SUPREME COURT OF ARIZONA
En Banc
CITIZEN PUBLISHING CO., an ) Arizona Supreme Court
Arizona Corporation, ) No. CV-04-0280-PR
)
Petitioner, ) Court of Appeals
) Division Two
v. ) No. 2 CA-SA 04-0041
)
HON. LESLIE MILLER, JUDGE OF THE ) Pima County
SUPERIOR COURT OF THE STATE OF ) Superior Court
ARIZONA, in and for the County ) No. C20040194
of Pima, )
)
Respondent Judge, ) O P I N I O N
)
ALY W. ELLEITHEE and WALI YUDEEN )
S. ABDUL RAHIM, )
)
Real Parties in Interest. )
)
__________________________________)
Special Action from the Superior Court of Pima County
The Honorable Leslie B. Miller, Judge
No. C20040194
REVERSED AND REMANDED WITH INSTRUCTIONS
Petition for Review from Order of the Court of Appeals,
Division Two
No. 2 CA-SA 04-0041
STEPTOE & JOHNSON, LLP Phoenix
By David J. Bodney
Peter S. Kozinets
Chris Moeser
Attorneys for Citizen Publishing Company
HERBERT BEIGEL & ASSOCIATES, LLC Tucson
By Herbert Beigel
Attorneys for Aly W. Elleithee and Wali Yudeen S. Abdul Rahim
MAYNARD CRONIN ERICKSON CURRAN & SPARKS, P.L.C. Phoenix
By Daniel D. Maynard
Attorneys for Amicus Curiae The Thomas Jefferson Center for the
Protection of Free Expression
PERKINS COIE BROWN & BAIN, P.A. Phoenix
By Daniel C. Barr
Attorneys for Amicus Curiae The Reporters Committee for Freedom
of the Press
H U R W I T Z, Justice
¶1 The issue before us is whether liability for
intentional infliction of emotional distress can be imposed
against a newspaper for printing a letter to the editor about
the war in Iraq.
I.
¶2 On December 2, 2003, the Tucson Citizen (“the
Citizen”) published a letter on its Op-Ed page from Emory Metz
Wright, Jr. In its entirety, the letter stated:
We can stop the murders of American soldiers in Iraq
by those who seek revenge or to regain their power.
Whenever there is an assassination or another atrocity
we should proceed to the closest mosque and execute
five of the first Muslims we encounter.
After all this is a “Holy War” and although such a
procedure is not fair or just, it might end the
horror.
Machiavelli was correct. In war it is more effective
to be feared than loved and the end result would be a
more equitable solution for both giving us a chance to
build a better Iraq for the Iraqis.
¶3 The letter prompted immediate adverse reaction. From
December 4 through 6, 2003, the Citizen published twenty-one
2
letters from readers who criticized Wright’s letter. Among the
critical letters was one from real party in interest Aly W.
Elleithee.
¶4 On January 13, 2004, Elleithee and Wali Yudeen S.
Abdul Rahim (“Plaintiffs”) filed a complaint in superior court
in Pima County against the Citizen and Wright for assault and
intentional infliction of emotional distress, seeking damages
and injunctive relief.1 Plaintiffs sought to represent a
putative class of “all Islamic-Americans who live in the area
covered by the circulation of the Tucson Citizen, including the
reach of the Internet website published by the Tucson Citizen.”
¶5 The Citizen moved to dismiss the complaint for failure
to state a claim pursuant to Arizona Rule of Civil Procedure
12(b)(6). The superior court dismissed the assault claim but
declined to dismiss Plaintiffs’ claim for intentional infliction
of emotional distress, holding that “reasonable minds could
differ in determining whether the publication of the letter rose
to the level of extreme and outrageous conduct” needed to
establish the emotional distress tort. The court also rejected
the Citizen’s First Amendment argument for dismissal, reasoning
1
The Citizen is published by Citizen Publishing Company, the
named defendant below. For convenience, we refer to both the
publishing company and the newspaper itself as “the Citizen” in
this opinion. The other defendant named in the complaint,
Wright, was not served with the complaint and was therefore not
involved in the proceedings below.
3
that “a public threat of violence directed at producing imminent
lawlessness and likely to produce such lawlessness is not
protected.”
¶6 The Citizen filed a special action petition in the
court of appeals seeking review of the superior court’s order
refusing to dismiss the intentional infliction of emotional
distress claim. The court of appeals, by a 2-1 vote, declined
to accept jurisdiction. The Citizen then filed a petition for
review in this Court. We granted the petition because of the
public importance of the issue presented. We have jurisdiction
pursuant to Article 6, Section 5(3) of the Arizona Constitution
and Arizona Revised Statutes (“A.R.S.”) § 12-120.24 (2003).
II.
¶7 This case involves an unusual exercise of our
discretionary review. “[B]ecause relief by special action is
largely discretionary, we follow a general policy of declining
jurisdiction when relief by special action is sought to obtain
review of orders denying motions to dismiss . . . .” United
States v. Superior Court (In re the General Adjudication of All
Rights to Use Water in the Gila River System and Source), 144
Ariz. 265, 269, 697 P.2d 658, 662 (1985). This policy
recognizes that special action review of such interlocutory
rulings “often frustrates the expeditious resolution of claims,
unnecessarily increases both appellate court caseload and
4
interference with trial judges, harasses litigants with
prolonged and costly appeals, and provides piecemeal review.”
City of Phoenix v. Yarnell (Smith), 184 Ariz. 310, 315, 909 P.2d
377, 382 (1995). It follows that we will rarely review the
court of appeals’ discretionary refusal to accept jurisdiction
of a special action challenging the denial of a motion to
dismiss or motion for summary judgment.
¶8 There is good reason to depart from this general rule,
however, when a suit raises serious First Amendment concerns.
In Scottsdale Publishing, Inc. v. Superior Court (Romano), the
court of appeals made an “exception” to its usual reluctance to
review a denial of summary judgment by special action because of
“the public’s significant first amendment interest in protecting
the press from the chill of meritless libel actions.” 159 Ariz.
72, 74, 764 P.2d 1131, 1133 (App. 1988). Other courts have come
to similar conclusions. See, e.g., Washington Post Co. v.
Keogh, 365 F.2d 965, 966-67, 968 (D.C. Cir. 1966) (hearing an
interlocutory appeal from the denial of a motion for summary
judgment in a defamation case); Schaefer v. Lynch, 406 So. 2d
185, 187 (La. 1981) (recognizing an exception to the general
rule prohibiting appeals from a court’s refusal to grant summary
judgment in cases implicating the First Amendment to avoid a
“chilling effect” on the freedom of press); cf. AMCOR Inv. Corp.
v. Cox Ariz. Publ’ns, Inc., 158 Ariz. 566, 568, 764 P.2d 327,
5
329 (App. 1988) (“[W]hen the complaint implicates the
fundamental value of freedom of the press, there is good reason
for a court to examine the complaint with a more rigorous eye in
order not to burden public debate with insupportable
litigation.”).
¶9 In cases in which an appellate court can determine
from the pleadings a case-dispositive First Amendment defense,
special action review of a trial court’s refusal to grant a
motion to dismiss may be appropriate. Such a procedure
“relieve[s] the parties and the court of a prolonged, costly,
and inevitably futile trial” and protects First Amendment
rights. Scottsdale Publ’g, 159 Ariz. at 74, 764 P.2d at 1133.
¶10 This is such a case. There is no dispute about the
content of the letter to the editor that forms the basis for
this litigation; the letter is set forth in its entirety in the
complaint. The only issue is whether the publication of that
letter is protected by the First Amendment. We therefore
proceed to the merits of that issue.
III.
A.
¶11 The tort of intentional infliction of emotional
distress requires proof of three elements:
[F]irst, the conduct by the defendant must be
“extreme” and “outrageous”; second, the defendant must
either intend to cause emotional distress or
6
recklessly disregard the near certainty that such
distress will result from his conduct; and third,
severe emotional distress must indeed occur as a
result of defendant's conduct.
Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585
(1987); accord Restatement (Second) of Torts § 46 (1965). For
present purposes, we assume arguendo that the superior court
correctly held that Plaintiffs’ complaint stated a claim for
intentional infliction of emotional distress.
¶12 However, our assumption that the complaint states a
claim for relief under Arizona tort law merely begins the
inquiry. The First Amendment to the United States Constitution,
made applicable to the states by the Due Process Clause of the
Fourteenth Amendment, provides that “Congress shall make no law
. . . abridging the freedom of speech, or of the press.” U.S.
Const. amend. I. The landmark case of New York Times Co. v.
Sullivan recognized that the enforcement of state tort law
through civil litigation may “impose invalid restrictions on
. . . constitutional freedoms of speech and press” and thus
constitute state action denying due process of law in violation
of the Fourteenth Amendment. 376 U.S. 254, 265 (1964); accord
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 n.51 (1982)
(“Although this is a civil lawsuit between private parties, the
application of state rules of law by the . . . state courts in a
manner alleged to restrict First Amendment freedoms constitutes
7
‘state action’ under the Fourteenth Amendment.”). The Supreme
Court has most often applied the New York Times doctrine in the
context of defamation actions, but it has expressly recognized
that the same First Amendment principles apply to tort suits
alleging speech-based intentional infliction of emotional
distress. See Hustler Magazine v. Falwell, 485 U.S. 46, 56
(1988).
¶13 While speech involving private matters “is not totally
unprotected by the First Amendment,” Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985), in most such
cases a state’s interest in compensating its citizens for
injuries arising from tortious speech will outweigh any First
Amendment concerns, id. at 757-61. “Generally speaking the law
does not regard the intent to inflict emotional distress as one
which should receive much solicitude, and it is quite
understandable that most if not all jurisdictions have chosen to
make it civilly culpable where the conduct in question is
sufficiently ‘outrageous.’” Hustler Magazine, 485 U.S. at 53.
¶14 But when speech involves a matter of public concern,
the balance changes significantly. “[I]n the world of debate
about public affairs, many things done with motives that are
less than admirable are protected by the First Amendment.” Id.
When speech is about a matter of public concern, state tort law
alone cannot place the speech outside the protection of the
8
First Amendment. See id. (stating that although the intent to
inflict emotional distress “may be deemed controlling for
purposes of tort liability in other areas of the law, we think
the First Amendment prohibits such a result in the area of
public debate”). This is because “[a]t the heart of the First
Amendment is the recognition of the fundamental importance of
the free flow of ideas and opinions on matters of public
interest and concern.” Id. at 50; accord Dun & Bradstreet, 472
U.S. at 758-59 (“[S]peech on matters of public concern . . . is
at the heart of the First Amendment’s protection.”) (internal
quotation marks omitted).
¶15 Even when speech involves matters of public concern,
the protections afforded by the First Amendment are not
absolute.2 But those seeking to impose liability for speech
about matters of public concern — so-called “political speech” —
must establish some “exception to . . . general First Amendment
principles.” Hustler Magazine, 485 U.S. at 56. “[P]olitical
speech . . . may not be punished or enjoined unless it falls
into one of the narrow categories of unprotected speech
2
As New York Times recognized, even speech about public
officials can be the proper subject of a defamation suit when
made with “‘actual malice’–that is, with knowledge that it was
false or with reckless disregard of whether it was false or
not.” 376 U.S. at 279-80; see, e.g., Goldwater v. Ginzburg, 414
F.2d 324 (2nd Cir. 1969) (upholding libel verdict for United
States senator and presidential nominee under “actual malice”
standard).
9
recognized by the Supreme Court.” Planned Parenthood of
Columbia/Willamette, Inc. v. Am. Coalition of Life Activists,
290 F.3d 1058, 1092 (9th Cir. 2002) (Kozinski, J., dissenting).
B.
¶16 The letter to the editor upon which Plaintiffs’
complaint is based involves a matter of undeniable public
concern — the war in Iraq. Thus, the question is whether the
letter to the editor in this case fell within one of the “well-
defined and narrowly limited classes of speech, the prevention
and punishment of which has never been thought to raise any
Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S.
568, 571-72 (1942). Only three such exceptions to the general
rule of First Amendment protection of political speech have been
suggested in this case. The trial court held that the speech at
issue here was not protected because it could incite imminent
lawless action. See Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) (recognizing that First Amendment protection does not
extend to advocacy that “is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action”). Plaintiffs argue alternatively that the statement at
issue here constituted either “fighting words,” see Chaplinksy,
315 U.S. at 572 (allowing state law to punish “insulting or
‘fighting’ words”), or a “true threat,” see Virginia v. Black,
538 U.S. 343, 359 (2003) (“[T]he First Amendment also permits a
10
State to ban a true threat.”) (internal quotation marks
omitted); R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)
(“[T]hreats of violence are outside the First Amendment.”). We
analyze each of these contentions in turn.
1.
¶17 The seminal case addressing the “incitement” exception
is Brandenburg, which arose out of a speech at a Ku Klux Klan
rally. 395 U.S. at 444-45. In that speech, Brandenburg
criticized Blacks and Jews and threatened “revengeance” if the
“suppression” of the white race continued. Id. at 445-47. He
was convicted of violating Ohio’s Criminal Syndicalism Act,
which prohibited advocacy of “crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing
industrial or political reform.” Id. at 444-45.
¶18 The Supreme Court reversed the conviction, holding
that “the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of
the use of force or of law violation except where such advocacy
is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.” Id. at 447. In
holding that Brandenburg’s speech did not fall within this
limited incitement exception, the Court emphasized that “the
mere abstract teaching . . . of the moral propriety or even
moral necessity for a resort to force and violence, is not the
11
same as preparing a group for violent action and steeling it to
such action.” Id. at 448 (quoting Noto v. United States, 367
U.S. 290, 297-98 (1961)).
¶19 In order to qualify as incitement under the
Brandenburg test, challenged speech must not only be aimed at
producing “imminent lawless action” but must also be “likely” to
do so. Id. at 447. In applying that test, courts must employ
“careful consideration of the actual circumstances surrounding”
the challenged speech, and recognize that not “every expression
of a provocative idea will incite a riot.” Texas v. Johnson,
491 U.S. 397, 409 (1989).
¶20 The Supreme Court has made plain that very few
statements will meet this demanding test. Claiborne Hardware is
particularly instructive in this regard. That case arose out of
the 1960s civil rights movement and involved a boycott of white
merchants in Mississippi. Claiborne Hardware, 458 U.S. at 888-
89. A number of the affected merchants filed suit against the
NAACP and various individuals to recover losses and to enjoin
the boycott. Id. at 889-90. The record showed that Charles
Evers, an official of the NAACP, had stated in various speeches
that the boycott organizers knew the identity of Blacks who had
violated the boycott, id. at 900 n.28, and intended to take
action against them, id. at 902. Evers stated that “[i]f we
catch any of you going into any of them racist stores, we’re
12
going to break your damn neck,” and that the sheriff would be
unable to protect boycott violators. Id.
¶21 The trial court awarded the merchants damages and
injunctive relief. Id. at 890-93. The Mississippi Supreme
Court affirmed portions of the trial court’s judgment and
expressly rejected the NAACP’s First Amendment defense. Id. at
894-95.
¶22 The Supreme Court reversed. It began from the premise
that because the merchants sought to “impose liability on the
basis of a public address—which predominantly contained highly
charged political rhetoric lying at the core of the First
Amendment—we approach this suggested basis for liability with
extreme care.” Id. at 926-27. The Court then considered
whether Evers’ statements qualified as incitement under the
Brandenburg test. Even though isolated instances of violence
occurred after Evers’ “emotionally charged rhetoric,” the Court
concluded that “Evers’ speeches did not transcend the bounds of
protected speech set forth in Brandenburg.” Id. at 928. The
Court noted that the acts of violence occurred long after the
challenged speech and that the speech did not therefore carry
with it an imminent threat of violence. Id.
¶23 Measured against the Supreme Court’s precedents, the
speech at issue in this case falls far short of unprotected
incitement. The suggestion in the letter to the editor that the
13
intentional murder of innocent civilians is an appropriate
response to the deaths of American soldiers is no doubt
reprehensible, and Plaintiffs’ allegation that publication of
the letter caused them and other members of the Islamic
community considerable apprehension has much force. But,
however offensive, the letter did not advocate “imminent lawless
action.” The suggestion that “we” execute Muslims was premised
on the occurrence of some future “assassination or another
atrocity.” Nor were the words likely to produce imminent
lawless action. The statement was made in a letter to the
editor, not before an angry mob. Indeed, the complaint was
filed more than a month after the challenged statements were
made and did not allege that a single act of violence had ensued
from the publication nor that such violence was imminent.
Rather, the only thing that appears to have resulted from the
challenged speech was more speech, in the form of numerous
critical letters to the editor, including one from one of the
Plaintiffs. This is precisely what the First Amendment
contemplates in matters of political concern – vigorous public
discourse, even when the impetus for such discourse is an
outrageous statement. See Whitney v. California, 274 U.S. 357,
377 (1927) (Brandeis, J., concurring) (“If there be time to
expose through discussion the falsehood and fallacies, to avert
14
the evil by the processes of education, the remedy to be applied
is more speech, not enforced silence.”).
2.
¶24 “Fighting words” are “those personally abusive
epithets which, when addressed to the ordinary citizen, are, as
a matter of common knowledge, inherently likely to provoke
violent reaction.” Cohen v. California, 403 U.S. 15, 20 (1971).
Such words are “those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.”
Chaplinsky, 315 U.S. at 572. Fighting words must be “directed
to the person of the hearer.” Cohen, 403 U.S. at 20 (citing
Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)). The
fighting words doctrine has generally been limited to “face-to-
face” interactions. See, e.g., Chaplinsky, 315 U.S. at 573
(“The statute, as construed, does no more than prohibit the
face-to-face words plainly likely to cause a breach of the peace
by the addressee.”); Gooding v. Wilson, 405 U.S. 518, 523-24
(1972) (holding unconstitutional a Georgia statute that lacked
the limitations of the statute in Chaplinsky).
¶25 This case does not fall within the fighting words
exception to the First Amendment. The statements at issue were
made in a letter to the editor, not in a face-to-face
confrontation with the target of the remarks. While the letter
expresses controversial ideas, it contains no personally abusive
15
words or epithets. The letter is neither directed toward any
particular individual nor likely to provoke a violent reaction
by the reader against the speaker.
3.
¶26 The remaining question is whether the letter
constituted a “true threat.” The true threat doctrine had its
genesis in Watts v. United States, 394 U.S. 705 (1969). The
defendant in that case had spoken at a public rally protesting
the Vietnam War. Id. at 706. He noted that he had been ordered
to report for a draft physical and stated: “If they ever make
me carry a rifle the first man I want to get in my sights is
L.B.J.” Id. Watts was thereafter convicted for violating a
federal law prohibiting threats against the president, and the
conviction was upheld on appeal. Id. at 705.
¶27 The Supreme Court reversed, holding that “the kind of
political hyperbole indulged in by petitioner” was not the kind
of true threat forbidden by the statute. Id. at 708. Although
the Court based its decision on an interpretation of the federal
statute, it made it clear that First Amendment principles
informed its conclusion, remarking that any statute “which makes
criminal a form of pure speech, must be interpreted with the
commands of the First Amendment clearly in mind.” Id. at 707.
Given the “expressly conditional nature of the statement” and
the absence of violent reaction by listeners, the Court did not
16
believe that the statement could be interpreted as anything but
“a kind of very crude offensive method of stating a political
opposition to the President.” Id. at 708.
¶28 The Supreme Court most recently revisited the true
threat doctrine in Virginia v. Black, which dealt with a
Virginia law prohibiting cross burning with the intent to
intimidate. 538 U.S. at 348. In holding that cross burnings
committed with an intent to intimidate could be constitutionally
prohibited, the Court explained the true threat doctrine as
follows:
‘True threats’ encompass those statements where the
speaker means to communicate a serious expression of
an intent to commit an act of unlawful violence to a
particular individual or group of individuals. The
speaker need not actually intend to carry out the
threat. Rather, a prohibition on true threats
protect[s] individuals from the fear of violence and
from the disruption that fear engenders, in addition
to protecting people from the possibility that the
threatened violence will occur.
Id. at 359-60 (internal quotation marks and citations omitted).
The Court then explained that “[i]ntimidation in the
constitutionally proscribable sense of the word is a type of
true threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear
of bodily harm or death.” Id. at 360.
¶29 Our court of appeals has adopted a substantially
similar test for determining a “true threat” under the First
17
Amendment. In re Kyle M. involved the interpretation of A.R.S.
§ 13-1202(A)(1), which proscribes “threatening” or
“intimidating.” 200 Ariz. 447, 448 ¶ 1, 27 P.3d 804, 805 (App.
2001). The court of appeals recognized that the dictionary
definition of “threaten” could encompass some constitutionally
protected speech. Id. at 450-51 ¶¶ 18-19, 27 P.3d 807-08.
Therefore, to avoid constitutional conflict, the court
interpreted “threat” in the statute as concurrent with the true
threat doctrine. Id. at 451 ¶ 22, 27 P.3d at 808. Relying on
“[c]ases decided since Watts,” the court determined that “true
threats” are those statements made “in a context or under such
circumstances wherein a reasonable person would foresee that the
statement would be interpreted by those to whom the maker
communicates the statement as a serious expression of an
intention to inflict bodily harm upon or to take the life of [a
person].” Id. at 451 ¶ 21, 27 P.3d 808 (quoting United States
v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)).
¶30 Thus, as in the case of incitement, the presence of a
true threat can be determined only by looking at the challenged
statement in context. See Black, 538 U.S. at 345 (holding that
consideration of “all of the contextual factors” is “necessary
to decide whether a particular cross burning is intended to
intimidate”); Watts, 394 U.S. at 708 (“Taken in context, and
regarding the expressly conditional nature of the statement and
18
the reaction of the listeners,” challenged statement was not a
true threat, but rather “political hyperbole.”). A difference
in context may be critical in determining if speech is
protected: there is a vast constitutional between falsely
shouting fire in a crowded theater and making precisely the same
statement in a letter to the editor.
¶31 Given both the content and the context of the
statement at issue here, we conclude that it is not a
constitutionally proscribable true threat. First, the letter
involved statements with a plainly political message. Indeed,
the comments arose in the context of a discussion about a
central political issue of the day: the conduct of the war in
Iraq. Such statements are far less likely to be true threats
than statements directed purely at other individuals. See
Watts, 394 U.S. at 706 (finding no true threat when statement
involved issues of current public debate); cf. United States v.
Orozco-Santillan, 903 F.2d 1262, 1266 (9th Cir. 1990) (“Although
a threat must be ‘distinguished from what is constitutionally
protected speech’ this is not a case involving statements with a
political message.”) (internal citation omitted).
¶32 Second, this expression occurred in the letters to the
editor section of a general circulation newspaper, hardly a
traditional medium for making threats, and a public arena
dedicated to political speech. Speech that is part of this sort
19
of public discourse is far less likely to be a true threat than
statements contained in private communications or in face-to-
face confrontations. See, e.g., Melugin v. Hames, 38 F.3d 1478,
1484-85 (9th Cir. 1994) (distinguishing threat communicated to
judge by mail from threat made in Watts at a public rally);
McCalden v. Cal. Library Ass’n, 955 F.2d 1214, 1222 (9th Cir.
1990) (stating that “public speeches advocating violence” are
entitled to more First Amendment protection than “privately
communicated threats of violence”).
¶33 Third, the action “threatened” in the letter was that
“we” should take deadly measures in response to future
assassinations and other atrocities. The letter is unclear as
to whom “we” refers – it could be read as referring to the
United States armed forces or to the public at large. It is
similarly unclear whether the letter advocates violence against
Muslims in Iraq, against Muslims worldwide, or against Muslims
in Tucson. Given the letter’s conditional nature and ambiguity,
we do not believe that a reasonable person could view that
letter as “a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of
individuals.” Black, 538 U.S. at 359.
IV.
¶34 In short, we conclude that this letter does not fall
within one of the well-recognized narrow exceptions to the
20
general rule of First Amendment protection for political speech.
It therefore follows that the Citizen cannot be held liable
under Arizona tort law for publishing this letter. The superior
court erred in not dismissing the Plaintiffs’ claim for
intentional infliction of emotional distress, and we remand this
case to the superior court with instructions to dismiss that
portion of the complaint with prejudice.3
Andrew D. Hurwitz, Justice
CONCURRING:
_________
Ruth V. McGregor, Chief Justice
____
Rebecca White Berch, Vice Chief Justice
3
The Citizen also claims that the publication of the letter
is protected by the Arizona Constitution’s “even greater
protection for freedom of the press than the First
Amendment[’s].” Article 2, Section 6 of the Arizona
Constitution provides that “[e]very person may freely speak,
write, and publish on all subjects, being responsible for the
abuse of that right.” Given our conclusion that tort liability
for the publication of this letter is prohibited by the federal
constitution, we need not decide today whether the state
constitution provides “even greater protection.” See Petersen
v. City of Mesa, 207 Ariz. 35, 37 ¶ 8 n.3, 83 P.3d 35, 37 n.8
(2004) (stating that a showing of a violation of the federal
constitution “obviates the need to consider whether the
protections granted by the Arizona Constitution extend beyond
those” of the federal constitution).
21
____
Michael D. Ryan, Justice
_________
Charles E. Jones, Justice (Retired)
22