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Arizona Supreme Court tosses GOP Senate candidate’s defamation lawsuit against radio talker

By: - April 14, 2023 2:11 pm

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The Arizona Supreme Court on Friday unanimously affirmed First Amendment protections for political commentators, ruling that lower courts should have swiftly rejected a defamation lawsuit that a failed Republican U.S. Senate candidate brought against a talk-radio host.

In February 2021, Daniel McCarthy, who lost in the GOP special primary election for the U.S. Senate in 2020, filed a $120 million lawsuit against conservative Phoenix talk radio host James T. Harris and iHeartRadio, the corporate owner of KFYI, where Harris hosts a daily morning show called “The Conservative Circus.” 

The lawsuit stemmed from a November 2020 Stop the Steal rally at the state Capitol at which both Harris and McCarthy spoke. In the days that followed, Harris used his radio program to criticize McCarthy and his supporters calling the failed candidate “a sad example of a conservative” and an “asshat,” and his supporters “unhinged” people who were “acting like Antifa.”

McCarthy claimed in his lawsuit that Harris’ ridicule damaged his “integrity, virtue, and reputation” by characterizing the former candidate as someone who is “unhinged,” “crazy,” and who associates with “thugs” and “shady” people.


Harris and iHeartMedia sought to have the case dismissed, arguing that the broad protections the First Amendment grants to both media and political speech precluded the lawsuit. But Maricopa County Superior Court Judge Randall Warner ruled that some of the statements McCarthy said were defamatory could be litigated because they could be proved true or false and weren’t simply statements of opinion.

The Supreme Court, however, rejected Warner’s analysis and said the judge failed to consider the “overall context” of Harris’ commentary and improperly minimized “the protections afforded to core political speech by the First Amendment.” In the ruling, the high court ordered Warner to dismiss the case.

“Given the overtly political context, tone, and general purpose of The Conservative Circus, (Harris’) statements…are all readily recognized as rhetorical political invective or mere hyperbole and not statements or implications of objective fact,” Justice Bill Montgomery wrote on behalf of the unanimous court.

“When listeners tune into The Conservative Circus, they thus expect to hear political commentary offered by Harris that reflects his opinion ‘in an entertaining manner.’ Such is the essence of radio talk shows today,” Montgomery added.

While there are limits to what a political commentator can say, the court noted, Harris did not cross the line.

The Arizona Broadcasters Association, Arizona Newspapers Association, and Reporters Committee for Freedom of the Press urged the court to throw out McCarthy’s suit, arguing that letting it proceed would chill media activity in Arizona. Matthew Kelley, one of the attorneys for the media organizations, praised the ruling. (Editor’s note: Kelley and his firm, Ballard Spahr LLP, represent the Arizona Mirror and States Newsroom, the Mirror’s parent company.)

“This ruling is a welcome reaffirmation of the strong First Amendment protections for people expressing their opinions on political issues,” he said, “It’s an important reminder of the protections against defamation lawsuits the Constitution provides to everyone.”


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Jim Small
Jim Small

Jim Small is a native Arizonan and has covered state government, policy and politics since 2004, with a focus on investigative and in-depth policy reporting, first as a reporter for the Arizona Capitol Times, then as editor of the paper and its prestigious sister publications. He has also served as the editor and executive director of the Arizona Center for Investigative Reporting.