Citizen Publishing Co. v. Miller

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