State court hears arguments in case on letter to editor

By Andrea Kelly
Arizona Daily Wildcat
Friday, March 25, 2005

PHOENIX - The Arizona Supreme Court heard arguments for a case yesterday that will help judges decide whether or not a newspaper is responsible for what it prints in a letter to the editor.

The court heard the arguments at the Arizona State University Law School but did not make any decisions regarding the case.

In December 2003 the Tucson Citizen published a letter to the editor, which essentially said the solution to American soldiers dying in Iraq was to "proceed to the closest mosque" and kill five Muslims. During the next three days, the newspaper published 21 letters from readers criticizing the letter.

Tucson Citizen Publisher and Editor Michael Chihak published a statement that month saying it was a mistake to print the letter because it instilled fear and had the potential to cause violence.

The case was filed by two individuals who are suing the Tucson Citizen for assault and intentional infliction of emotional distress. The suit is on behalf of "all Islamic Americans who live within reach of the Internet Web site published by the Tucson Citizen," according to an Arizona Supreme Court summary of the case.

The trial court where the case was first heard, dismissed the assault charge but said by publishing the letter the Tucson Citizen, "intended to cause emotional distress or recklessly disregarded the near certainty that such distress would be caused."

The Tucson Citizen held that its publication of the letter was protected by the First Amendment and appealed the decision to the second district court of appeals. That court declined to hear the case, so it was appealed to the Arizona Supreme Court.

Yesterday's arguments were largely based on whether or not the ruling made by the trial court was consistent with other rulings. In the 1969 case Brandenburg v. Ohio, judges ruled that a public threat of violence, likely to cause people to act on it, is not protected by the First Amendment.

Judges debated with lawyers yesterday whether or not the letter was a threat. It did not include any names, and did not cause harm. The defense lawyer, Herbert Beigel, said he did not have to prove that any real harm was caused but simply that there was a threat of imminent harm.

Beigel said since there were no names it made the letter even more threatening.

"(Without names) we have something equally, if not more horrific (than if names were used)," Biegel said.

The lawyer representing the Tucson Citizen said it would be "difficult or impossible" to show that harm done anytime after the letter was published was a direct result of the letter.

Biegel said the letter was selected to be published and was not in response to a news story or another letter in the paper.

"In that sense, the paper wrote the letter," by publishing it, Biegel said.