“‘Ass-Hat’ Is a Word That Has No Meaning. It Is Just an Epithet”

From McCarthy v. Harris2021 WL 8533067, decided by Maricopa County (Arizona) Superior Court Judge Randall Warner on July 21, but just posted to Westlaw a couple of weeks ago:

As alleged in the Complaint, Plaintiff Daniel McCarthy is a “Republican political hopeful.” Defendant James T. Harris is a talk show host whose program, The Conservative Circus, is a podcast and a radio broadcast on KFYI in Phoenix. Defendant iHeartRadio, Inc. owns KFYI.

On November 7, 2020, McCarthy and Harris attended a rally at the Arizona State Capitol. The Complaint describes the rally as “a Republican-based ‘stop the steal”‘ rally. Harris spoke and, near the end of his speech, several attendees began chanting for McCarthy to speak. McCarthy then spoke. The Complaint alleges that McCarthy’s conduct at the rally was peaceful and focused on political issues.

In his radio show on November 9 and 10, 2020, Harris discussed McCarthy and his encounter with him at the rally. McCarthy alleges that several things Harris said about him were defamatory….

[A.] Non-Actionable Statements.

[1.] Name-calling.

Several of the statements McCarthy alleges are, as a matter of law, not actionable because they are just name-calling. These are:

  • McCarthy is “shady,” “unhinged,” and “crazy.”
  • McCarthy has “shady ass hat people around him.”
  • “McCarthy is one of the ‘ass hats that can end up starting problems, starting trouble’ for the Republican movement.”
  • McCarthy is a “lunatic.”
  • McCarthy is a candidate who is “unhinged,” “shady,” and “crazy.”
  • McCarthy is a “temper tantrum throwing juvenile.”

“Ass-hat” is a word that has no meaning. It is just an epithet. So is the term “temper tantrum throwing juvenile.”

Words like “crazy” and “lunatic,” while they have meanings in other contexts, can only be construed as hyperbole or rhetoric in the political context. Nobody listening to Harris’s broadcast would think he was claiming McCarthy suffered from mental illness. Similarly, the words “shady” and “unhinged” cannot reasonably be construed as asserting facts about McCarthy.

[2.] Opinions About McCarthy’s Conduct.

Other alleges statements are not actionable because they are opinions about McCarthy’s conduct that cannot be proven true or false. They are:

  • McCarthy’s actions were “antics.”
  • McCarthy’s conduct was “absurd.”
  • McCarthy’s conduct was “crazy.”
  • McCarthy’s conduct at the rally was “shady” and “crazy.”
  • By his conduct at the rally, McCarthy has “disqualified himself” from political office.
  • McCarthy “tr[ied] to ‘usurp’ the Republican effort to help and support President Donald Trump following the general election, for McCarthy’s ‘own reasons, for [his] own causes.”‘
  • McCarthy tried “to steal a platform that [he] did not build.”

Most of these statements concern McCarthy’s behavior at the rally. As discussed below, some of Harris’s statements about McCarthy could be actionable because the trier of fact could find that they assert or imply facts about his conduct at the rally. But terms like “antics,” “absurd,” “crazy, and “shady” do not assert facts about McCarthy’s conduct. They are pure opinion.

Saying that McCarthy has “disqualified himself” from political office is also an opinion, as is Harris’s view that McCarthy was trying to usurp the effort to support President Trump after the election for his own reasons. It is undisputed that McCarthy spoke at the rally, and these statements about the effect of his political actions there cannot be proven true or false. Nor can the statement that McCarthy tried to steal a platform he did not build, which is also just a characterization of McCarthy’s political conduct.

[3.] McCarthy’s Conservative Bona Fides.

Harris is also alleged to have made statements regarding whether McCarthy is a good or real conservative. These are all pure opinion:

  • There is no evidence that McCarthy is a conservative.
  • McCarthy is “a sad example of a conservative.”
  • McCarthy is “no example of what a leader should be.”

It is common on all sides of the political aisle to challenge whether someone is a legitimate leader, liberal, conservative, progressive, libertarian, or any number of other political labels. Such labels are inherently in the eye of the beholder, and saying that someone is not really a good conservative or good leader does not assert or imply provable facts about them.

The court also concluded that some other statements could be actionable; That question is now before the Arizona Supreme Court, which held an oral argument on the matter in April:

[1.] Statements About McCarthy’s Conduct At The Rally.

A number of statements about McCarthy’s conduct at the rally could be interpreted as stating or implying facts. They are:

  • McCarthy attacked Harris.
  • McCarthy and his staff “got hostile.”
  • “McCarthy was at the rally ‘acting like antifa.'”
  • “McCarthy’s conduct at the rally ‘was downright frightening because they were unhinged.”‘
  • McCarthy’s exhibit[ed] frightening conduct.”
  • “McCarthy and his staffers are ‘thugs’ and their conduct at the rally ‘was disturbing.”‘
  • McCarthy’s conduct at the rally was “thuggish,” “unhinged,” “frightening,” and “hostile.”

The gist of all of these comments—or so the trier of fact could find—was that McCarthy and his followers engaged in or threatened violence at the rally. Some of these statements might not be actionable taken alone, but in the context of other statements could be construed as a factual description of McCarthy’s conduct.

The Court has distinguished the terms “thuggish,” frightening,” and “hostile” from terms like “absurd,” “crazy,” and “shady” because the former could be heard as suggesting violent or confrontational conduct. Similarly, labeling McCarthy’s” like Antifa” could be heard as suggesting he is engaged in violence, especially considering Harris’s audience.

The Court has also distinguished calling McCarthy “unhinged,” which is no different from calling him “crazy,” from the use of the word “unhinged” to describe McCarthy’s and his followers’ conduct at the rally. In that context, and when used with descriptors like “thuggish” and “attacked,” the word could be heard as stating facts about McCarthy’s conduct.

These are unquestionably fine lines, but they are necessitated by the conflicting policies behind Arizona’s notice pleading standard and the constitutional protection of free speech.

[2.] Statements About McCarthy’s Conduct Generally.

Apart from McCarthy’s conduct at the rally, Harris made other alleged statements about his conduct generally that could be actionable. They are:

  • “McCarthy recently created a new political party and named it the ‘Guerilla Party.”‘
  • “McCarthy employs violent tactics in politics, as though he is the leader of some sort of guerilla movement.”
  • McCarthy “promotes violence” and is a “thug.”
  • McCarthy “engages in hostile and violent behavior.”
  • “McCarthy surrounds himself with ‘thuggish bodyguard types.”‘
  • McCarthy is a candidate who is a “thug.”
  • McCarthy “has absolutely no control over his emotions or the emotions of the people who are supposed to be supporting him.”‘

These statements could be interpreted to state or imply that McCarthy uses violence to achieve political objectives, or at least has violent impulses he cannot control.

The statement that McCarthy recently created a new political party also could be found to state a defamatory fact. Although the parties dispute whether Harris said it was a “gorilla party” or a “guerilla party,” just stating that McCarthy formed a new political party could be defamatory. McCarthy was a recent Republican candidate for the United States Senate, and alleges that he is a supporter of former President Trump and a member of the Council for National Policy. In that context, the trier of fact could find a suggestion that McCarthy left the Republican party to create a new party damaging to his reputation as a “Republican political hopeful.”

[3.] Statements About McCarthy’s Financial Resources.

Harris also made the following alleged statements about things McCarthy said about his financial resources, and about his willingness to invest in his own campaign.

  • McCarthy “publicly brags about his vast wealth.”
  • “McCarthy ‘claims to have so much money.'”
  • “McCarthy ‘told people he would put a million dollars’ into his campaign and that ‘he was nowhere close. Daniel McCarthy didn’t even have enough faith in his own voice to invest in it.'”

These statements are capable of being proven true or false….

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