Rogers asks Supreme Court to reject defamation appeal

The former employer of a Wendy Rogers political opponent wants the state’s high court to decide whether a political candidate can be liable for defaming a third party while attacking the political rival.

Rogers argues the ongoing litigation leftover from her failed 2018 congressional run is already chilling political speech, and that if it becomes standard for cases like this to go to trial, the chilling effect would be “catastrophic.”

“Allowing a third-party employer of a candidate to sue where truthful statements criticize that candidate would circumvent the First Amendment and chill speech in the most essential area of public discourse,” Rogers’s attorneys, E. Jeffrey Walsh and Dominic Draye wrote to persuade the Arizona Supreme Court to reject the case.  

In a 2018 radio attack ad, then-congressional candidate Rogers went after one of her primary opponents, former state Sen Steve Smith and his job at the Young Agency, a modeling agency that represents models and actors, about half of whom are children. The ad’s narrator said in part that “Smith is a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.”

On her campaign’s website, www.slimysteve.com, Rogers also stated that 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.’”

Smith threatened to sue, and after the election, Pamela Young, owner of the Young Agency, did sue for defamation and false light invasion of privacy. 

Young alleged the ads implied she “had committed or supported the commission of sex crimes.”

Rogers’ attorneys said that if the court allowed the case to go to trial, it “would chill future politicians from introducing an opponent’s occupation or business practices into future elections” because the criticism might “inferentially concern” an opponent’s employer and “lead to personal civil liability.” 

The Court of Appeals overturned the lower court in a split decision in December, entering summary judgement for Rogers. Judge David Weinzweig stated in the opinion that reasonable listeners to the radio ad wouldn’t confuse this “unmistakable political flamethrower” in a high-profile congressional race with “a statement of objective fact, even if laced with factual grains.”

“It reflects a hard punch thrown during 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,” Weinzweig wrote.

The dissenting judge said the decision of whether Rogers defamed Young should have been up to a jury.

“The fact that Rogers’s statements may be technically correct does not insulate her from potential liability for what she insinuated rather than said explicitly,” Judge Kent Cattani wrote in his dissent. “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.”

Cattani pointed to Rogers’ own deposition as an example. While Rogers agreed that she “generally like[s] children,” both male and female, she responded, “False” to the question “True or False, Wendy Rogers really likes underage boys?”, saying the phrasing was “seedy-sounding” and had “an undesirable nuance.”

“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,’” Cattani wrote.

Arizona law professor Paul Bender said that while the chances of the high court taking a case are always slim, the issue at hand was a “fairly interesting and important” one that he thought had a chance.

“I think a lot of people would ask, ‘It’s a campaign, but they’re defaming people not in the campaign, do they have any special privilege to do that?’” Bender said. 

Bender said he felt the case should go to trial for jurors to decide reasonably whether the statements are defamatory and that his instinct was that the high court would order reversal.

“The case doesn’t give people enough protection against being defamed by a political campaign that they are not involved in,” Bender said. “The court of appeals opinion says, ‘Hey, it’s a political campaign so they’re free to say what they want.’ That seems to be wrong.”

During her August 2019 deposition in the case, Rogers admitted she didn’t realize the Model Mayhem lawsuit a local ABC station referenced in its 2013 article she cited had been dismissed a year before she ran the ads.

“If I have an article from a strong news outlet‚ which I would consider ABC 17 to be, then, as I said, I cited it on [the] website and then the voter can make that choice,” Rogers said. 

Rogers said the Missouri ABC affiliate was reputable because it is “an affiliate of a major news organization.” 

When asked if the Arizona Republic was, generally speaking, a reputable news source, Rogers said, “It’s questionable.” 

The Supreme Court hasn’t yet decided whether to take the case.

If it does, Rogers asks that Justice Bill Montgomery recuses himself, as the former Maricopa County Attorney defended Smith during the 2018 campaign. 

At a pro-Smith press conference with the Arizona Police Association, Montgomery said that human trafficking was a real issue, and “clarity and a commitment to truth and justice” were needed to safeguard children and hold traffickers accountable.

“Trying desperately to associate Steve with illegal activity is the worst kind, I repeat, the worst kind, of politics and muddies the understanding of the environment in which human trafficking occurs,” Montgomery said in a statement that was read at the event.

Rogers says that while Montgomery was “entirely within his rights as a citizen and elected official” to make those comments, he shouldn’t be involved in how the Court handles the case.