"'Ass-Hat' Is a Word That Has No Meaning. It Is Just an Epithet"

From McCarthy v. Harris, 2021 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, nearing 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 allege[d] 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 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 "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, labelling McCarthy's "like Antifa" could be heard as suggesting he 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….

Comments

[Bob from Ohio]

"Ass-hat" is a word that has no meaning."

No dictionaries available?

asshat noun
ass·​hat | \ ˈas-ˌhat
plural asshats
Definition of asshat
vulgar slang
: a stupid, annoying, or detestable person : asshole

[DaivdBehar]

Again. The clerk of court should be authorized to dismiss with prejudice claims that do not contain the necessary damages and elements.

I know dueling is illegal. But a boxing exhibition between the parties seems proper.

[Michael P]

My sense was that the court meant it had no specific enough meaning to be factually false, and thus it is nonjudiciable opinion rather than actionable defamation.

[Armchair Lawyer]

Oh Bob, you can do so much better in terms of definitions.

asshat
One who has their head up their ass. Thus wearing their ass as a hat. Asshat.

asshat
A person, of either gender, whose behavior displays such ignorance/obnoxiousness that you would like to make them wear their own ass as a hat.

asshat
describing when one's head is so far up one's ass that one is wearing the ass as a hat. in other words, extreme stupidity.

asshat
a person suffering from acute cranial-rectal inversion.

asshat
A close cousin of the Ass-clown, typically identified by a jovial expression and an outward misunderstanding of how he/she is perceived, combined with a generally misguided conception of what is sociably acceptable amongst his/her fellow peers.

asshat
The inability to process mental reasoning or common sense. Thus wearing your ass as a -10 Intelligence hat.

[Michael D]

Politics makes people stupid.

[Anon Y. Mous]

An asshat is someone who wears their ass for a hat. In other words, they have their head up their ass.

Perhaps not meant to be taken literally.

[Jimmy the Dane]

I think the script writers for Office Space might need to be called an expert witnesses....

[Ridgeway]

I thought they referred to "no-talent ass-clowns."

[Jimmy the Dane]

You know, you are right. I thought it was "no talent ass hat". Been awhile since I have seen that movie....

[Michael P]

Does "ass-clown" have a real meaning? Is it more than just an epithet?

[Longtobefree]

"Ass-hat" is a word that has no meaning. It is just an epithet.

Like "Assault Rifle"?

[Jimmy the Dane]

I wonder if resident Ass Hat AK will chime in as he certainly should take offense to being called a "non-word"....

[David Nieporent]

Assault rifle has a specific meaning. You meant to reference "assault weapon."

[Jimmy the Dane]

No it doesn't. Was just made up by the left much like "Juneteenth".

[Sarcastr0]

'Allow me to support my hot take with a hotter take' is a bold move.

[ReaderY]

While the term may well be opinion, it has a meaning. Poo-Bah in Gilbert and Sulliven was a highly officious, grandiose individual who held almost all the offices in the country. A running joke was that he wore a different hat for each office and changed them frequently as he was talking, which is where the phrase wearing different hats comes from.

Now imagine one of those hats to be the hat of an ass. Bring to your mind the Grand Pooh-bah in his ass hat.

That’s pretty much what it means.

[Bob from Ohio]

"Poo-Bah in Gilbert and Sulliven"

I always though that was from the The Flintstones.

[ReaderY]

It’s a fair cop. Poo-Bah really did come from Gilbert and Sullivan. But by the time The Flintstones came around in the early 1970s, the term had come to mean a self-important and officious individual, so Bill Hanna and Joe Barbara chose “Grand Poobah” as the title for Sam Slagheap as head of The Loyal Order of Water Buffalos. So “Grand Pooh-Bah did come later.

[ReaderY]

Sorry the early 1960s.

[Xenantaya]

I'm surprised at the number of statements the court found actionable. Most of these seem to me to be more like opinion. I'd say of all the listed statements, the following statements are facts, and that's about it (1) McCarthy attacked Harris. [If clear from context this was a physical attack]; (2) "McCarthy 'told people he would put a million dollars' into his campaign and that 'he was nowhere close; (3) "McCarthy recently created a new political party and named it the ' Guerilla Party."' [I question whether this would be defamatory, but at least court gives some reasoning at to why it would be in the circumstances here]

But statements like (a) McCarthy "promotes violence" and is a "thug" and (b) McCarthy "engages in hostile and violent behavior," seems like non-factual rhetoric. For example, Eric Greitens put out a "hunting RINOs" video today that people (at least people on Twitter) say promotes violence and violent behavior. Can Greitens now sue anyone who says that? More generally, people saying X's speech promotes violence have almost become commonplace, and there could be a lot of defamation suits if that language were actionable.

Anyway, you sometimes hear from actual lawyers on Twitter (such as Popehat) that certain statements clearly aren't defamatory. The opinion here is a reminder that some judges are willing to expand the scope of defamation beyond what knowledgeable lawyers think it should be.

[Life of Brian]

For example, Eric Greitens put out a "hunting RINOs" video today that people (at least people on Twitter) say promotes violence and violent behavior. Can Greitens now sue anyone who says that?

Sorta depends on whether the video was directed to clubs and rifles as opposed to campaigns and ballot boxes, no?

[David Nieporent]

No.

(Also, in this case; it was directed to rifles.)

[Life of Brian]

No.

Now that's some weapons-grade persuasion.

(Also, in this case; it was directed to rifles.)

Good one, Too-Clever. The actual video (as opposed to breathless characterizations of it in whatever rags you consume) is here.

Show me someone who genuinely believes the man was advocating (in a campaign ad, for crying out loud) to send SWAT teams to the houses of his political opponents to ventilate them -- as opposed to, oh I don't know, vote for him rather than them -- and I'll show you someone who is several eggs short of a dozen.

[NOVA Lawyer]

I agree, Xenataya. I found most of the statements, including a lot of the ones about "promotes violence" to be highly questionable as provable or disprovable statements of fact. (Tongue only slightly in cheek, given McCarthy is a Trump-supporting Republican, it is highly doubtful he hasn't said something Trump-like which his supporters will claim doesn't "promote violence" but which at least in some sense of "promote" does, like: "I'll pay your legal bills if you assault that protester" or "I wish it was the good old days when protesters were taken out on stretchers" (quotes contain paraphrases as I am too uninterested to look up the actual quotes, but that was the gist).

McCarthy "publicly brags about his vast wealth."
"McCarthy 'claims to have so much money."'

I suppose these are, in some sense, provably true or false. But I think so long as McCarthy has ever mentioned he is wealthy or made a lot of money or even is very fortunate or secure financially, what else? Whether that is "bragging" or "claiming to have so much money" is really an opinion, eye-of-the-beholder type thing. Not, I would hope, the stuff of a successful defamation lawsuit. No love for Harris here. He seems like probably an asshat too.

As an attorney, I appreciate the support, but not everything needs to be solved in a courtroom.

[David Nieporent]

Anyway, you sometimes hear from actual lawyers on Twitter (such as Popehat) that certain statements clearly aren't defamatory. The opinion here is a reminder that some judges are willing to expand the scope of defamation beyond what knowledgeable lawyers think it should be.

While I generally agree with your comments, just as a caution, remember that this was a motion to dismiss. The court did not rule that these were defamatory — just that they were capable of being defamatory.

[not guilty]

https://www.urbandictionary.com/define.php?term=asshat