NEWS MEDIA UPDATE · ARIZONA · Libel · July 5, 2005
Letter calling for executing Muslims is protected speech
July 5, 2005 · Publishing a letter to the editor which suggested that attacks by Iraqi insurgents could be stopped by killing innocent Muslims in mosques is protected by the First Amendment, the Supreme Court of Arizona ruled Friday, dismissing an intentional infliction of emotional distress lawsuit.
“The letter to the editor upon which Plaintiffs’ complaint is based involves a matter of undeniable public concern — the war in Iraq,” Justice Andrew D. Hurwitz wrote for the unanimous court. “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 for political speech. It therefore follows that the [Tucson] Citizen cannot be held liable under Arizona tort law for publishing this letter.”
Aly W. Elleithee and Wali Yudeen S. Abdul Rahim sued the Tucson Citizen over a Dec. 2, 2003, letter to the editor written by 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,” Wright wrote. “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.”
The newspaper immediately received a wave of letters opposing and condemning Wright’s suggestion. Within one week of printing the original letter, the Citizen published 21 responses, including one by Elleithee, and an editorial by Publisher Michael Chihak condemning Wright’s suggestion and apologizing for publishing his letter.
Elleithee and Rahim, both Islamic-American residents of Tucson, sued the newspaper and Wright for assault and intentional infliction of emotional distress, and attempted to certify a class-action lawsuit on behalf of all Islamic-Americans within the reach of the newspaper’s Web site. Wright was never notified of the lawsuit, and did not participate further.
The Citizen moved to dismiss the suit, and in May 2004, Tucson Superior Court Judge Leslie Miller dismissed the assault claim but allowed the intentional infliction claim to go forward. The Arizona Court of Appeals refused to hear the Citizen‘s appeal, but because of the “serious First Amendment” concerns raised by the case, the state Supreme Court agreed to hear it.
In reversing, the Supreme Court of Arizona held that when viewed in context, the letter was not a serious expression of intent to threaten, or likely to provoke immediate lawless action.
“The statement was made in a letter to the editor, not before an angry mob,” Hurwitz wrote. “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.”
Elleithee’s attorney, Herbert Beigel, told Reuters that he had not yet decided whether to appeal the ruling to the U.S. Supreme Court.
The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case.
(Citizen Publishing Co. v. Miller; Media Counsel: David J. Bodney, Steptoe & Johnson LLP, Phoenix, Ariz.) — GP