By Howard Fischer
Capitol Media Services
PHOENIX -- A Yuma Democratic lawmaker is asking a judge to toss a defamation lawsuit filed against her by two Republican legislators and a member of Congress.
Rep. Charlene Fernandez contends she did nothing wrong in signing a letter asking the U.S. Department of Justice and the FBI to investigate the activities of Rep. Mark Finchem of Oro Valley and now-former Rep. Anthony Kern of Glendale during the Jan. 6 attack on the U.S. Capitol. Both state lawmakers were there but have denied taking part in any disturbance.
There also were questioned raised in the letter she signed about GOP Congressmen Andy Biggs and Paul Gosar. These stem from a claim by Ali Alexander, who organized the "Stop the Steal'' movement, that he worked with them and Republican Congressman Mo Brooks from Alabama on the plan for the Jan. 6 demonstration.
In filing suit, Finchem, Kern and Gosar -- Biggs did not join in -- are seeking unspecified damages as well as a court order requiring Fernandez "to publish a full retraction of the false and malicious allegations'' in the letter to the federal agencies.
But attorney David Bodney who represents Fernandez, said the claim is flawed. He said that communications with law enforcement like this letter are "absolutely privileged as a matter of Arizona law.''
Bodney also took a slap at claims made in the original lawsuit that appear to be designed in a bid to use their claims against Fernandez to pursue a political agenda.
The Republican lawmakers claim, without proof, that there were "irregularities'' in the election of President Biden and that social media sites like Twitter and Facebook quashed harmful stories about Biden's son, Hunter, and his laptop that contained documents about his business dealings. And the lawsuit claims problems with the integrity of electronic voting systems and what they claim were "mysterious changes in swing states'' of vote tallies on election night.
All that, Bodney said, is legally irrelevant.
"Contrary to all of the rhetoric ... this is (ITALICS) not (ROMAN) a lawsuit about fraud in the 2020 election, the purported suppression of conservative viewpoints by social media companies or issues of border security,'' he wrote.
What the lawsuit is, Bodney said, is an attempt by Finchem, Kern and Gosar "to punish a critic for simply asking federal authorities for an investigation into their role in that attack'' on the Capitol. And he said there's no legal basis for that claim.
"Freedom of speech does not mean freedom from criticism, and the First Amendment protects Rep. Fernandez to the same extent it protects plaintiffs,'' Bodney said.
In seeking federal review, the Democrats said that Republican legislators "publicly advocated for the overthrow of the election results which encouraged precisely the kind of violent that we witnessed.'' More to the point, it says that Finchem and Kern, who had lost his reelection bid, were not only present but "actively encouraged the mob, both before and during the attack on the Capitol.''
And then there was the post from Alexander.
"We four schemed up putting maximum pressure on Congress while they were voting'' on counting the Electoral College delegates, Alexander said in a now-deleted video on Periscope.
The letter at the center of the lawsuit, which actually was signed by all of the Democrats in the legislature, says there is evidence that all four "encouraged, facilitated, participated and possibly helped plan this anti-democratic insurrection.'' But only Fernandez is named as a defendant.
The lawsuit contends she knew or should have known there was no evidence linking them to the riot. And it says that Fernandez knew the allegation that the Republicans helped stir up protesters were false or that she made them "in reckless disregard of their truth or falsity.''
Bodney said even if the letter to the FBI and Department of Justice were not absolutely privileged as communication with law enforcement, the lawsuit fails on other grounds.
"Plaintiffs have failed to plead any facts that would establish, as required, that Rep. Fernandez knew the challenged statements were false or consciously disregarded subjective doubts about their truth,'' he told the judge. And Bodney said nothing in the complaint alleges any facts showing that Fernandez entered into any conspiracy to defame.
And there's something else.
The U.S. Supreme Court has ruled that public officials can sue for defamation only if they can show there was "actual malice,'' meaning that the person making the statements knew or seriously doubted the veracity of those statements. Simple negligence or even false statements, by themselves, is insufficient for a public figure to maintain a libel or slander action.
And Bodney said the fact that both Finchem and Kern have denied participating in the riot, by itself, is not enough to support their claim that Fernandez knew what she -- and the other Democrats -- were telling federal officials was false.
"Both the innocent and the guilty will deny their culpability for criminal conduct,'' he said. "Neither the law nor common sense required anyone to take plaintiffs' denials at face value.''
A legislative aide to Fernandez said she is paying for her own defense.
No date has been set for a trial.