IN THE
SUPREME COURT OF THE STATE OF ARIZONA
JAMES T. HARRIS AND IHEARTMEDIA , INC.,
Petitioners,
v.
HON. RANDALL WARNER, JUDGE OF THE SUPERIOR COURT
OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
DANIEL MCCARTHY,
Real Party in Interest.
No. CV-21-0242-PR
Filed April 14, 2023
Appeal from the Superior Court in Maricopa County
The Honorable Randall H. Warner, Judge
No. CV2021-001785
REVERSED AND REMANDED WITH INSTRUCTIONS
Order of the Court of Appeals, Division One
No. 1 CA-SA 21-0193
Filed September 28, 2021
COUNSEL:
Marvin A. Glazer, Haynes and Boone, LLP, Palo Alto, CA; and Laura Lee
Prather (argued), Haynes and Boone, LLP, Austin, TX, Attorneys for James
T. Harris and iHeartMedia, Inc.
John J. Browder (argued), Michael H. Orcutt, Jennings Haug Keleher
McLeod, Phoenix, Attorneys for Daniel McCarthy
HARRIS/IHEART MEDIA V. HON. WARNER/MCCARTHY
Opinion of the Court
David J. Bodney, Matthew E. Kelley, Ballard Spahr LLP, Phoenix; and
Gregg P. Leslie, Jacob M. Karr, Supervising Attorneys, Jolene Bryant, Chase
Johnson, Chase MacKay, Evan Stele, Vanessa Stockwill, Rule 39(c) Certified
Law Students, First Amendment Clinic Public Interest Law Firm, Sandra
Day O’Connor College of Law, Arizona State University, Phoenix,
Attorneys for Amici Curiae Arizona Broadcasters Association, Arizona
Newspapers Association, and Reporters Committee for Freedom of the
Press
JUSTICE MONTGOMERY authored the Opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and
JUSTICES BOLICK, LOPEZ, BEENE, and KING joined.
JUSTICE MONTGOMERY, Opinion of the Court:
¶1 In this case, we consider whether certain statements made on
air by a radio talk show host about a political figure may serve as a basis for
a defamation action. Given each statement’s content, the overall context,
and the protections afforded to core political speech by the First
Amendment, we hold that the statements are not actionable.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 Petitioner James T. Harris hosts a radio show called The
Conservative Circus on KFYI, a local radio station owned by Petitioner
iHeartMedia, Inc. (collectively, “Petitioners”). Respondent Daniel
McCarthy is a “Republican political hopeful” who attended a “Stop the
Steal” rally protesting certification of the 2020 Presidential election results
on November 7, 2020, at the Arizona State Capitol. Harris also attended
the rally and gave a speech. Near the end of Harris’ speech, several
attendees at the rally began chanting for McCarthy who then also spoke.
Subsequently, and over the course of two consecutive radio shows, Harris
discussed his observations of McCarthy, McCarthy’s recent campaign for
the United States Senate, and his interactions with McCarthy’s supporters
at the rally.
¶3 McCarthy sued Petitioners, alleging that numerous
statements made by Harris on The Conservative Circus were defamatory.
Petitioners filed a motion to dismiss McCarthy’s complaint pursuant to
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Arizona Rule of Civil Procedure 12(b)(6), arguing that the statements were
rhetorical hyperbole incapable of being proved false and protected by the
First Amendment, and were therefore not actionable.
¶4 In its ruling on the motion to dismiss, the trial court noted that
the statements addressed matters of public concern and that McCarthy was
a public figure. Turning to Harris’ allegedly defamatory statements, the
court found the majority were not defamatory. Of nine that were
potentially actionable, the court quoted them as follows with our
enumeration:
Statement (1): “McCarthy ‘has absolutely no control over his
emotions or the emotions of the people who are supposed to
be supporting him.’”
Statement (2): “The conduct of McCarthy’s supporters at the
rally ‘was downright frightening because they were
unhinged.’”
Statement (3): “McCarthy and his supporters at the rally were
‘acting like ANTIFA.’”
Statement (4): “McCarthy ‘surrounded himself’ with ‘thugs’
and ‘thuggish bodyguard types.’”
Statement (5): “McCarthy ‘attacked’ Harris at the rally.”
Statement (6): “McCarthy’s supporters ‘got hostile’ at the
rally.”
Statement (7): “McCarthy and his supporters ‘created
something called the Guerilla Party.’”
Statement (8): “McCarthy ‘had an opportunity to dump more
money into his campaign. He told people he would put a
million dollars’ into his campaign and he was ‘nowhere
close.’”
Statement (9): “McCarthy ‘didn’t even have enough faith in
his own voice to invest in it.’”
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¶5 The court found that Statements (1)–(6) could be actionable
because a factfinder may conclude that “the gist” of what was said “was
that McCarthy and his followers engaged in or threatened violence at the
rally.” Despite acknowledging that “[s]ome of these statements might not
be actionable taken alone,” the court reasoned that “the context of other
statements could be construed as a factual description of McCarthy’s
conduct,” namely that “McCarthy uses violence to achieve political
objectives, or at least has violent impulses he cannot control.”
¶6 The court found Statement (7) could also be actionable
because a “statement that McCarthy recently created a new political
party . . . could be found to state a defamatory fact.” Finally, because they
were “capable of being proven true or false,” the court concluded that
Statements (8) and (9) could be actionable too. Petitioners sought special
action relief from the trial court’s decision in the court of appeals, which
declined to accept jurisdiction.
¶7 We granted review to determine whether the superior court
erred in denying Petitioners’ motion to dismiss, an issue of statewide
importance. We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution.
II. STANDARD OF REVIEW
¶8 We review de novo the denial of a Rule 12(b)(6) motion to
dismiss. Mesnard v. Campagnolo ex rel. Cnty. of Maricopa, 251 Ariz. 244, 248
¶ 11 (2021). “Dismissal is appropriate only if a plaintiff ‘would not be
entitled to relief under any interpretation of the facts susceptible of proof’
as a matter of law.” Id. (quoting Coleman v. City of Mesa, 230 Ariz. 352, 356
¶ 8 (2012)). We review a trial court’s determination of a statement’s
capacity for defamatory meaning de novo as well. Sign Here Petitions LLC
v. Chavez, 243 Ariz. 99, 106 ¶ 22 (App. 2017). In reviewing a defamation
case, we are also mindful that courts serve as gatekeepers to ensure,
especially in the context of political speech, “that only truly meritorious
defamation lawsuits are allowed to proceed.” Rogers v. Mroz, 252 Ariz.
335, 338 ¶ 4 (2022).
¶9 Our review of allegedly defamatory statements concerning
public matters is further characterized as an “enhanced appellate review,”
id. at 340 ¶ 20 (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990)), where
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“we examine for ourselves the statements in issue and the circumstances
under which they were made to see . . . whether they are of a character
which the principles of the First Amendment, as adopted by the Due
Process Clause of the Fourteenth Amendment, protect.” New York Times
Co. v. Sullivan, 376 U.S. 254, 285 (1964) (citation omitted) (internal quotation
marks omitted) (alteration in original).
III. DISCUSSION
A. Defamation And The First Amendment
¶10 McCarthy argues each of the nine statements is actionable
because they can be reasonably interpreted as asserting or implying false
statements of fact that defamed him. Harris contends the statements
constitute political speech protected by the First Amendment. 1
¶11 Generally, for a public figure to bring a defamation claim, the
plaintiff must allege (1) the defendant made a false statement concerning
the plaintiff, (2) that is defamatory, (3) published to a third party, (4) made
with actual malice, and (5) that the plaintiff was damaged as a result of the
statement. Morris v. Warner, 160 Ariz. 55, 62 (App. 1988). “To be
defamatory, a publication must be false and must bring the defamed person
into disrepute, contempt, or ridicule, or must impeach plaintiff’s honesty,
integrity, virtue, or reputation.” Turner v. Devlin, 174 Ariz. 201, 203–04
(1993) (quoting Godbehere v. Phx. Newspapers, Inc., 162 Ariz. 335, 341 (1989)).
¶12 In Rogers, this Court canvassed Arizona and United States
Supreme Court precedent to conclude further that in order “to establish a
defamation claim on matters of public concern: (1) the assertion must be
provable as false; [and] (2) the statement must be reasonably perceived as
1 Harris also generally references the “Arizona Constitution” but does not
cite to any specific provision nor does he develop any argument based on
state constitutional protections. We therefore deem this argument
waived. See State v. Bolton, 182 Ariz. 290, 298 (1995) (“Failure to argue a
claim on appeal constitutes waiver of that claim.”); see also Ariz. R.P. Spec.
Act 7(e) (providing that petition for special action shall include “an
argument containing the petitioners’ contentions with respect to the issues
presented, and the reasons therefor, with citations to the authorities,
statutes and appropriate references to the record”).
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stating actual facts about an individual, rather than imaginative expression
or rhetorical hyperbole.” 252 Ariz. at 341 ¶ 22.
¶13 With respect to the statements challenged by McCarthy, we
“carefully examine every alleged defamatory statement,” Yetman v. English,
168 Ariz. 71, 79 (1991), and analyze them within their proper context to
determine their meaning, Rogers, 252 Ariz. at 342–43 ¶¶ 31–32; accord
AMCOR Inv. Corp. v. Cox Ariz. Publ’ns, Inc., 158 Ariz. 566, 570 (App. 1988)
(“[C]ourts give great weight to the context in which the statements are
made.”). Understanding a statement in context is “even more important”
when the speech relates to issues of public concern. Rogers, 252 Ariz.
at 342 ¶ 31. “Indeed, context may well be dispositive” in such cases. Id.
Additionally, in deciding whether a statement is actionable, “[t]he key
inquiry is whether the challenged expression . . . would reasonably appear
to state or imply assertions of objective fact.” Yetman, 168 Ariz. at 76
(emphasis omitted) (quoting Immuno AG. v. Moor–Jankowski, 567 N.E.2d
1270, 1273 (N.Y. 1991)). We “cannot stop at literalism,” but must
“‘consider the impression created by the words used as well as the general
tenor of the expression, from the point of view of the reasonable person’ at
the time the statement was uttered and under the circumstances it was
made.” Sign Here Petitions, 243 Ariz. at 105 ¶ 21 (emphasis omitted)
(quoting Yetman, 168 Ariz. at 76). We do this not with the “critical analysis
of a mind trained in the law, but by the natural and probable effect upon
the mind of the average [listener].” Yetman, 168 Ariz. at 77 (alteration in
original) (quoting MacLeod v. Tribune Publ’g Co., 343 P.2d 36, 41–42 (Cal.
1959)).
B. The Challenged Statements
¶14 With the foregoing in mind, we consider each challenged
statement (in bold) set forth in context:
Statement (1): “Someone needs to tell Daniel McCarthy that he – if
he’s running for office, he has disqualified himself, because no one
in the world would ever decide to support a guy who has absolutely
no control over his emotions or the emotions of the people who are
supposed to be supporting him.”
Statement (2): “Someone needs to tell Daniel McCarthy that he – if
he’s running for office, he has disqualified himself because no one in
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the world would ever decide to support a guy who has absolutely
no control over his emotions or the emotions of the people who are
supposed to be supporting him. What I saw on Saturday was
downright frightening because they were unhinged.”
Statement (3): “Dr. Ward’s daughter was in the audience, and they –
they went – they said some of the most crazy, out world, just – and I
went over, I’m like, are you okay? She was visibly shaken, angry.
These lunatics – look. When we have these kind of events, we need
to make sure that we are not down there acting like ANTIFA. We
need to make sure we’re not acting like BLM. We need to be better
than them or we will cannibalize our own movement.”
Statement (4): “What I saw out there on Saturday from Daniel
McCarthy and his – his thugs was disturbing. And based on what
I saw down at the Capitol, people are going to remember this.
They’re going to remember him as the guy who surrounded himself
with thuggish bodyguard types.”
Statement (5): “Why would a guy who claims to have so much
money and time attack fellow conservatives if in fact he’s a
conservative? Other than his rhetoric, there’s no evidence of that
whatsoever. Why would he make a public spectacle of himself and
go on the attack, attacking the very few people who are on the same
side of the political aisle?”
Statement (6): “And I said to them, one of the guys, I’m like, dude, is
this real? Are you serious? Are you seriously trying to take this
microphone away – away from me? Then it got hostile as they
were trying to get the microphone from the woman who had
organized the event, and other people were just not having it.”
Statement (7): “Let’s talk about the impact of this behavior. You
said subversive and divisive. In the last 24 hours, less than, I heard
that they created something called the Guerilla Party. The
Guerilla Party. I can’t see how that would help the Conservative
cause.”
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Statement (8): “He had an opportunity to dump more money into
his campaign. He told people he would put a million dollars, and
I’m hearing he was nowhere – nowhere – nowhere close.”
Statement (9): “He had an opportunity to dump more money into his
campaign. He told people he would put a million dollars, and I’m
hearing he was nowhere – nowhere – nowhere close. Daniel
McCarthy didn’t even have enough faith in his own voice to invest
in it.”
C. Analysis Of Statements (1)–(6) And (9)
¶15 McCarthy argues that statements (1)–(6) and (9) expressed
verifiable assertions of fact because Harris was reporting on what happened
to him at the rally and that each statement defamed him. Harris argues
statements (1)–(6) are not actionable because they are Harris’ personal
impressions and subjective criticisms of McCarthy’s conduct at the rally
and are therefore incapable of verification. Similarly, he argues that
statement (9) does not assert an objective, verifiable fact.
¶16 Statements containing “loose, figurative, or hyperbolic
language” tend to negate the implication that they convey objective facts.
Milkovich, 497 U.S. at 21; see also Turner, 174 Ariz. at 208 (finding alleged
defamatory statements to be “unmistakably exaggeration” and “not an
assertion of fact”).
¶17 We readily conclude statements (1)–(6) and (9) are not
actionable. Each statement either cannot be reasonably interpreted as a
factual assertion, is not provable as false, or both. Given the overtly
political context, tone, and general purpose of The Conservative Circus,
statements such as: McCarthy has “absolutely no control over his
emotions”; conducted himself in a manner that was “downright
frightening” and “unhinged”; was “acting like ANTIFA”; surrounded
himself with “thugs”; went “on the attack, attacking” others; “it got
hostile”; and that he “didn’t even have enough faith in his own voice” are
all readily recognized as rhetorical political invective or mere hyperbole
and not statements or implications of objective fact. See Yetman, 168 Ariz.
at 77 (noting that statements are not actionable “[i]f interpreted as nothing
more than rhetorical political invective”); Greenbelt Coop. Publ’g Ass’n, Inc.
v. Bresler, 398 U.S. 6, 14 (1970) (holding the term “blackmail” nonactionable
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because it was used as “no more than rhetorical hyperbole,” and “a
vigorous epithet”).
¶18 Furthermore, Harris’ commentary is overwhelmingly
characterized by his personal and subjective impressions, lacking any
objective criteria by which to measure its falsity. See, e.g., Turner, 174 Ariz.
at 207 (“We can conceive of no objective criteria that a jury could effectively
employ to determine the accuracy of [the statements].”). Thus, even if
some of these statements might be construed as assertions of fact, it is
impossible to prove whether they are true or false, which is necessary for a
defamation action. Id. at 205 (“A statement regarding matters of public
concern must be provable as false before a defamation action can lie.”).
¶19 For example, Harris stated in Statement (2), “What I saw on
Saturday was downright frightening because they were unhinged.” Such
a statement cannot be measured by any objective criteria for determining
whether McCarthy’s conduct was in fact “downright frightening” to Harris
and “unhinged” because it reflects Harris’ subjective impressions. In
Statement (9), Harris claimed that McCarthy “didn’t even have enough
faith in his own voice to invest in it.” Again, determining whether
McCarthy did or did not have enough faith in his own voice to invest in his
campaign “is not the kind of empirical question a fact-finder can resolve.”
Yetman, 168 Ariz. at 81. And, as for Statement (5), the assertion that
McCarthy was “attacking other people” cannot be reasonably interpreted
as referring to physical action when read in context. Rather, it is fairly
understood as Harris’ subjective characterization of McCarthy’s speech that
cannot be measured by any objective criteria. Statements (1), (3), (4), and
(6) fare likewise. Thus, any comments that could reasonably be
interpreted as assertions of fact are still not provable as false.
D. Analysis Of Statements (7) And (8)
¶20 McCarthy argues Statements (7) and (8) are actionable
because stating that he had created a new political party and told people he
would put a million dollars into his campaign are verifiable assertions of
fact. Along with arguing that Statements (7) and (8) are not reasonably
interpreted as objective, verifiable facts, Harris also argues that statements
regarding the creation of a new political party or political contributions are
incapable of defamatory meaning as a matter of law.
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¶21 In Statement (7), Harris commented that McCarthy and his
supporters “created something called the Guerilla Party.” 2 McCarthy
alleges this statement harmed his reputational interest because it portrayed
him as dangerous and disloyal to the Republican Party. We reject this
claim because the mere assertion that McCarthy created a new political
party is not defamatory.
¶22 Nothing about forming a new party, a constitutional right,
would bring McCarthy “into disrepute, contempt, or ridicule,” or impeach
his “honesty, integrity, virtue, or reputation.” Godbehere, 162 Ariz. at 341.
And, in context, Harris’ point was simply that McCarthy was not helping
the conservative cause, a matter not capable of being proved false. See,
e.g., Frinzi v. Hanson, 140 N.W.2d 259, 262 (Wis. 1966) (“The degree of
allegiance one has to a political party is not libelous.”); Sheridan v. Davies,
31 P.2d 51, 53 (Kan. 1934) (holding the charge of “disloyalty to a certain
faction in [a political] party” not defamatory).
¶23 With respect to Statement (8), McCarthy argues that Harris
stating “[McCarthy] told people he would put a million dollars” into his
campaign but that he was “nowhere close” is defamatory because it
impugned his honest character. 3 We do not find this statement
defamatory. While provable as false—McCarthy could show he never
told anyone he would put any particular amount of money into his
campaign, or that he actually did put a million dollars into it—the entire
context of the statement does not impeach his integrity.
2 The parties disagree on whether Harris said, “Gorilla Party,” or “Guerilla
Party.” The actual term used is not dispositive to our resolution. Even if
Harris used the phrase “Guerilla Party,” given the context of the political
talk show no reasonable listener would have understood Harris as
insinuating that McCarthy uses violent, insurrectionist tactics to meet
political ends. Rogers, 252 Ariz. at 337 ¶ 1 (concluding no defamation
where “the asserted implication is not one that would likely be drawn by a
reasonable listener”). Therefore, we only consider this statement in the
most general sense suggesting that McCarthy created a new political party.
3 Harris asks us to take judicial notice that McCarthy did not, in fact,
contribute a million dollars to his political campaign. We decline to do so
because it does not address whether McCarthy “told people” that he would
contribute that amount.
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¶24 Under the First Amendment, apparently factual statements
must be considered in light of the nature in which the speaker uttered them
and the relationship of the statements to the overall context. AMCOR, 158
Ariz. at 571. Here, the nature of the words is colored by the context of an
overtly political talk show. Harris, the self-proclaimed “ringmaster,”
describes The Conservative Circus as “political commentary and opinion told
in an entertaining manner from one side of the political spectrum.” When
listeners tune into The Conservative Circus, they thus expect to hear political
commentary offered by Harris that reflects his opinion “in an entertaining
manner.” Such is the essence of radio talk shows today. See, e.g., Herring
Networks, Inc. v. Maddow, 8 F.4th 1148, 1157 (9th Cir. 2021) (recognizing that
“the broad context of Maddow’s show makes it more likely that her
audiences will ‘expect her to use subjective language that comports with
her political opinions’” (quoting Herring Networks, Inc. v. Maddow, 445 F.
Supp. 3d 1042, 1050 (S.D. Cal. 2020))); McDougal v. Fox News Network, LLC,
489 F. Supp. 3d 174, 184 (S.D.N.Y. 2020) (“[O]verheated rhetoric is precisely
the kind of pitched commentary that one expects when tuning in to talk
shows like Tucker Carlson Tonight . . . .”). And, as the court in AMCOR
recognized, “merely because a commentary contains both opinion and
alleged fact does not result in [it] being actionable in tort. It is the rare
commentary that will be totally devoid of supporting ‘facts’ or premises.”
158 Ariz. at 571.
¶25 Additionally, the statement involves political speech
concerning the actions of a candidate. The United States Supreme Court
has emphasized the “vast” importance and “great” advantages of speech
“discuss[ing] the character and qualifications of candidates” for political
office. Sullivan, 376 U.S. at 281 (quoting Coleman v. MacLennan, 98 P. 281,
286 (Kan. 1908)); accord Mills v. Alabama, 384 U.S. 214, 218 (1966) (noting that
“a major purpose” of the First Amendment is “to protect the free discussion
of governmental affairs,” including “discussions of candidates”). Thus,
“[t]he need for free and open debate on public issues and governmental
action should not be chilled by rules requiring courts artificially to single
out statements of fact and treat them in a vacuum, unrelated to the
argument of which they are a part.” AMCOR, 158 Ariz. at 571.
¶26 Failing to carry through with an original intention to
contribute a certain sum to one’s campaign does not presume or even
necessarily suggest that McCarthy was lying. In context, Harris simply
stated that McCarthy didn’t have enough trust in his campaign to
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contribute as much as he allegedly “told people” he would. That is more
readily perceived as political commentary regarding the perceived strength
of a candidate’s campaign than a statement of objective fact.
¶27 Harris uttered Statements (7) and (8) in the context of two
separate episodes, spanning over two hours of political commentary
centering on his appeal for party unity and his view that McCarthy was
undermining that goal. Although in isolation these statements might be
read as assertions of verifiable fact, their nature and full context render
them not defamatory. See Rogers, 252 Ariz. at 340 ¶ 19 (recognizing that in
Greenbelt, “an assertion that ordinarily could bear a defamatory meaning,
and that could be proven false, was deemed nonactionable under the First
Amendment because the context demonstrated, as a matter of law, that it
was a hyperbolic comment made during a charged public hearing on a
matter of public concern”); see also Maddow, 8 F.4th at 1160 (stating that even
though the statement “taken in isolation” was “capable of verification,” the
context established it as a nonactionable opinion (quoting Maddow, 445 F.
Supp. 3d at 1054)).
¶28 Therefore, the nature of Statements (7) and (8) and the context
in which they were made during The Conservative Circus negate the
allegation that Harris asserted objective, defamatory facts. See McDougal,
489 F. Supp. 3d at 183–84 (“This ‘general tenor’ of the show should then
inform a viewer that he is not ‘stating actual facts’ about the topics he
discusses and is instead engaging in ‘exaggeration’ and ‘non-literal
commentary.’” (quoting Milkovich, 497 U.S. at 20–21)).
¶29 In the context of political talk radio today and what passes for
public discourse, statements will be made where in the past an appreciation
for measured and thoughtful discussion and for one’s reputation as a
responsible purveyor of political opinion may have otherwise precluded
them. See, e.g., Yetman, 168 Ariz. at 77. Yet, the “standards of defamation
necessarily fluctuate with the vicissitudes of time and public opinion.” Id.;
accord Rogers, 252 Ariz. at 341 ¶ 22 n.2 (“[P]olitical discourse has devolved
over the past three decades. Terms that once conveyed powerful invective
such as ‘communist,’ ‘socialist,’ ‘fascist,’ and even ‘traitor’ are
commonplace in current political discourse, cheapening their pejorative
impact and becoming almost synonymous with ‘someone with whom I
disagree.’”).
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¶30 However, we do not suggest that the First Amendment
provides categorical protection to anything that may be said on a political
talk show. See, e.g., Rogers, 252 Ariz. at 338 ¶ 3 (“Candidates cannot make
defamatory assertions they hope voters will believe, then, when sued for
defamation, seek refuge in the defense that no one believes what politicians
say.”). For political speech to ultimately serve the interests of public
discourse in a constitutional republic, it is fitting to recall the words of
George Washington: “In proportion as the structure of a government gives
force to public opinion, it is essential that public opinion should be
enlightened.” George Washington, Farewell Address (Sept. 19, 1796).
IV. DISPOSITION
¶31 We reverse the trial court’s ruling and remand with
instructions to dismiss McCarthy’s complaint with prejudice.
¶32 Both parties seek attorney fees under A.R.S. § 12-349 but
neither explains why they are entitled to such an award. Lacking an
obvious reason for granting attorney fees under the statute’s enumerated
provisions, we decline the parties’ requests.
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