FLAGSTAFF — State Sen. Wendy Rogers, R-Flagstaff, has a penchant for headlines — either with social media posts or lawsuits.
The latest turn in the headlines came when Rogers went to court to defend herself against a defamation lawsuit filed by the employer of a former political opponent.
The case dates back to Rogers’ 1st Congressional District GOP primary campaign against former state lawmaker Steve Smith from Maricopa in 2018. In a political ad, Rogers attacked Smith as “a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.”
Smith is a talent agent and director of a modeling agency owned by Pamela Young, who sued saying the ad “unnecessarily tarnished” her reputation. Young said the ad subjected her agency to “hatred” and “contempt” and drove away business.
A Superior Court judge found in Young’s favor, but an appeals court overturned that verdict. On Sept. 27, the state Supreme Court heard arguments in the case. The justices asked pointed questions, suggesting the case could prove precedent-setting when it comes to setting the standards for defamation of public figures.
Attorney General Mark Brnovich filed an amicus brief that said the case has implications for all citizens’ “ability to recover for false speech causing reputational harm.”
Rogers’ ad helped her defeat Smith. However, she then lost to Democratic Congressman Tom O’Halleran in the general election. CD1 includes most of Pinal County.
Rogers was later elected to the Arizona Senate seat representing much of northern Arizona after raising a record amount of out-of-state money to unseat longtime incumbent Sylvia Allen in the Republican primary.
Rogers has become known for controversial statements in her first term and also survived an employee’s state ethics complaint that she created a hostile work environment.
Most recently, Rogers joined with five other state representatives calling for a “forensic” audit of the presidential vote in all 50 states, followed by a decertification of the 2020 presidential election results. Then Congress should select a new president, with each state getting one vote.
The Arizona Senate hired a consulting firm to recount the roughly 2.1 million votes cast in Maricopa County. After spending some $4 million — mostly from private donors — the audit’s hand count showed Biden winning by about 400 more votes than the official tally. However, some Republican officials have said the audit showed problems with addresses and signatures in the vote verification process, even though it uncovered no evidence of voter fraud.
The libel case involving Rogers’ former Republican opponent raises key constitutional issues.
The U.S. Supreme Court in the landmark, 1964 Sullivan v. NY Times, set a high standard when it comes to winning a libel case involving public figures — which would certainly include two people running for office. To win damages, you must first prove the statement was false and damaging. But you must also prove the publishers acted with “malice” and knew the information was false or acted with “reckless disregard” for whether the statement was true.
However, Young’s lawsuit rests on the claim that her ad agency amounted to an innocent bystander — not a public figure. In that case, she would just have to prove that the claim was false and damaging.
The ad agency does contract with underage girls to model clothing. And Smith at some point used a website — ModelMayhem.com — to market the agency. A 2013 NBC News piece reported that suspected sexual predators haunt ModelMayhem and similar websites.
Sharp questioning by the justices explored the thorny issues raised by the case, without giving much of a clue as to how the Supreme Court might rule.
The justices in their questions acknowledged that Young’s modeling agency has a “sterling reputation” and seemed sympathetic to the damage done to the agency and to Young’s ability to attract businesses as a result of Rogers’ attack.
Justice Philip Espinosa said “reasonable” people he’d asked about the case said they would avoid doing business with the modeling agency after hearing the statements in the ad. So would Young just be “out of luck” if she went broke because of the ad?
“That’s correct,” said Dominic Draye, Rogers’ attorney.
On the other hand, other justices noted that the modeling agency wasn’t mentioned directly in the ad — and few people watching the ad were likely to have gone to the trouble of figuring out which agency the ad referred to.
Moreover, justices worried that the case could cause all kinds of problems for political speech if it established you can damage someone through “guilt by association.”
For instance, Justice Clint Bolick gave a hypothetical situation in which someone declared “Trump and all his supporters are fascists.” Does that mean any Trump supporter who could prove he or she wasn’t a fascist could therefore sue for damages?
Rogers attended the hearing but didn’t speak and left without answering news media questions, according to an account of the hearing in The Arizona Republic.
Peter Aleshire is consulting publications editor for the Payson Roundup and White Mountain Independent, divisions of Kramer Media.