Rogers v. Hon Mroz ( 2020 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
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.
No. 1 CA-SA 19-0262
FILED 12-8-2020
Petition for Special Action from the Superior Court in Maricopa County
No. CV2018-013114
The Honorable Rosa Mroz, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED;
REVERSED
COUNSEL
Greenberg Traurig, LLP, Phoenix
By E. Jeffrey Walsh, Dominic E. Draye, Robert A. Hill
Counsel for Petitioners
Tiffany & Bosco, PA, Phoenix
By William M. Fischbach, III, Amy D. Sells, Marcos A. Tapia
Counsel for Real Parties in Interest
ROGERS, et al. v. HON. MROZ, et al.
Opinion of the Court
OPINION
Presiding Judge David D. Weinzweig delivered the opinion of the Court, in
which Judge David B. Gass joined. Judge Kent E. Cattani dissented.
W E I N Z W E I G, Judge:
¶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.
FACTS AND PROCEDURAL BACKGROUND1
I. Steve Smith: The Talent Agent
¶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
1 We recount the evidence in the light most favorable to Young, the non-
movant at summary judgment. Phoenix Baptist Hosp. & Med. Ctr., Inc. v.
Aiken, 179 Ariz. 289, 293 (App. 1994).
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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.
2 The article is available at https://abc17news.com/news/modeling-
website-linked-to-disappearances-rape-and-human-trafficking/20037496
(last visited on Oct. 10, 2020).
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Opinion of the Court
II. Steve Smith: The Candidate
¶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.
A. 2018 Congressional Race
¶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:
Tom O’Halleran is a dangerous leftist and ally of Nancy Pelosi
and the open borders lobby, but he’ll win again if we run
Steve Smith for Congress. Smith is a slimy character whose
modeling agency specializes in underage girls and advertises on
websites linked to sex trafficking. Smith opposed Trump, never
endorsed Trump against Clinton and ridiculed our much
needed border wall.
Who’ll beat O’Halleran? Wendy Rogers. Wendy Rogers
strongly supports President Trump and the President’s
conservative agenda. Wendy Rogers is a decorated Air Force
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pilot, small business owner, and major supporter of President
Trump’s border wall. Slimy Steve Smith can’t beat O’Halleran
and the anti-Trump left. Only Wendy Rogers will.
Wendy Rogers for Congress. Conservative, Republican,
standing with President Trump, standing with us. I’m
Wendy Rogers and I approve this message.
¶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:
¶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.
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B. This Lawsuit
¶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 defamation, [Rogers] did not make the statements with
requisite constitutional ‘actual malice.’”
¶17 Young countered that summary judgment was improper
because Young was not a public figure and actual malice was unnecessary.
Young also clarified which statements in the above campaign ads
supported her defamation and false light claims, describing their implied
defamatory meaning as follows:
• Implied defamation. “By asserting that The Young Agency
advertised on a website ‘linked to sex trafficking’ or ‘involved in
human trafficking,’ Rogers insinuated that The Young Agency aided
or was complicit in those crimes [because] ‘[a]dvertising’ on
something is often seen as ‘support’ of something.”
• Defamatory meaning. Young argued the radio ad was “capable
bearing the defamatory meaning . . . that The Young Agency was
purportedly complicit in sexual misconduct with ‘underage girls’
and aided, or was complicit, in ‘sex-trafficking,’” adding that “[t]he
intent and meaning of the [radio] message [was] clear. Steve Smith
is a slimy character. Why? Because his modeling agency, The Young
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Agency, (1) ‘specializes in underage girls’ and (2) ‘advertises on
websites linked to sex trafficking’ or ‘involved in sex trafficking.’”
¶18 The superior court denied Rogers’ motion for summary
judgment in a four-sentence minute entry without oral argument,
explaining: “The Court agrees with Plaintiffs’ arguments.” Rogers
petitioned this court for special action relief to reverse the superior court’s
denial of summary judgment.3
SPECIAL ACTION JURISDICTION
¶19 Special action jurisdiction is rarely appropriate to review the
denial of summary judgment, Scottsdale Pub. Inc. v. Superior Ct., 159 Ariz.
72, 74 (App. 1988), but we may accept jurisdiction “when a suit raises
serious First Amendment concerns,” threatens to chill protected speech and
may be resolved as a matter of law, Citizen Publ’g Co. v. Miller, 210 Ariz. 513,
516, ¶¶ 8-9 (2005).
¶20 Rogers argues we should accept special action jurisdiction
because Young’s defamation claim, if allowed past summary judgment,
would chill future politicians from introducing an opponent’s occupation
or business practices into future elections, fearing the campaign criticism
might inferentially concern the opponent’s employer and lead to personal
civil liability. Young counters that special action jurisdiction is not
warranted because her claims do not concern the First Amendment’s
freedom of press.
¶21 We accept special action jurisdiction, which is appropriate
here for the same reasons discussed in our freedom of press jurisprudence.
See, e.g., Miller, 210 Ariz. at 516, ¶ 8. After all, freedom of speech under the
First Amendment “has its fullest and most urgent application” in
“campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272
(1971). And the First Amendment affords no greater protection to the
institutional press. Obsidian Fin. Group, LLC v. Cox, 740 F.3d 1284, 1291 (9th
Cir. 2014) (“[E]very other circuit to consider the issue has held that the First
Amendment defamation rules in Sullivan and its progeny apply equally to
the institutional press and individual speakers.”).
3 Rogers also filed an Emergency Motion to Stay Discovery of Their
Finances Pending Resolution of Petition for Special Action on December 23,
2019, which is denied as moot.
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STANDARD OF REVIEW
¶22 We review de novo the superior court’s denial of summary
judgment on the record presented to ensure the court has not made a
“forbidden intrusion on the field of free expression.” Scottsdale Pub., 159
Ariz. at 82 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).
¶23 Summary judgment is appropriate when “there is no genuine
issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law,” Ariz. R. Civ. P. 56(c)(1), and should be
granted “if the facts produced in support of the claim or defense have so
little probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense,” Orme Sch. v. Reeves, 166 Ariz. 301, 309
(1990).
DISCUSSION
I. State Defamation Law and the First Amendment
¶24 A private person suing for defamation must prove a
defendant (1) published a false and defamatory statement concerning the
person, (2) knew the statement was false and defamed the other, and (3)
acted in reckless disregard of these matters or negligently failed to ascertain
them. Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 (1977) (citing
Restatement (Second) of Torts § 580B (1975); Reynolds v. Reynolds, 231 Ariz.
313, 317, ¶ 8 (App. 2013) (quoting Dube v. Likins, 216 Ariz. 406, 417, ¶ 35
(App. 2007)). The “publication must reasonably appear to state or imply
assertions of material fact that are provably false.” Yetman v. English, 168
Ariz. 71, 76 (1991).4
¶25 The First Amendment limits state law defamation actions
with an organic and “profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open, and
4 We assume without deciding that Young and the Agency are private
persons for defamation purposes. Rogers argues that Young is a limited
purpose “public figure” who must prove actual malice because anything
less would sanction “an attempted end-run around the Constitution,”
empowering a candidate’s friends and employers to easily accomplish
second-hand what the candidate manifestly could not. We acknowledge
the argument and concern but need not reach the issue because Young did
not meet the summary judgment standard for non-public figures on issues
of public concern.
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[might] include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.” Sullivan, 376 U.S. at 270; accord
Knievel v. ESPN, 393 F.3d 1068, 1075 (9th Cir. 2005) (warning that “states
tread perilously close to the limits of their authority” when “enforcing laws
that impose liability for mere speech, a right explicitly guaranteed to the
people in the United States Constitution”). Of “fundamental importance
[under the First Amendment is] the free flow of ideas and opinions on
matters of public interest and concern,” Hustler Mag., Inc. v. Falwell, 485 U.S.
46, 50 (1988), which form “the essence of self-government,” Garrison v. La.,
379 U.S. 64, 74-75 (1964), implicating the highest of “First Amendment
values,” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1980).
A. First Amendment Protections for Speech on Matters of
Public Concern
¶26 “[S]ignificant constitutional protections” are particularly
warranted when private persons sue for defamation arising from speech of
public interest and concern. Milkovich v. Lorain J. Co., 497 U.S. 1, 16 (1990).
Milkovich outlined four relevant “protections” against First Amendment
concerns.
¶27 First, an appellate court must “independent[ly] examin[e]”
the entire record to ensure a “judgment does not constitute a forbidden
intrusion on the field of free expression.” Bose Corp. v. Consumers Union, Inc.,
466 U.S. 485, 499 (1984); accord Yetman, 168 Ariz. at 79. “Given the rigorous
scrutiny required by the first amendment,” courts must “carefully examine
every alleged defamatory statement and rigorously apply the Milkovich
standards to ensure that first amendment concerns are protected.” Yetman,
168 Ariz. at 79. We have done so here.
¶28 Second, the plaintiff must affirmatively prove the falsity of an
alleged defamatory statement. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767,
776-77 (1986); see also Miller, 210 Ariz. at 517 (2005) (“When speech is about
a matter of public concern, state tort law alone cannot place the speech
outside the protection of the First Amendment.”). Although this
requirement “will insulate from liability some speech that is [unprovably]
false,” the burden is justified in ensuring speakers can address matters of
public concern without “fear that liability will unjustifiably result.” Hepps,
475 U.S. at 777-78.
¶29 Third, the plaintiff must prove that the alleged defamatory
statement asserts or implies an objective, verifiable defamatory fact.
Milkovich, 497 U.S. at 20. A statement is not actionable when the speaker
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expresses a subjective view, an interpretation, a theory, conjecture or
surmise. Id. at 17-21.
¶30 Fourth, a private person may not recover punitive damages
“on less than a showing of [actual] malice” for speech on matters of public
concern. Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974); accord Scottsdale
Pub. Co., 159 Ariz. at 82.
¶31 Arizona courts have applied another coat of “constitutional
protection” by exacting a “higher burden” from defamation plaintiffs to
defeat a defense motion for summary judgment. Sign Here Petitions LLC v.
Chavez, 243 Ariz. 99, 104, ¶ 15 (App. 2017). A plaintiff must present
evidence in the summary judgment record “sufficient to establish a prima
facie [defamation] case with convincing clarity.” Id. This requirement “is
rooted in the notion that the expense of defending a meritless defamation
case could have a chilling effect on First Amendment rights.” Read v.
Phoenix Newspapers, Inc., 169 Ariz. 353, 356 (1991). Clear and convincing
evidence requires “the thing to be proved is highly probable or reasonably
certain.” Gila River Indian Cmty. v. Dep’t of Child Safety, 238 Ariz. 531, 537
(App. 2015).
B. Campaign Speech is of Public Concern
¶32 At issue here are two statements of a candidate aimed
squarely at her political opponent’s moral fitness. Campaign speech
represents the purest form of speech on public concern. Brown v. Hartlage,
456 U.S. 45, 53 (1982) (“The free exchange of ideas provides special vitality
to the process traditionally at the heart of American constitutional
democracy—the political campaign.”).
¶33 The First Amendment safeguards an open, unvarnished clash
of ideas and narratives from candidates of all stripes for consumption by
voters when deciding which candidate most resembles or embodies their
beliefs and ideals. Secrist v. Harkin, 874 F.2d 1244, 1249 (8th Cir. 1989)
(“While political commentators often decry the ‘low level’ of campaign
tactics or rhetoric, the debate which accompanies public examination of
candidates for public office lies at the very heart of the First Amendment
and is essential to our democratic form of government.”).5 And even
5 The dissent contends the majority’s opinion “essentially creates a
limitless license to lie,” but, from the First Amendment’s perspective, the
dissent creates an essentially limitless license to litigate the defamatory
implications of unmistakable electioneering material, notwithstanding the
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among campaign material, “debate on the qualifications of candidates” is
particularly “integral to the operation of the system of government
established by our Constitution.” Eu v. San Francisco Cnty. Democratic Cent.
Comm., 489 U.S. 214, 223 (1989). The U.S. Supreme Court has stressed the
prodigious benefits derived from “discuss[ions about the character and
qualifications of candidates” for political office:
The importance to the state and to society of such discussions
is so vast, and the advantages derived are so great, that they
more than counterbalance the inconvenience of private
persons whose conduct may be involved, and occasional
injury to the reputations of individuals must yield to the
public welfare, although at times such injury may be great.
Sullivan, 376 U.S. at 281 (quoting Coleman v. MacLennan, 98 P. 281, 286 (Kan.
1908)).
C. Two Statements
¶34 With that constitutional backdrop and direction, we now
examine the challenged statements and the record to determine whether
Young met her burden to defeat summary judgment. Put differently, we
must decide whether the record contained enough evidence at summary
judgment for reasonable persons to find, by clear and convincing evidence,
that the “statement[s] [are] capable of bearing a defamatory meaning . . .
under all the circumstances,” Yetman, 168 Ariz. at 79, “from the standpoint
of the average reader” and accounting for “the reasonable expectations of
the audience.” Knievel, 393 F.3d 1073.
1. Radio ad
“Smith is a slimy character whose modeling agency specializes in
underage girls and advertises on websites linked to sex trafficking.”
¶35 Young contends this statement contained express falsities and
implied she and the Agency either support or commit sex crimes. The
record at summary judgment does not include clear and convincing
evidence that reasonable listeners could hear and understand the statement
to assert an actionable express or implied defamatory falsehood.
constitutional risk of chilling present and future candidates from
challenging the business or occupation of their political opponents. Infra ¶
78.
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a. Express defamation
¶36 Young claims the statement expressly defamed her and the
Agency because the Agency does not (1) “specialize in underage girls,” and
either did not (2) “advertise on websites linked to sex trafficking,” or (3) did
not advertise on such “‘websites’ in the plural.” Rogers counters that the
statement is substantially true or could not be reasonably understood to
express an objective statement of verifiable defamatory fact. We agree with
Rogers on this summary judgment record.6
¶37 Substantial truth is recognized as a complete defense to
defamation because “in defamation law, as in life, determinations of fact
and fiction are not zero-sum,” Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014),
and “[s]light inaccuracies will not prevent a statement from being true in
substance, as long as the ‘gist’ or ‘sting’ of the publication is justified,” Read,
169 Ariz. at 355-57. Courts decide the issue of substantial truth on
undisputed facts. Id.¶38 “Smith[’s] . . . modeling agency specialize[s] in underage girls.”
This statement is substantially true based on the summary judgment
record. Young and the Agency had substantial experience and meaningful
expertise in the field of child modeling, not just modeling in general. About
three years before the election, Young wrote an instructional book on how
to succeed in child modeling. Pamela Young, How to Become a Kid Model:
Secrets & Tips to Skyrocket Your Career! (2015). Child models comprised
around 50 percent of the Agency’s models. And the Agency had a
dedicated “Youth Section” on its website for prospective clients “to see the
photographs of children that they might want to hire as a model.”
¶39 The dictionary confirms our conclusion. “Specialize” is
defined as “concentrat[ing] one’s efforts in a special activity, field, or
practice,” “pursu[ing] a special activity, occupation, or field of study,” and
“provid[ing] something in particular or hav[ing] something as a focus: The
6 Parenthetically, we acknowledge our discomfort here as the state-
sponsored election censor and remain mindful of the constitutional
consequences when judges or juries are asked to parse unmistakable
campaign ads for implied defamatory meaning. Voters are entrusted to sift
fact from fiction and cast political judgment at the ballot box. Thomas v.
Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring) (“The very purpose
of the First Amendment is to foreclose public authority from assuming a
guardianship of the public mind [and] every person must be his own
watchman for truth, because the forefathers did not trust any government
to separate the true from the false for us.’”).
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shop specializes in mountain-climbing gear.” Specialize, Merriam-Webster
Online, www.merriam-webster.com/dictionary (last visited Nov. 3, 2020);
American Heritage Dictionary (5th ed. 2020). Meanwhile, “underage” is
defined as “less than mature or legal age,” “done by or involving underage
persons,” and “[b]elow the customary or legal age, as for drinking or
consenting to sexual relations.” Underage, Merriam-Webster Online;
American Heritage Dictionary (5th ed. 2020).
¶40 “Smith[’s] . . . modeling agency . . . advertise[s] on websites linked
to sex trafficking.” The record was undisputed that Steve Smith created a
professional “Modeling Agent” profile on Model Mayhem, featuring the
Agency’s name and logo, because Model Mayhem was “an industry place
where all folks in the industry would go if they needed talent.” That is
advertising and this statement was substantially true. See Advertisement,
Black’s Law Dictionary (11th ed. 2019) (defining “advertisement” as an item
published “with the intention of attracting clients”). As for the number of
websites, the sting between fact and alleged defamatory fiction is not
appreciably different whether Young advertised on one or more websites
“linked to sex trafficking.” Read, 169 Ariz. at 355.
b. Implied defamation
¶41 Even if each point is substantially true, Young contends the
facts are configured to imply an actual, unstated defamatory statement of
fact—that Young and the Agency “aided or [were] complicit in” sex
trafficking. Defamation by implication challenges the publication of facts
which, taken together, reasonably imply “undisclosed defamatory facts.”
MacConnell v. Mitten, 131 Ariz. 22, 25 (1981). Implied defamation claims
necessarily rely on nuance and unstated inferences to reach a conclusion
neither written nor spoken—juxtaposing facts to create a defamatory
implication. See Manzari v. Associated Newspapers Ltd., 830 F.3d 881, 889 (9th
Cir. 2016) (“If the defendant juxtaposes a series of facts so as to imply a
defamatory connection between them, or otherwise creates a defamatory
implication, he may be held responsible for the defamatory implication,
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even though the particular facts are correct.”) (quoting Price v. Stossel, 620
F.3d 992, 1003 (9th Cir. 2010)).7
¶42 Young first claims an implied defamatory meaning from the
substantially true statement that Smith’s “modeling agency” advertised on
Model Mayhem. Young argues:
By asserting that The Young Agency advertised on a website
“linked to sex trafficking” or “involved in human trafficking,”
Rogers insinuated that The Young Agency aided or was
complicit in those crimes. “Advertising” on something is
often seen as “support” of something. For example, if the host
of a popular television show utters a highly offensive remark,
advertisers are often the first to jump ship to avoid any
appearance they endorse or support that remark.
From there, Young contends that listeners may reasonably interpret the
statement as implying an objective, verifiable defamatory fact—namely,
that the unnamed Agency approved or committed child sex crimes—all
based on the Agency’s decision to advertise on Model Mayhem.
¶43 Summary judgment should have been granted because the
record contained no evidence of this implication. Young presented no
evidence, much less clear and convincing evidence, showing that a
reasonable factfinder could hear the statement that Young advertised on
Model Mayhem as “akin to an accusation of criminal conduct” against
Young. Harkin, 874 F.2d at 1251. The sort of evidence that Young might
have introduced, but didn’t, includes testimony and opinions of qualified
lay and expert witnesses. See, e.g., Yetman, 168 Ariz. at 80 (describing “most
important” evidence at defamation trial as the testimony of an objective,
informed news reporter who heard the remark as a defamatory accusation
7 An inherent tension exists between the First Amendment and implied
defamation claims. To account for the tension, the Ninth Circuit has
required plaintiffs to affirmatively prove a defendant intended or endorsed
the defamatory implication. See, e.g., Dodds v. Am. Broad. Co., 145 F.3d 1053,
1064 (9th Cir. 1998); see also White v. Fraternal Order of Police, 909 F.2d 512,
519 (D.C. Cir. 1990) (“[C]ourts must be vigilant” when “entertaining claims
of defamation by implication . . . not to allow an implied defamatory
meaning to be manufactured from words not reasonably capable of
sustaining such meaning.”). Arizona courts have not yet required this
additional hurdle, even if our supreme court favorably cited White in
Yetman. 168 Ariz. at 79. We leave the issue for our supreme court to decide
in the first instance.
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Opinion of the Court
and expert witness opinions “that the remark was susceptible to the
interpretation”).
i. Opinion and argument
¶44 Beyond that, the statements are absolutely protected as
opinion and argument, rather than fact, under the First Amendment.
AMCOR Inv. Corp. v. Cox Ariz. Publ’ns, 158 Ariz. 566, 568-69 (App. 1988)
(“[W]e might well use ‘argument’ as a synonym for ‘opinion’ since we deal
with the question whether the words complained of were part of an attempt
by the defendants to persuade their readers that a governmental act by the
city council was wrong.”).
¶45 At most, the campaign ads are mixed statements of fact and
opinion. Arizona courts have recognized that “public commentary is
almost limitless in its richness and variety” and “frequently intermix[es]
statements of fact with evaluations, conclusions, and argumentation.” Id.
at 569. As a result, we have rejected “any attempt simply to distinguish
linguistically between fact and opinion” as “too mechanical,” and found
“no workable bright-line distinction between fact and opinion.” Id. at 569,
571. “Any standard for determining whether a particular piece of
commentary is actionable must . . . leave considerable room for ‘rhetorical
hyperbole,’” and courts “must always be informed by acute awareness of
the public’s need, reflected in the Constitution, for free debate on public
issues.” Id. at 569, 572. “The first amendment prohibits efforts to ensure
‘laboratory conditions’ in politics; speech rather than damages is the right
response to distorted presentations and overblown rhetoric.” Stevens v.
Tillman, 855 F.2d 394, 404 (7th Cir. 1988).
¶46 Since Milkovich, the Ninth Circuit has used a three-factor
balancing test to determine whether reasonable persons could hear a
statement to imply an assertion of objective fact rather than opinion or
argument. Obsidian, 740 F.3d at 1293-94. The test considers (1) whether the
general tenor of the entire work negates the impression that the defendant
was asserting an objective fact; (2) whether the defendant used figurative
or hyperbolic language that negates that impression; and (3) whether the
statement in question is susceptible of being proved true or false. Id. (citing
Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990)). We consider
each factor.
• Whether the general tenor of the entire work negates the
impression that defendant was asserting an objective fact.
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Opinion of the Court
¶47 Arizona courts afford “great weight to the context in which
the statements are made,” AMCOR, 158 Ariz. at 570-71, and the “impression
created by the words used as well as the general tenor of the expression,
from the point of view of the reasonable person,” Yetman, 168 Ariz. at 79.
“[F]ree debate requires an analysis not only of the words used but also the
context in which they appear [and] the entire circumstances surrounding
the publication.” AMCOR, 158 Ariz. at 569. When excising protected
opinion from unprotected fact, courts must consider “the wider social and
political setting of the publication” and the publication’s purpose and
“intended audience.” Id. The “[b]roader social context can include any
particular customs or conventions that could signal to readers or listeners
that what is being read or heard is likely to be opinion, not fact.” Chau, 771
F.3d at 129 (internal quotation marks omitted).
¶48 The words challenged here were uttered in an overtly
political radio ad, deliberately framed to secure votes in a heated primary
campaign race and plainly aimed at an election opponent. “It is difficult to
imagine a public context which would point more strongly toward
‘opinion’ than [a federal congressional campaign].” Harkin, 874 F.2d at
1249. Campaign ads are neither created nor consumed for educational
value or balanced perspective, and reasonable listeners of such content
“expect to hear a great deal of opinion.” Id. “[A] campaign press release is
not a research monograph; such a release is at least as likely to signal
political opinion as a newspaper editorial or political cartoon.” Id.; accord
Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life
Activists, 244 F.3d 1007, 1019 (9th Cir. 2001) (acknowledging the “well-
recognized principle that political statements are inherently prone to
exaggeration and hyperbole”). And voters are desensitized to the seasonal
swarm of accusations and mind-numbing enmity occasioned by elections.
See Koch v. Goldway, 817 F.2d 507, 509 (9th Cir. 1987) (noting that in “a heated
political debate,” “certain remarks are necessarily understood as ridicule or
vituperation, or both, but not as descriptive of factual matters”); Lynch v.
New Jersey Educ. Ass’n, 735 A.2d 1129, 1136 (N.J. 1999) (“Readers know that
statements by one side in a political contest are often exaggerated,
emotional, and even misleading.”).
¶49 In tone and substance, this radio ad resembles campaign
mailers and commercials that biennially flood our airwaves and overwhelm
our mailboxes—negating any reasonable impression that the attack ad
conveyed or asserted precise and objective facts. See Obsidian, 740 F.3d at
1294. The announcer’s words, accompanied by “creepy audio effects,”
represented an unadorned, slanted pitch for votes. The ad’s political
purpose was overt and transparent. It reflects a hard punch thrown during
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Opinion of the Court
a primary brawl, targeting a political opponent and touting a personal
narrative, leaving no reasonable listener with the parting impression that
the unnamed “modeling agency” has in fact supported or committed sex
crimes. See Desert Sun Publ’g v. Superior Court, 97 Cal. App. 3d 49, 53 (1979)
(stressing the public’s tendency to view campaign material as an attack on
“loyalties” and “motives” of a political rival rather than an imputation of
criminal conduct).
• Whether the defendant used figurative or hyperbolic language
that negates the impression of objective fact.
¶50 In determining whether a statement, “though appearing to be
factual, must be held to be within the First Amendment’s protection, we
consider the nature of the assertions and their relationship with the rest of
the article,” including the publication’s internal structure, the challenged
statement’s place in the publication, and “the wider social and political
setting of the publication.” AMCOR, 158 Ariz. at 571.
¶51 The publication here was a campaign radio spot—comprised
of 133 words and roughly 11 statements, including eight statements of pure
political opinion,8 two statements of pure fact,9 and the challenged
statement, which mixes fact and opinion. As pure opinion, eight of the
statements are absolutely protected under the First Amendment. And
when combined, all 11 statements convey a definite political opinion and
unvarnished plea for Republican primary voters. “We would be
unwarranted in parsing the [full publication] so as to treat these statements
differently from the rest of the [publication].” Id.; see also Robert D. Sack,
Sack on Defamation § 4:3:1[A], [B] (“Potentially defamatory statements in the
guise of statements of fact uttered during a bitter political debate are
particularly likely to be understood as rhetorical opinion.”).
8 Eight statements of pure opinion: (1) “Tom O’Halleran is a dangerous
leftist and ally of Nancy Pelosi and the open borders lobby,” (2) O’Halleran
will “win again if we run Steve Smith for Congress,” (3) “Smith is a slimy
character,” (4) Smith “ridiculed our much needed border wall,” (5) “Slimy
Steve Smith can’t beat O’Halleran and the anti-Trump left,” (6) “Only
Wendy Rogers will” win the general election, (7) “Wendy Rogers strongly
supports President Trump and the President’s conservative agenda,” and
(8) Rogers “stand[s] with President Trump, standing with us.”
9 Two statements of pure fact: (1) “Wendy Rogers is a decorated Air Force
pilot [and] small business owner,” and (2) “Smith opposed Trump, never
endorsed Trump against Clinton.”
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¶52 Reasonable 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,
even if laced with factual grains. See, e.g., Moats v. Republican Party of Neb.,
796 N.W.2d 584, 596 (Neb. 2011) (recognizing that “political campaign
brochure” is “written to persuade voters to vote against [an opponent]
through the use of both rhetoric and hyperbole” and “no reasonable reader
would conclude otherwise”). The harsh language in the radio ad dispels
any reasonable expectation of objective facts. Obsidian, 740 F.3d at 1294.
¶53 The announcer’s passing reference to an unnamed “modeling
agency” is sandwiched between pointed barbs at political opponents and
praise for political allies, sprinkled with references to hot-button
immigration issues. Not unexpectedly, the announcer then pivots to
Rogers, touting her partisan and military bona fides and promising she will
win the general election if nominated. Simply put, one purported
“verifiable” statement of fact in a sea of pure opinion “does not justify
ignoring the essential nature of the expression of which these statements
were a part.” AMCOR, 158 Ariz. at 571. And the fundamental “need for
free and open debate on public issues and governmental action should not
be chilled by rules requiring courts artificially to single out statements of
fact and treat them in a vacuum, unrelated to the argument of which they
are a part.” Id.¶54 A final point. In her deposition, Young recounted her
accountant’s reaction to the campaign ad. The accountant called Young in
disbelief, emphasizing it “can’t be” and the “things we heard on television,
we couldn’t believe.” But this reflexive disbelief harms rather than helps
Young’s defamation claim.
• Whether the statement in question is susceptible of being
proved true or false.
¶55 Young contends the phrase “specialize[s] in underage girls”
represents a precise, specific and verifiable accusation of criminal activity.
We are not persuaded. This statement lacks the specificity and precision to
be proven objectively true or false. “Under the aegis of the First
Amendment, a particular word or phrase ordinarily cannot be defamatory
unless in a given context it reasonably can be understood as having an
easily ascertainable and objectively verifiable meaning.” Levinsky’s, 127
F.3d at 129; accord Harkin, 874 F.2d at 1251 (“[W]e find that in context the
challenged statements concerning fundraising are not so precise, specific,
or verifiable that they can be equated . . . as akin to an accusation of criminal
conduct.”).
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¶56 This radio ad delivered a plain accusation often leveled by
opposing candidates in elections—one candidate denouncing a political
opponent’s moral compass and partisan bona fides. The ad is plainly aimed
at Steve Smith; it never even mentions Young or the Agency. AMCOR, 158
Ariz. at 570-71 (“There was no allegation or even an implication that
AMCOR was guilty of illegal or criminal conduct. . . . [I]t is important here
that the primary target of Jennings’ ire was the city council, not AMCOR.”).
¶57 We recognize, of course, that the words “specialize in
underage girls” could be interpreted to imply criminal misconduct. At a
minimum, however, the terms “specialize” and “underage” are vague.
“The vaguer a term, or the more meanings it reasonably can convey, the
less likely it is to be actionable.” Levinsky’s, 127 F.3d at 129. We cannot
ignore, for instance, the reasonable and less nefarious meaning that would
neatly fit into a heated political campaign, especially this one. According to
the record, Rogers wanted voters to conclude that Steve Smith was not the
family values candidate he claimed and she hammered Smith’s occupation
to make that point—that Smith monetized innocence and objectified kids
for pure commercial ends. Under that constitutionally protected
interpretation, Rogers did not accuse Smith or Young of criminal enterprise,
but instead accused Smith of using kids for material gain, partnering with
dictatorial and supercilious stage parents who force their toddlers to
compete in regional child modeling pageants. See Knievel, 393 F.3d at 1075(“[N]ot all statements that could be interpreted in the abstract as criminal
accusations are defamatory” when placed in context.).
¶58 We also recognize that the term “underage girls,” when
searched on Westlaw, is likely to return criminal cases in which the term
has a criminal meaning. The dissent proves the point with a string citation
of child pornography cases. Infra ¶ 74. But a Westlaw search is unlike the
heated political campaign described in this record, which shows that
Rogers seized on Smith’s day job as a central campaign issue and theme,
presenting it as “proof” that Smith lacked family values. Manzari, 830 F.3d
at 890 (“[A] defamatory meaning must be found, if at all, in a reading of the
publication as a whole.”).10
10 The dissent claims that Rogers conceded the defamatory implication of
“underage girls” when she agreed in her deposition that “Wendy Rogers
really likes underage boys” is “seedy sounding.” Infra ¶ 76. We see no
concession. An adult who “really likes underage boys” is plainly unlike a
“modeling agency specializ[ing] in underage girls.” As untethered to
business, the former is intuitively disconcerting; the latter may capture
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Opinion of the Court
¶59 And again, a statement is not actionable simply because it
includes or purports to include a patina of fact. “[M]erely because a
commentary contains both opinion and alleged fact does not result in the
article being actionable in tort.” AMCOR, 158 Ariz. at 571. Indeed, “[i]t is
the rare commentary that will be totally devoid of supporting ‘facts’ or
premises.” Id. A defamation plaintiff must do more to defeat summary
judgment than conjure the possible defamatory meanings of adjective-noun
combinations. Courts need not wield a magnifying glass to extract implied
accusations of malfeasance embedded in campaign literature, ferreting
through factual statements to unearth defamatory meaning. Chapin, 993
F.2d at 1098 (“A magnifying glass is no aid to appreciating a Seurat, and the
pattern of a complex structure is often discernable only at some distance.”).
¶60 The record at summary judgment lacked evidence to show,
by clear and convincing evidence, that reasonable listeners could have
understood this political attack ad to actually and objectively imply a
precise and verifiable undisclosed fact—namely, that Young and the
Agency “were complicit in sexual misconduct with ‘underage girls’ and
aided or were complicit in sex trafficking.”
2. Campaign blog
“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.’”
¶61 Young also contends Rogers defamed her and the Agency in
this campaign blog statement, again by implication, because a reasonable
reader would infer that Young and the Agency supported or committed sex
crimes. This claim cannot survive summary judgment for at least two
reasons.
¶62 First, Rogers had a complete defense to implied defamation
under the First Amendment because the statement directed readers to the
source of her information. A publication that discloses the factual basis for
its negative conclusion “typically falls within the protection of the First
Amendment, even if it relies on faulty reasoning.” See Partington v. Bugliosi,
56 F.3d 1147, 1156 (9th Cir. 1995) (“The courts of appeals that have
considered defamation claims after Milkovich have consistently held that
when a speaker outlines the factual basis for his conclusion, his statement
Young’s expertise and well-earned reputation in the competitive world of
child models.
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Opinion of the Court
is protected by the First Amendment.”). Applied here, the underlined
words—”according to ABC News”—were hyperlinked to the campaign’s
source of information, the ABC News article about Model Mayhem’s
“dangerous history.” Supra at ¶¶ 5-6.
¶63 Young criticizes Rogers’ reliance on the ABC News article
because Rogers did not verify the content she relied on before posting it.
But the article accurately reported a lawsuit against Model Mayhem—with
quotes and attribution from sources (a model, photographer and detective)
who expressed their concerns about sexual predators lurking on the Model
Mayhem platform. Rogers had no reason to doubt the article’s accuracy.
Cf. St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (no reckless disregard
when no evidence of probable falsity, even without evidence of reputation
for veracity).
¶64 Second, we cannot ignore the blaring takeaway in bold, red
print: “Steve Smith is a FAKE and is NOT the pro-traditional family values
candidate that he claims to be!” The statement’s tenor and substance are
directed with laser focus at candidate Steve Smith—not Young or her
agency. Rogers shined a caustic, tendentious spotlight on her political
opponent’s moral compass and family-values narrative. See Masson v. New
Yorker Mag., Inc., 501 U.S. 496, 517 (1991) (“[W]ords and punctuation
express meaning. Meaning is the life of language.”).
¶65 Young counters that Smith’s day job is irrelevant because he
“kept his work at The Young Agency separate from his political activity,”
and the Agency never donated to or participated in Smith’s campaigns.
That misses the point. Smith worked full-time at the Agency for over a
decade before running for Congress—building a reputation and earning a
livelihood. Put bluntly, a candidate’s business is the people’s business—
standard fare and fair game in an election contest. Cf. Lewis v. NewsChannel
5 Network, L.P., 238 S.W.3d 270, 300 (Tenn. Ct. App. 2007) (“[T]o have the
presence of a private person shield a public official from reports about his
or her official misconduct would begin to rot the underlying foundation of
the freedoms of speech and of the press.”). For good or ill, Smith and his
business or occupation are inseparable to voters who are understandably
interested in a candidate’s moral fiber. Garrison, 379 U.S. at 77 (the public’s
rightful scope of investigation encompasses “anything which might touch
on [a candidate’s] fitness for office [including] dishonesty [and]
malfeasance”). And future candidates should not avoid the topic for fear
of incurring civil tort damages. Schiavone Const. Co. v. Time, Inc., 619 F.
Supp. 684, 705 (D.N.J. 1985) (discussion of federal nominee “could hardly
proceed without discussion of his ties” to plaintiff construction company).
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Opinion of the Court
¶66 The court sympathizes with Young, who has cultivated a
sterling reputation and who never pursued the political spotlight. But on
this record, summary judgment was required. The record lacks clear and
convincing evidence that reasonable persons heard the challenged half-
sentence about Smith’s personal advertising practices to imply that Young
and the Agency assist “sex trafficking” or support “sexual misconduct with
underage girls.” A creative defamation claim must not muffle debate or
impinge fundamental rights and processes. We recognize that political
speech is sometimes unpleasant if not unpalatable, but the importance of
free and uncensored debate overshadows the danger of misuse on this
record. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).
II. Punitive Damages: Actual Malice
¶67 For those and more reasons, the superior court should have
also granted summary judgment on the punitive damages claim and denied
Young’s motion to compel evidence of Rogers’ net worth. A defamation
claim for punitive damages requires clear and convincing evidence of
actual malice. Gertz, 418 U.S. at 349; Read, 169 Ariz. at 356. Actual malice
requires proof that the defendant acted “with knowledge that [the
statement] was false or with reckless disregard of whether it was false or
not.” Sullivan, 376 U.S. at 280. “The question whether the evidence in the
record in a defamation case is sufficient to support a finding of actual malice
is a question of law.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S.
657, 685 (1989).
¶68 Young’s evidence of actual malice at summary judgment
included the fact that (1) Rogers was motivated “to defame the Young
Agency” by “attack[ing] the character of her political enemy Smith,” and
that (2) “Rogers failed to ascertain” the status of litigation mentioned in the
ABC News article. But, even together, “motive” and “an extreme departure
from professional standards . . . cannot provide a sufficient basis for finding
actual malice.” Id. at 664-65.
III. False Light
¶69 The superior court should also have dismissed Young’s false
light invasion of privacy claim at summary judgment. A false light claim
requires actual malice. See Desert Palm Surgical Grp. v. Petta, 236 Ariz. 568,
580, ¶ 29 (App. 2015) (actual malice an element of false light invasion of
privacy). The record lacked such evidence.
CONCLUSION
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Opinion of the Court
¶70 We reverse the superior court and enter summary judgment
for Rogers.
C A T T A N I, J., dissenting:
¶71 The majority opines that no reasonable person could possibly
understand the statement that the Young Agency “specializes in underage
girls and advertises on websites linked to sex trafficking” to insinuate that
the Young Agency was complicit in child sex trafficking or similar
wrongful, even criminal conduct. But that appears to be precisely what was
insinuated. Because a reasonable person could understand the statement’s
clear and potentially defamatory implication, the superior court correctly
denied Rogers’s motion for summary judgment. Accordingly, I
respectfully dissent from this court’s opinion reversing that ruling.
¶72 As detailed by our supreme court in Yetman v. English, the
superior court is the initial gatekeeper in defamation cases, tasked with
deciding whether the statement at issue is capable of bearing a defamatory
meaning. 168 Ariz. 71, 78–79 (1991); see also Sign Here Petitions LLC v.
Chavez, 243 Ariz. 99, 105, ¶ 20 (App. 2017). In performing this duty, the
court must assess the literal words of the statement and “the impression
created by the words used as well as the general tenor of the expression,
from the point of view of the reasonable person,” considering the statement
under the circumstances in which it was made. Yetman, 168 Ariz. at 76(emphasis and citation omitted). “The key inquiry is whether the
challenged expression . . . would reasonably appear to state or imply
assertions of objective fact.” Id. (emphasis and citation omitted). If the court
determines that the statement is capable of bearing a defamatory meaning,
the jury, rather than the court, is the ultimate arbiter of “whether the
defamatory meaning of the statement was in fact conveyed.” Id. at 79. In
my view, the superior court here did precisely what Yetman directs: it
reasonably concluded that the statement in the radio ad was capable of
bearing a defamatory meaning and properly left the resolution of the case
to the jury.
¶73 The majority may be correct that the radio ad was not outright
false in stating that the Young Agency “specializes in underage girls and
advertises on websites linked to sex trafficking”: the Young Agency
employs female models who are under the age of majority, and it has
advertised on the Model Mayhem website, which, like other websites—
including Craigslist and Facebook—has apparently been used by bad actors
(unrelated to the website operators) who committed sexual offenses. But
the fact that Rogers’s statements may be technically correct does not
insulate her from potential liability for what she insinuated rather than said
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Cattani, J., dissenting
explicitly. See Phx. Newspapers, Inc. v. Church, 103 Ariz. 582, 587–88 (1968).
And there is little question that a jury could find Rogers’s juxtaposition of
“underage girls” and “sex trafficking” in the same sentence to insinuate that
the Young Agency was involved in highly questionable—if not illegal—
activities.
¶74 Rogers’s use of the term “underage girls” is particularly
telling. The term “underage” here is untethered to its ostensible context—
a model under the age of 18 is not “underage” for purposes of portraying a
child under the age of 18. Even the majority’s preferred interpretation—
that the term referred to the children of “dictatorial and supercilious stage
parents who force their toddlers to compete in regional child modeling
pageants,” see supra ¶ 57—is not really captured because the term includes
17-year-olds as well. But even assuming the term’s technical accuracy in
denoting individuals under the age of majority, its connotation is far less
innocent; in case law, for example, “underage girls” is used almost
exclusively in the context of sexual conduct with victims under the age of
consent. See, e.g., City of Los Angeles v. Patel, 576 U.S. 409, 436 (2015) (Scalia,
J., dissenting) (referring to “prostitution of underage girls”); State v. Burgess,
245 Ariz. 275, 278, ¶ 11 (App. 2018) (addressing child prostitution statute);
Mangan v. Mangan, 227 Ariz. 346, 349, ¶ 10 (App. 2011) (noting “illegal
pornography sites that appeared to depict violence against underage
girls”); State v. Fischer, 219 Ariz. 408, 416, ¶ 27 (App. 2008) (referencing
“underage girls” in the context of the crime of sexual conduct with a minor).
And nothing suggests a different context here.
¶75 Even Rogers herself seems to recognize the highly charged
nature of the term “underage girls.” Rogers’s reply in this special action
characterizes the radio ad as stating that “the Young Agency ‘specializes’
in representing minors.” (Emphasis added.) Had the ad actually said
“minors” rather than “underage girls,” Rogers’s assertion that the
statement was factual and relatively benign would be more persuasive. But
that is not what was said.
¶76 Rogers’s deposition testimony further underscores this point.
Responding to questioning, she agreed, for example, that she “generally
like[s] children,” both male and female. But when asked, “True or False,
Wendy Rogers really likes underage boys?” Rogers responded, “False”
because that phrasing has an “undesirable nuance” and is “seedy-
sounding.” A jury could likewise conclude that when Rogers broadcast an
ad characterizing the Young Agency’s specialty as “underage girls,” she
necessarily inserted, to use her own words, an “undesirable nuance” and
left the impression that the agency was “seedy.”
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Cattani, J., dissenting
¶77 And this “undesirable nuance” was compounded by the
immediately following reference to “advertis[ing] on websites linked to sex
trafficking.” Specializing in underage girls and linked to sex trafficking? A
reasonable person could easily understand the subtext as a statement that
the Young Agency was complicit in child sex trafficking or similar
wrongful, even criminal conduct. And the political nature of the ad does
not override that clear implication.
¶78 The majority has essentially held that, because the statement
appeared in a political attack ad in a “spirited, combative and sometimes
unpleasant” election campaign, no one could understand it as an assertion
of fact. See supra ¶¶ 9, 44–60. Setting aside the irony of concluding that the
statement and its obvious implication could not be understood as a
statement of provable fact while also finding that the statement is
substantially true, see supra ¶¶ 36–40, the majority’s position essentially
creates a limitless license to lie about someone not associated with any
political campaign as long as the lie is bookended by comments disparaging
the values held by one’s actual political opponent. But the political focus of
an ad could not possibly preclude a defamation claim, for example, based
on a demonstrably false statement that the candidate’s employer is a
convicted rapist, and in my view, the same reasoning applies here. See
Yetman, 168 Ariz. at 76 (requiring analysis not just of the “general tenor” of
the expression where a challenged statement appears, but also the literal
words and the impression created by those words). Thus, I agree with the
superior court that Young is entitled to present the case to a jury.
¶79 Citing Yetman, the majority suggests that Young’s claim was
essentially unprovable without “testimony and opinions of qualified lay
and expert witnesses.” See supra ¶ 43. Respectfully, and as in Yetman itself,
such testimony might be valuable trial evidence, but it is not necessary to
the court’s legal determination of “whether the challenged expression . . .
would reasonably appear to state or imply assertions of objective fact.”
Yetman, 168 Ariz. at 76 (emphasis and citation omitted). The majority cites
no authority for the proposition that a plaintiff must offer proof that
someone who heard or saw the statement actually did think it was
defamatory. As Yetman held, the issue on summary judgment is simply
whether the statement is “capable of bearing a defamatory meaning.” Id. at
79 (emphasis added). Moreover, Pamela Young described having the type
of evidence the majority suggests was missing: the modeling agency’s
accountant, for example, contacted her in disbelief at the radio ad’s
allegations. The majority ignores the accountant’s understanding of the
ad’s insinuation while focusing instead on the accountant’s disbelief, which
may reasonably be attributable to his familiarity with the Young Agency
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Cattani, J., dissenting
and not, as the majority suggests, to his supposed opinion that the
statements were per se unbelievable. See supra ¶ 54.
¶80 Finally, while acknowledging the standard set forth in
Yetman, the majority ignores Yetman’s holding. The court opined in that
case that neither side was entitled to judgment as a matter of law on a
defamation claim against a legislator who asked—in reference to a member
of a county Board of Supervisors—“What kind of communist do we have
up there that thinks it’s improper to protect your [property] interests?”
Yetman, 168 Ariz. at 73, 82. The Yetman court reasoned that while “the
comment, made in such a setting and in such a context, could easily be
interpreted as nothing more than rhetorical political invective or
hyperbole,” its words were nevertheless “sufficiently ambiguous that a
reasonable listener in that audience . . . might reasonably interpret the
words as a statement or implication of fact.” Id. at 79–80.
¶81 The same is true here. Perhaps the statement was simply
rhetorical hyperbole excoriating Steve Smith for his association with child
models and their “dictatorial and supercilious stage parents,” but the
majority itself acknowledges “that the words ‘specialize in underage girls’
could be interpreted to imply criminal misconduct.” See supra ¶ 57. And
that is precisely why Young is entitled to present the case to a jury. See
Yetman, 168 Ariz. at 79 (“There remains the category of cases involving
assertions to which reasonable people might clearly give conflicting
interpretations. In these cases, the question must be left to the jury.”).
¶82 If this matter goes to trial, Rogers will undoubtedly present
the arguments about context and attenuation advanced by the majority.
But on this record, we may grant her relief only if we conclude that, as a
matter of law, her statement characterizing the Young Agency as one that
“specializes in underage girls and advertises on websites linked to sex
trafficking” could not be understood to insinuate wrongful conduct by the
Young Agency. Because that appears to be the very impression conveyed,
and because reasonable jurors could in fact hear it that way, in my view,
Young is entitled to present the case to a jury.
26
ROGERS, et al. v. HON. MROZ, et al.
Cattani, J., dissenting
¶83 In sum, I agree with the superior court’s ruling denying
Rogers’s motion for summary judgment, and I respectfully dissent from the
majority’s contrary opinion.
AMY M. WOOD • Clerk of the Court
FILED: AA
27