On February 1, 2022, the Arizona Supreme Court held that the First Amendment barred a claim for third-party defamation by implication that was based on statements made in a political attack ad.[1]  Justice Clint Bolick wrote the majority opinion joined by Justices John Lopez, James Beene, and Kathryn King.

The case arose out of a “bitter” congressional primary election between the defendant, Wendy Rogers, and Steven Smith, who was employed by the plaintiffs: the Young Agency and Pamela Young.[2] 

The Young Agency is a talent agency owned by Pamela Young that represents models, a majority of whom are minors.[3] While employed as an agent at Young Agency, Smith created an agent profile on the website ModelMayhem.com.[4] In the years leading up to the election, that website received considerable national media attention because of allegations that it was linked to sex trafficking.[5]

Rogers used this information to create a radio attack ad against Smith that included the following:

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.[6]

The italicized portion sparked the lawsuit. Although the ad did not mention the plaintiffs by name, they alleged that it defamed them by implication because it suggested that they were complicit in sex trafficking children.[7] 

Before trial, Rogers moved for summary judgment, but the trial court denied the motion, finding plaintiff’s arguments persuasive.[8] The court of appeals granted special review of that decision, and reversed it in a 2-to-1 decision, holding that the plaintiffs failed to present sufficient evidence to support their claim.[9] 

After reviewing the relevant state and U.S. Supreme Court precedents,[10] the Arizona Supreme Court held that the plaintiffs were private figures—and thus the “actual malice” standard from New York Times Co. v. Sullivan[11] did not apply—and the advertisement involved a matter of public concern because it involved an election.[12] The Court went on to hold that to establish a claim for third-party defamation by implication on a matter of public concern, the challenged assertion must be “provable as false,” and “reasonably perceived as stating actual facts.”[13] Additionally, the Court held that “context may well be dispositive,” and that appellate review of these questions is “enhanced.”[14]

The relevant context for this ad, the Court explained, was the “bitterly fought political campaign” between Rogers and Smith.[15] The broader campaign strategy was not the proper context because a reasonable person would not “research an overall campaign strategy to determine the meaning of a specific advertisement.”[16] With the context determined, the Court held that “Smith is the exclusive raison d’etre for the attack,”[17] and that the plaintiffs’ connection with the ad was “attenuated.”[18]

Additionally, the plaintiffs conceded the literal truth of the statement and challenged only its implied secondary meaning. But in the majority’s view, the plaintiffs’ perceived secondary meaning—that they were complicit in child sex trafficking—was not the most reasonable secondary meaning. It was critical to the Court’s conclusion that the allegations in the ad were intended to prove that Smith was slimy and not to prove that he, or anyone else, was engaged in sex trafficking. Thus, the most reasonable secondary meaning was that “Smith is ‘slimy’ because he makes a living off exploiting children as models and goes so far as to advertise his sketchy business on questionable websites.”[19]

It was additionally important that the plaintiffs’ counsel “identified no limiting principle” to their position.[20] Thus, the Court worried that

Were we to allow this claim to proceed, any third party who might indirectly be identified in a passing reference in a political advertisement (a business’s patrons or an official's inner circle, for instance), would have a cause of action if a possible damaging implication could be inferred from an otherwise factually accurate statement, even if the overall advertisement (as here) was clearly aimed at a political opponent.[21]

Ultimately, the Court concluded that allowing a claim for third-party defamation by implication where the challenged statement is not alleged to be false, and the alleged implied meaning is not obvious, would “inevitably and intolerably chill political speech.”[22]

Vice Chief Justice Ann Timmer dissented joined by Chief Justice Robert Brutinel and Court of Appeals Judge Philip Espinosa who stood in for recused Justice William Montgomery. The dissent would have permitted the claim because “[t]he 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.”[23]

[1] Rogers v. Mroz, No. CV-21-0001-PR, 2022 WL 289646 (Ariz. Feb. 1, 2022).
[2] Id. at *1–2.
[3] Id. at *2.
[4] Id. at *1.
[5] Id.
[6] Id. at *2 (emphasis added).
[7] Id.
[8] Id.
[9] Id.
[10] Id. at *3–6.
[11] 376 U.S. 254 (1964).
[12] Id. at *4–5.
[13] Id. at *4.
[14] Id. at *4–5.
[15] Id. at *6.
[16] Id.
[17] Id.
[18] Id. at *7.
[19] Id.
[20] Id. at *8.
[21] Id.
[22] Id.
[23] Id. at *9 (Timmer, VCJ., dissenting).


Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.