Arizona’s highest court is being asked to decide whether people who feel threatened by a letter to the editor can sue the newspaper.
The unusual lawsuit pits members of the state’s Islamic community against a Tucson daily newspaper.
But what the Arizona Supreme Court decides will have a broader impact on the perennial question of how much of an absolute shield the First Amendment provides against not just unpopular but potentially threatening talk.
At the heart of the dispute is a letter published in December in the Tucson Citizen.
The writer suggested that the only way to stop the killing of U.S. soldiers in Iraq would be for Americans to "proceed to the closest mosque and execute five of the first Muslims we encounter."
That letter prompted a flurry of responses and even a column by newspaper publisher Michael Chihak apologizing for the decision to print it in the first place.
ISSUE FLARES DESPITE APOLOGY
But that didn’t end the matter.
Two members of the Muslim community filed suit, charging the letter amounted to assault and intentional infliction of emotional distress.
Pima County Superior Court Judge Leslie Miller tossed the first charge.
She said that at best, the letter suggested future harm. And with no evidence that the writer intended to carry out the threat, there was no assault.
But Miller said the other claim can proceed to trial.
The judge said that to prove intentional infliction of emotional distress a plaintiff must prove the defendant’s conduct was "extreme" and "outrageous," the person intended to cause emotional distress or at least recklessly disregarded the likelihood that would be the result, and that the distress did occur.
She said those are questions of fact.
"If reasonable minds could differ about whether the conduct rose to the required level, it is a question for the jury," Miller wrote.
Of particular note is that Miller rejected the Citizen’s claim that its actions in publishing the letter were protected under the First Amendment.
"While that protection applies in most cases, a public threat of violence directed at inciting or producing imminent lawlessness and likely to produce such lawlessness is not protected," the judge said.
ATTORNEYS GO TO HIGHER COURT
When the Court of Appeals refused to intercede, the paper’s attorneys went to the Supreme Court.
Lawyer David Bodney said the lawsuit should have been dismissed because the speech at issue did not advocate immediate violence.
"If the trial court’s ruling is allowed to stand, political speech that falls well short of advocating immediate violence may be subject to sanction in Arizona, making this state a uniquely risky jurisdiction in which to publish news and commentary," Bodney wrote.
He said it would lead to unending litigation as not just letter writers but columnists and cartoonists weigh in on issues ranging from the war to abortion.
Beyond that, Bodney said the paper’s right to publish the letter is independently protected by state constitutional provisions that say "every person may freely speak, write and publish on all subjects, being responsible for abuse of that right."
DRAWING THE LINE ‘NOT CLEAR’
Chihak said the decision to print the letter was "totally legal and protected by the constitution." But he acknowledged that the decision to put it on the op-ed page was a mistake.
It even prompted a written apology to readers by Chihak in his regular Saturday column.
But Chihak said the question of where to draw the line is not that clear.
"That’s a difficult thing to pin down," he said.
"We infer some responsibilities from our First Amendment rights," Chihak said. "Those responsibilities include being a forum for voices in the community, for community conversation and discussion."
The goal, he said, is an "open forum" for people to write about issues on their minds.
But Chihak said the Citizen, like most newspapers, has rules, ranging from length of letters to refusing to print personal attacks.
He said while the letter in question did not engage in personal attacks, an apology was appropriate.
"We have to use our judgment, and I think we could have been a little more judicious about it," he said.
Bob Schuster, editorial page editor of the East Valley Tribune, agreed with Chihak’s hindsight decision.
"In my view that letter is similar to shouting ‘fire’ in a crowded theater," Schuster said. "I don’t think it’s ethical, I don’t think it’s responsible."
IS IT DEBATE OR AN ATTACK?
Schuster, however, agreed with Chihak that it is difficult to draw the line between legitimate debate and what appear to be broader attacks.
He said the Tribune has received letters that seek to pit Christianity against Islam.
"I don’t run those, either," he said.
Dennis Joyce, Schuster’s counterpart at the Arizona Daily Star in Tucson, said one way of judging what to run is what the writer advocates.
"We would never run a letter that would encourage anyone to engage in criminal activity," he said. And suggesting that people kill Muslims fits that category.
But Joyce acknowledged that the test itself is not an absolute.
For example, people who engage in civil disobedience, ranging from the lunch counter sit-ins of the civil rights movement of the 1960s to participants in some peaceful demonstrations may be breaking the law.
"I would never say ‘never,’ " Joyce said. "But part of the reason we have a free press is we have a system of laws."
That, Joyce said, means an obligation to uphold those laws even if the newspaper advocates change.