Rogers v. Mroz (12/8/2020)

March 8, 2021

Arizona Court of Appeals Division One holds that a political attack ad that states a person “specializes in underage girls and advertises on website linked to sex trafficking” cannot be taken by a reasonable listener as an accusation of a precise and verifiable undisclosed fact that the person was complicit in sexual misconduct with underage girls and was complicit in sex trafficking, and cannot be the subject of a defamation action consistent with the First Amendment.

A candidate for political office worked as a talent agent for a modeling agency that worked with models of all age, from newborns to the elderly.  In that capacity, he created a profile on a website that served as a marketplace for the modeling industry.  The website also had a reputation as being used for sex trafficking, and a national news outlet had published an investigation linking the website to sex crimes.  The candidate’s opponent published a radio ad that stated the candidate’s agency “specializes in underage girls and advertises on websites linked to sex trafficking,” and published a blog that said the candidate “personally advertises” on a website “full of pornographic material which has also been involved in human trafficking,” referencing the national news investigation.  The agency instructed the candidate to keep its name out of the controversy.  Following the election, the agency then sued the opponent for defamation on a theory of express and implied defamation.  The opponent moved for summary judgment based on the First Amendment because the statements were true and even if they were false, she lacked actual malice.  The superior court denied the motion.  The opponent then petitioned for special action relief in the Court of Appeals. 

The Court of Appeals accepted jurisdiction and reversed.  The Court held that campaign speech is the purest form of political expression and that the First Amendment safeguards an open, unvarnished clash of ideas.  From this backdrop, the Court determined that it was substantially true that the agency specialized in underage girls because an agency principal had written a book about how to become a child model, and child models accounted for about 50 percent of the agency’s models.  The Court rejected the implied defamation because the agency had presented no evidence, such as expert testimony, that the statement could be taken as implying criminal conduct.  The Court then held that the radio ad was absolutely protected opinion and argument in any case, that could not be taken as assertions of precise and objective facts, largely due to their context as campaign advertisements.  The campaign blog further directed the reader to the source of the ad’s statements, which brought it within the protection of the First Amendment.

Dissenting, Judge Cattani would have held that because a reasonable person could understand the statement “specializes in underage girls and advertises on websites linked to sex trafficking” to imply the agency was complicit in child sex trafficking of underage girls, and this was precisely what the opponent intended, summary judgment was improper. 

Presiding Judge Weinzweig delivered the opinion of the court, joined by Judge Gass. Judge Cattani dissented.