Reporters Committee urges Arizona high court to dismiss emotional distress case over letter-to-the-editor

The Reporters Committee for Freedom of the Press urged the Supreme Court of Arizona to dismiss an intentional infliction of emotional distress lawsuit filed against the Tucson Citizen over a letter-to-the-editor. The Reporters Committee argued that, even though offensive, the letter, which suggested that attacks by insurgents in Iraq could be stopped by killing innocent Muslims attending mosques, was nonetheless protected speech because it did not amount to the incitement of imminent and likely lawless action or a “true threat.”

“One of the most valuable vehicles for public debate in communities is the local letters-to-the-editor page,” said Lucy A. Dalglish Executive Director of the Reporters Committee. “If this decision stands, only citizens who do not offend their neighbors will be allowed to express their opinions. Such a result is undemocratic.”

The Citizen published the letter, written by Dr. Emory Metz Wright, Jr., on Dec. 2, 2003. Within days the paper received considerable opposition to Wright’s letter and published 21 letters-to-the-editor and an editorial condemning it. Aly W. Elleithee, an Islamic-American whose letter opposing Wright was published by the Citizen on Dec. 4, and another Islamic-American, Wali Yudeen S. Abdul Rahim, sued the newspaper for assault and intentional infliction of emotional distress on behalf of all Islamic-Americans able to view the Citizen‘s Web site.

A state trial judge dismissed the assault claim but allowed the emotional distress claim to proceed, holding that “a public threat of violence directed at inciting or producing imminent lawlessness and likely to produce such lawlessness is not protected” by the First Amendment. A mid-level appeals court refused to hear the case, but the Supreme Court of Arizona granted review.

“The issue in this case, whether a speaker’s advocacy of illegal violence at some indefinite future time may be proscribed consistent with the First Amendment, has already been squarely addressed by the U.S. Supreme Court,” The Reporters Committee argued in a friend-of-the-court brief filed Feb. 14.

“The Supreme Court has repeatedly held that such speech may not be proscribed unless it rises to the level of speech directed to the incitement of imminent and likely lawless action, a threshold that the plaintiffs in this case are unable to cross,” The Reporters Committee wrote. “The letter was a suggestion of policy in a forum normally devoted to debate on public issues, but there is no indication that the author or anyone else actually intended to carry out that suggestion. The letter was thus not directed to incite, but to discuss, and lawless action was neither imminent nor likely.

Daniel C. Barr of Perkins Coie Brown & Bain P.A. in Phoenix, Ariz. acted as local counsel for The Reporters Committee on the brief.

The brief can be viewed online at: www.rcfp.org/news/documents/20050215-amicusbrie.pdf