In a bid to see Maricopa County Recorder Stephen Richer’s defamation lawsuit dismissed, attorneys for Kari Lake claimed her statements accusing him of election interference, though sewn with some “rhetorical hyperbole,” are still “based on provable facts” and are therefore protected speech.  

But attorneys for Richer argued in a Maricopa County Superior Court hearing Tuesday that Lake’s list of specific criminal allegations do not hold constitutional muster.  

“The First Amendment gives defendants the right to criticize Stephen Richer’s election, administration, his political views and even his hair,” Cameron Kistler, attorney for Richer, said. “But the First Amendment does not give defendants the right to falsely and repeatedly accuse Stephen of committing specific unlawful acts.” 

Beyond the specific contours of the case, attorneys for both Lake and Richer hope the case sets some sort of precedent.  

In Lake’s case, her attorneys hope to cement political speech protections under Arizona’s recently enacted anti-strategic lawsuits against public participation, or anti-SLAPP law. And as for Richer, his attorneys hope the case shows defamation law can still operate in cases involving elections.   

Maricopa Couty Superior Court judge Jay Adleman heard arguments on whether to dismiss Richer’s defamation lawsuit.  

Lake’s attorneys, aided by Arizona State University’s First Amendment Law Clinic, claim Richer cannot overcome free speech protections and Arizona’s anti-SLAPP law, which mandates the dismissal of a lawsuit given proof the action was, “substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.”  

Jen Wright, attorney for Lake, contended Richer fails to establish actual malice as Lake believed what she was saying and couldn’t have known or had reason to know her statements were false.  

“Largely, the facts are true,” Wright said. She points particularly to Lake’s claims that upwards of 275,000 ballots lacked proper chain of custody, as well as her speculation around the widespread failure of Maricopa County ballot-on-demand printers on election day.  

Wright argued, though the Arizona Court of Appeals did not find the chain of custody convincing enough to overturn the election did not necessarily mean the claim was untrue. And as for the failure of ballot-on-demand printers, she noted the instances were “actually true,” and provable.  

She conceded Lake engaged in “rhetorical hyperbole” in using words like “injected,” “bogus,” and “sabotage.” But she argued Lake’s speech was still protected, especially given grave public concerns around elections.  

“We don’t disagree on the facts, “Wright said. “What we disagree on is how Kari Lake’s opinion of those facts relates to (Richer) and whether or not that … rises to the level of a defamation case” 

But Richer’s attorney contends they do not agree on the facts.  

“I’m not quite sure where they’re getting from the Court of Appeals … that determined that statement was factually true,” Kistler said. “We respectfully submit that the Achilles heel of defendants’ motions to dismiss is that they defend a sanitized version of defendants’ remarks.”  

Kistler went through statements from Lake and her campaign he said directly lodged criminal allegations against Richer.  

As for the anti-SLAPP law, Jessica Banks, a second-year law student at ASU’s First Amendment Clinic, argued Richer’s lawsuit is intended to deter and chill Lake’s speech, necessitating its dismissal under statute.  

And she pointed to the request for an injunction on Lake’s claims as proof of intent to limit Lake’s protected political speech. 

Laurence Schwartztol, an attorney for Richer, claimed the interpretation made the anti-SLAPP statute a “get-out-of-defamation free card.” 

Gregg Leslie, executive director for the ASU First Amendment Clinic, said they intend to see the case through to the appellate levels, but only in arguing on the anti-SLAPP law.  

He said the case is important in establishing clarity on exactly how the anti-SLAPP law works to protect speech. 

“You’re just not going to be a good, honest First Amendment clinic if you pick political sides,” Leslie said. “I have no regrets of having our clinic take this on.” 

Ben Berwick, attorney for Richer, said he hopes the case shows defamation cases can still hold water in the election contest and ensure election officials and workers are “not without recourse.” 

“Everybody has a free speech right to criticize public officials, to insult them, to say they are doing a bad job, to say the most vile things about them but there has never been a right to spread false information and false accusations,” Berwick said. “Frankly, it should serve as a warning to those who are in the business of spreading disinformation about elections that if they are going to do it in a way that makes specific false allegations against specific officials or specific election workers, they will pay a cost.”  

If the case is not dismissed, Wright said they expect to “relitigate” the 2022 election and asked the court to stay discovery while a ruling is pending. 

Judge Jay Adleman took the motions to dismiss and the request to stay discovery under advisement.