About defamation and free speech.

Plaintiff and Defendant were rival petition-passers. Plaintiff failed to get a referendum on the ballot because it got caught using felons to pass its petitions. When Defendant cackled about this on Twitter Plaintiff sued him for defamation. (The factual details are mostly unimportant and in any case should, as with so much that happens on Twitter, have been as embarrassing to the tweeter as to the tweetee. We will just mention, to give you an idea of the intellectual and emotional depth of the dispute, that one of the tweets at issue was, in its entirety, “chicken dinner.”) Defendant moved for summary judgment; Plaintiff responded with the lawyerly argument that 1) the statements were “indisputably false” and 2) there was a factual dispute about whether they were true. The trial court granted the motion.

The Court of Appeals affirms. “We . . .  hold when ruling on a motion for summary judgment in a defamation case: (1) the superior court must act as gatekeeper protecting the right to free speech from meritless litigation to avoid a chilling effect on free expression; (2) in that role, before allowing a defamation claim to proceed to trial, the superior court must first determine whether a statement is capable of bearing a defamatory meaning by considering all of the circumstances surrounding the statement; and (3) in doing so, the superior court is to evaluate the circumstances surrounding an allegedly defamatory statement from the point of view of a reasonable person.” All of that has been said before (though whether it all fits together in this context is another matter) and isn’t really the holding as much as a statement of principles on which the opinion relies.

“Because this case raises issues concerning the right to free speech, we conduct an ‘enhanced appellate review.’” The courts keep saying that; we wish they would some day tell us what that is. The phrase, taken from U.S. Supreme Court public-figure and media cases, was introduced into Arizona law by someone for whom deep-sounding meaninglessness was a way of life. By what objective standard can we distinguish “enhanced” review from the plain, old, mediocre review given your case and mine? Could the Supreme Court reject such an opinion for the specific reason that the Court of Appeals’ review wasn’t “enhanced”? If so, how could it tell? If not, what meaning does the phrase have?  But this opinion is careful to say more than once that it is using “enhanced” review. How do we know? Because it says so.

The court then wanders off to discuss commercial speech for awhile. Defendant’s tweets, you see, might simply be seen as ads for himself. But “when speech has a mixture of commercial and non-commercial elements, the presence of the former does not diminish the constitutional protection of the whole.” So this stuff makes no difference, much less being dispositive, but the court wants to be sure you know that it considered this useless nuance. Maybe that’s part of “enhanced” review.

The court then decides that Defendant’s tweets were, to the extent not substantially true, exaggerations not defamatory in context.

If you thought there was nothing novel here, though, you skipped footnote 3. We agree that skipping the court’s footnotes is harmless 99% of the time but here it is one of the more important parts of the opinion (possibly the only important part). The court had been relying on First Amendment cases; what about the Arizona Constitution? “Arizona’s declaration of rights ‘came essentially verbatim from the state of Washington’s constitutional convention of 1889.’” So the court looks at a Washington case holding that protecting free speech is a two-step process. First, the trial court determines as a matter of law “[w]hether the allegedly defamatory words were intended as a statement of fact or an expression of opinion.” Then it determines “whether [the] statement is actionable by considering the ‘totality of the circumstances.’” The fact/opinion distinction isn’t quite that simple, as cases cited in this opinion point out. And the court doesn’t quite explain whether Washington’s test – now Arizona’s test – is the same as the First Amendment test or something slightly different.

Somebody tried hard on this one, which was clearly intended to be an important and authoritative statement. But you’d be better served reading Milkovich from the U.S. Supreme Court and Turner from ours to get a handle on this law.

(Opinion: Sign Here v. Chavez)