Commentary and opinions put forth in 2020 by a nationally known conservative talk show host about a failed Congressional candidate from Arizona was political speech protected by the First Amendment, the Arizona Supreme Court ruled Friday.
As a result, a lawsuit filed against James T. Harris and iHeartRadio by Daniel McCarthy has been referred back to a Maricopa County judge with instructions to dismiss McCarthy’s complaint with prejudice.
“For political speech to ultimately serve the interests of public discourse in a constitutional republic, it is fitting to recall the words of George Washington: ‘In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened,’” Justice William Montgomery wrote for the Court.
The unanimous decision stems from a November 2020 political rally attended by both McCarthy, who was trounced by Martha McSally in that year’s Republican primary for U.S. Senate, and Harris, the popular host of The Conservative Circus for iHeart-owned KFYI in Phoenix.
During two of his subsequent shows, Harris discussed his participation at the rally as well as his interactions with McCarthy. Harris also provided commentary on McCarthy’s fitness for office, McCarthy’s campaign finance rumors, and the demeanor of McCarthy’s supporters at the rally.
Promotional matter for The Conservative Circus describes Harris’ show as “an irreverent look at the important issues of the day,” while an internal Supreme Court documents paints it as an “overtly partisan political talk-show.”
McCarthy sued Harris and iHeart in February 2021, seeking $20 million in compensatory damages and $100 million in punitive damages for alleged defamatory statements during Harris’s shows.
Judge Randall Warner of the Maricopa County Superior Court sided with Harris and iHeart in dismissing the majority of McCarthy’s claims, which the judge noted were clearly Harris’ opinions and therefore not actionable under Arizona’s defamation law.
Warner, however, refused to dismiss nine comments challenged in the lawsuit. The judge’s July 2021 ruling stated McCarthy should be given an opportunity to further argue that those few comments were false and actionable under the law.
Harris and iHeart then filed a Petition for Special Action challenging Warner’s disregard for the constitutional protections long afforded political speech, opinion, and rhetorical hyperbole.
The Arizona Court of Appeals declined to hear the petition in September 2021, but the Arizona Supreme Court put Warner’s ruling on hold while the justices decided whether to take up the case.
In January 2022, the parties were notified the justices had accepted the petition. Oral arguments were held April 14, 2022, yet no further action had been announced in the case until Thursday when a notice was issued that the justices planned to release an Order on Friday morning.
In that Order, the Arizona Supreme Court found all nine of those remaining claims were political commentary protected under Harris’ First Amendment rights and must be dismissed as well.
“Given each statement’s content, the overall context, and the protections afforded to core political speech by the First Amendment, we hold that the statements are not actionable,” wrote Montgomery
A public comment on the Supreme Court’s ruling is expected shortly from iHeartRadio. However, in its September 2021 petition, the company’s attorneys noted that rather than respond to Harris’s criticism with counter speech, “McCarthy sought to silence Harris’s political commentary by filing this $120 million lawsuit.”
Harris and his The Conservative Circus program has aired weekdays on iHeartRadio’s News Talk 550 KFYI in the highly coveted 6 a.m. to 10 a.m. slot since January 2018.