Arizona Supreme Court holds that the First Amendment bars defamation lawsuits brought by third parties referenced in political advertisements under certain circumstances.

A candidate for office ran for the house of representatives.  Her opponent worked as an agent at a modeling agency.  As part of his work for that modeling agency, the opponent advertised his services on a website.  In the years leading up to the election, that website received extensive negative publicity due to an alleged sex trafficking scheme.  During the campaign, the candidate for office ran an ad that stated her opponent’s “modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.”  The advertisement did not identify the modeling agency by name, or its owner.  Following the election, the owner of the modeling agency and the agency filed a lawsuit against the candidate for defamation and false light.

The candidate moved for summary judgment, arguing that the advertisement made truthful claims about matters of public concern, there was no showing of actual malice, and so the defamation claim failed as a matter of law.  The owner and agency opposed, arguing that she was defamed by the implication that her agency was involved in sex trafficking, and that she was a private figure.  The trial court denied summary judgment.  The candidate sought special action review, and the court of appeals reversed in a 2-1 decision, finding that the advertisement could not be read as defamatory. 

In a 4-3 decision, the Arizona Supreme Court affirmed the court of appeals.  The Supreme Court reasoned that the conclusion that the owner was complicit in sex trafficking was simply “too remote to infer on behalf of a reasonable listener.”  The Court further justified its holding by explaining that if it ruled for the owner, the ruling could open the floodgates to defamation challenges any time a third party is referenced in a political advertisement.

Vice Chief Justice Timmer, joined by Justice Brutinel and Judge Espinosa, dissented.  The dissent reasoned that because the radio advertisement at issue could be understood by a listener as implying that the owner was complicit in sex trafficking, the trial court properly denied summary judgment.

Justice Bolick authored the opinion for the Court; Justice Timmer authored a dissenting opinion joined by Justice Brutinel and Judge Espinosa.