“This bill misstates well-established First Amendment law,” Bodney told the Arizona Mirror. “It eliminates the requirement of proving ‘actual malice’ when private figures sue for defamation over a matter of ‘public concern.’ That’s not the law and it would violate a well established First Amendment protection.”
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Bodney’s client list includes many media organizations in Arizona, including the Arizona Mirror, and he is one of the state’s most prominent First Amendment and public records attorneys.
Bodney said Senate Bill 1099, by Sen. Wendy Rogers, R-Flagstaff, would almost certainly invite a constitutional challenge if it became law.
In defamation lawsuits, public officials have to clear a higher legal bar than private individuals in order to prove they were defamed. That standard, known as “actual malice” on the part of the person publishing the alleged defamatory comment, is incredibly difficult to meet.
The standard came from a landmark U. S. Supreme Court ruling in 1964 in which the New York Times was sued for defamation for an ad they ran by Martin Luther King Jr. targeting the Montgomery Police Department. President Donald Trump has spoken about his desire to overturn the ruling so he can sue his critics and journalists.
To prove actual malice, public officials must prove that the publisher both knew that the statement was false and intentionally published it anyway. Rogers’ bill omits the actual malice standard that requires a public figure or public official to provide clear and convincing proof that a person acted with malice or knowing disregard for the truth, Bodney said.
Rogers’ bill states that a person commits defamation if a person publishes a statement they know to be false “or acts with reckless disregard of the statement’s truth” or if the person “publishes a statement that, when examined within the full context in which it was made, injures the plaintiff’s reputation” by naming them.
The bill also says that a person commits defamation if the published statement is both “provable as false” and “reasonably perceived as stating actual facts about the plaintiff rather than imaginative expression or rhetorical hyperbole.”
An amendment to the bill on the Senate floor by Senate President Warren Petersen added statute of limitation changes to defamation cases — one that doesn’t begin until allegedly defamatory statements are deleted from a website — as well as definitions involving defamatory posts on the internet.
Petersen, who hopes to be Arizona’s next attorney general, said on the Senate floor last month that the bill “codifies” existing case law around defamation. How defamation happens on the internet, he continued, has “never been contemplated” by the courts.
That is simply not true.
“While the legislative sponsors may say or believe that this bill merely codifies existing law, it does not embrace the full range of legal protections that our judiciary has recognized or applied for more than a half century, and it would be a mistake to adopt a law so unnecessary, confusing and speech restrictive as this,” Bodney said.
Petersen’s amendment also creates other issues for the First Amendment and established case law.
“It overlooks other privileges established by the courts to ensure the breathing room that the First Amendment requires for matters of speech on public concern in particular,” Bodney said, adding that it essentially eliminates the statute of limitations on defamatory statements posted online. “It does not protect freedom of speech or of the press nearly so well or clearly as our courts have done. In fact, it would limit our First Amendment protections.”
Katelynn Contreras, a lobbyist representing the American Civil Liberties Union of Arizona, echoed those concerns when the bill was heard in the House Judiciary Committee on Wednesday morning.
Contreras argued that the “overly broad” language of the bill could target a litany of speech and create a chilling effect on internet speech in general.
One Democratic lawmaker said she had been targeted by opponents on social media, but making it easier to sue those foes isn’t the right way to respond.
“I’ve been the target of multiple campaigns and rhetoric out there and of course I believe in accountability…what people want to say about me, that is on them,” Rep. Alma Hernandez, D-Tucson said, adding that elected officials shouldn’t be above scrutiny. “At the end of the day, there are already laws in place that would hold people accountable.”
The bill passed out of the committee along party lines, as it did when the Senate considered the measure last month. It will next head to the full House of Representatives for consideration.
However, even if it were to be signed into law by Gov. Katie Hobbs, Bodney said it will be challenged in court.
“It is unnecessary, unclear and constitutionally unsound,” he said. “While it purports to codify defamation law, it omits several important protections that our courts have recognized as applicable fFirst Amendment defenses.”
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Arizona Mirror is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com.
