Rogers wins defamation case

The Arizona Supreme Court on Tuesday ruled in favor of Sen. Wendy Rogers in a defamation lawsuit, pointing to the First Amendment and citing concerns on chilling political speech while establishing that most private individuals don’t have legal recourse if they’re entangled in the political sphere.

The First Amendment protections extend to “both the profound and the profane,” even when political campaigning devolves into mudslinging and drags private individuals into the fray, the Court said. 

To protect that speech, the courts need to be selective in which defamation cases they take on, Justice Clint Bolick wrote in the majority opinion. Justices John Lopez IV, James Beene and Kathryn King joined. 

“The claim here is simply too attenuated to be actionable without inflicting a serious chilling effect upon important, even if repugnant, political speech,” Bolick wrote. 

The court, in its 4-3 ruling, sent the lawsuit back to the trial court to enter summary judgment for Rogers. 

The lawsuit stemmed from a radio advertisement Rogers ran during her unsuccessful run for Congress in 2018. The ad targeted one of her primary opponents, former Arizona legislator Steve Smith, and the modeling agency he worked for at the time, the Young Agency. The Young Agency represents models and actors, about half of whom are children.  

The radio 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.” 

Pamela Young, owner of the agency, sued Rogers for defamation and false light invasion of privacy. Young alleged the radio ad, which did not mention the agency by name, implied she “had committed or supported the commission of sex crimes.” 

But Bolick wrote that while politicians aren’t completely off the hook when it comes to defamation, “only truly meritorious defamation lawsuits” should be allowed to proceed. Otherwise, the threat of having to pay for litigation could chill political speech and debate. Cases like Young’s would be even worse — “opening the floodgates” for people to sue politicians for “perceived indignities” against them. 

“The First Amendment precludes a defamation action based on a political advertisement directed at an opposing candidate, in which the third-party plaintiff is unnamed, the alleged defamation is not expressed but only implied, and the asserted implication is not one that would likely be drawn by a reasonable listener,” he wrote. 

Back in September, Bolick questioned the strength of the connection between Young and the ad during oral arguments. 

“I am very concerned about the attenuation,” he said. “The ad does not mention Young Agency. In fact, it implies that this is Smith’s agency.”   

In the opinion, Bolick remained unconvinced by Young’s arguments. He wrote Young was hyperbolic in claiming the ad put her “center stage.” In context, Bolick wrote, it’s clear that the main focus of the attack ad was Smith, and the goal was to portray him as a “slimy character” who “makes a living off exploiting children as models and goes so far as to advertise his sketchy business on questionable websites.” 

“That is a far cry from any reasonably understood inference that the agency itself is engaged in sex trafficking girls,” Bolick wrote. “Sex trafficking girls makes one a criminal. Making a living in a seedy business makes one ‘slimy,’ which is exactly what the advertisement alleges that Smith does.” 

Vice Chief Justice Ann Scott Timmer penned the dissent, joined by Chief Justice Robert Brutinel and Arizona Court of Appeals Judge Philip Espinosa, who sat in in place of Justice Bill Montgomery. Timmer wrote, “The majority’s reasoning strains logic and, frankly, mystifies us.” 

“If a reasonable person could not have understood the advertisement as meaning Young Agency was complicit in sex trafficking, the assertion against the agency could not have corroborated Rogers’ characterization of Smith as ‘slimy,’” she wrote. “What was the point of mentioning the agency? The only way the contested statement paints Smith as ‘slimy’ is if the listener understands it as meaning Young Agency, his employer, is complicit in sex trafficking girls.” 

Timmer noted that it was well known that Smith worked at the Young Agency. She wrote that the majority was incorrect in asserting campaign ads can’t defame someone if they’re “not the primary target,” pointing out the majority didn’t cite an authority for that position because “there is none.” 

“(T)he majority today largely bars claims for implied defamation against private parties in political campaigns because political opponents, not private parties, will usually, if not always, be the targets of political speech,” she wrote. “This view effectively weaponizes the First Amendment against innocent bystanders ensnared by often-vitriolic political campaigns, disregards well-established precedent, and is unnecessary for protecting political speech.” 

While the state Supreme Court ruled in her favor, Rogers’ legal battles aren’t over.  

In December, her former aide Michael Polloni sued the senator, her husband, Hal Rogers, and the state in Maricopa County Superior Court for assault, intentional infliction of emotional distress and wrongful termination. Polloni alleges Rogers “badgered” him about work while he was out sick with Covid, berated him for his weight and asked him to work on campaign-related projects on the state’s time. He said she also made derogatory comments about his family members and his religious beliefs.