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Louisiana State Univ.

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Tuesday, July 19, 2005

Arizona Supreme Court Holds That 1st Amendment Protects Letter To Editor Calling For Killing Innocent Muslims

In Citizen Publishing Co. v. Miller, the Arizona Supreme Court has held that a newspaper may not be held liable for intentional infliction of emotional distress  "for printing a letter to the editor about the war in Iraq."

In December of 2003, the Tucson Citizen printed the following letter from Dr. Emory Metz Wright Jr. "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." As a result, the newspaper received numerous responses criticizing Wright's views, including one from Aly W. Elleithee, one of the real parties in interest in the case. In January of 2004 Elleithee and Wali Yudeen S. Abdul Rahim filed this action in trial court in Pima County against both the Citizen and Wright. The Citizen filed a 12(b)(6) motion. The trial court dismissed the plaintiffs' assault claim, but allowed the IIED claim to proceed and also found that "a public threat of violence directed at producing imminent lawlessness and likely to produce such lawlessness" might exist, thus that the Citizen's claim that Brandenburg controlled here was not necessarily persuasive. The appellate court refused to accept jurisdiction and the Supreme Court agreed to hear the case.

According to the Court, "[t]he only issue is whether the publication of [Wright's] letter is protected by the First Amendment." Plaintiffs offered in the alternative that the words here were "incitement", "fighting words" or a "true threat." The Court rejected the incitement alternative, judging that the letter "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..."

Next, the Court considered and rejected the suggestion that Wright's were "fighting words." "This case does not fall within the fighting words exception...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 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."

Finally, the Court examined the notion that "the letter constituted a "true threat....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...Such statements are far less likely to be true threats than statements directly purely at other individuals....Second, this expression occurred in the letters to the editors 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 of public discourse is far less likely to be a true threat than statements contained in private communications or in face-to-face confrontations.... 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....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....In short, we conclude that this letter does not fall within one of the well-recognized narrow exceptions to the general rule of First Amendment protection [sic] for political speech."

Read the entire opinion here.

http://lawprofessors.typepad.com/media_law_prof_blog/2005/07/arizona_supreme.html

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