately reported” the challenged information. Despite Young’s attempt to protect her business’ reputation, the Court explained that the political ad was directed at Smith and his reputation, and that these matters—including his employment—were squarely matters of public concern: “For good or ill, Smith and his business or occupation are inseparable to voters who are understandably interested in a candidate’s moral fiber. And future candidates should not avoid the topic for fear of incurring civil tort damages.”
Although political discourse is essential to the democratic process and, as demonstrated by Rogers, courts continue to apply a high bar for proving defamation, especially when challenged statements are part of political ad campaigns. Potential litigants should also consider the impact of Arizona’s Anti-SLAAP law, which provides additional safeguards to speech made during election cycles.
Where an individual makes statements with actual malice, challengers may be able to overcome the generally high standard and restore their reputation. Although the Court’s opinion in Rogers provides political candidates with latitude in crafting the content of their political attack ads, political candidates, agents, vendors, and media distribution outlets should carefully consider whether they have completed the necessary due diligence to support their negative opinions, even if the speech includes opinion statements regarding matters of public concern.
Footnotes:
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Rogers v. Mroz, No. 1 CA-SA 19-0262, 2020 WL 7223312 (Ariz. Ct. App. Dec. 8, 2020). On January 7, 2021, Young filed a petition for special action with the Arizona Supreme Court appealing the court of appeals’ decision. As of this article’s publication date, the Arizona Supreme Court had not granted or denied special action jurisdiction.
