A recent decision by the Arizona Court of Appeals stated that the superior court “must act as gatekeeper protecting the right to free speech from meritless litigation to avoid a chilling effect on free expression.” In Sign Here Petitions LLC v. Chavez, the Court of Appeals clarified the standards lower courts should use in assessing whether a defamation claim is based on a statement that was capable of bearing defamatory meaning and can proceed to trial.
Sign Here Petitioners is in the “business of collecting voter signatures on petitions proposing ballot measures in Arizona” for its clients. A rival company took to social media to disparage Sign Here, alleging in tweets that Sign Here would fail to meet its goals because of “bad signatures,” because “more than 1/3 of [signatures] are suspected of being collected by felons,” and because it collected fewer than “1/2 of [the] valid [signatures] necessary.”
Sign Here’s efforts did fail, and about 40% of the signatures it turned over to the City of Phoenix were invalid, in part because all the signatures gathered by two convicted felons were disqualified.
Sign Here sued the rival, Petition Partners, and its managing member, alleging the statements in the tweets defamed Sign Here.
Petition Partners moved for summary judgment arguing that as a matter of law, the tweets were incapable of defamatory meaning. Petition Partners won the motion. Sign Here sought post-judgment relief which was denied and Sign Here appealed.
The Court of Appeals affirmed the judgment against Sign Here.
Under Arizona’s standards, to be defamatory, a statement “must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach [that person]’s honesty, integrity, virtue, or reputation.” See Turner v. Devlin, 174 Ariz. 201, 203-04 (1993).
At the summary judgment stage, the plaintiff must show, “with convincing clarity” the statements it alleges are defamatory are capable of defamatory meaning. Read v. Phoenix Newspapers, Inc., 169 Ariz. 353, 356–57 (1991). In that determination, an Arizona Court should look beyond the literal meaning of the words used, consider the impression those words made, the tenor of the broader statement that contains them, and the circumstances under which the statement was made.
If a court decides the statement is capable of defamatory meaning, then the claim can proceed to trial where a jury will decide whether that defamatory meaning was actually conveyed.
In analyzing the statements Petition Partners published, the Arizona Court of Appeals found some statements could not be defamatory because they did not communicate assertions of fact. For example, the Court interpreted one statement to be a “[p]rediction of the future” which is not reasonably considered a statement of fact.
Other statements, in their context, were “puffery and exaggeration,” also not statements of fact.
The Court found some statements, like Petition Partners’ comments such as those about signatures collected by felons or how much money Sign Here spent could be assertions of fact. Whether someone is a felon, whether a signature is invalid because it was collected by a felon, whether a company failed to properly screen for felons in its hiring process, and how much a company spent are all assertions that could be proven true or false.
Unfortunately, the Court determined Petition Partners’ statements were not attempts to assert facts about the number of felons or dollars spent but, given the tenor of the communications, were meant to more broadly question Sign Here’s competence. The Court found the central message of Petition Partners’ statements was to announce its win over Sign Here, albeit with some exaggeration.
The Court also found the characterizations were substantially true and that slight factual inaccuracies, such as saying that 50% of signatures were invalid when it was closer to 40% invalid, would not have made a “material difference” to anyone who read the statements.
The standard for defamatory meaning the Court of Appeals articulated is not a new standard. But, in Sign Here, the Court more clearly explained how a defamation claim meets that standard in Arizona.
By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2017. All rights reserved.