Failed Arizona gubernatorial candidate Kari Lake says that it doesn’t matter whether the statements she made about Maricopa County Recorder Stephen Richer are false and his defamation lawsuit against her should be tossed out of court because of a state law curtailing public officials from suing their critics.
In a motion filed on Monday, Lake asked Maricopa County Superior Court Judge Jay Adleman to dismiss Richer’s suit because she says it violates Arizona’s Strategic Action Against Public Participation law, commonly referred to as an anti-SLAPP statute.
“An Anti-SLAPP motion is not an attempt to adjudicate falsity, but to avoid the burden of having to justify statements concerning core political speech,” Lake said in the filing.
Lake and her lawyers said in the filing that Richer’s suit should be dismissed because he is a “state actor” who brought the suit to “deter, retaliate against, and prevent Defendants’ lawful exercise of their free speech rights on the core public issue of election integrity.”
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While Richer filed the suit as a private citizen, Lake and her lawyers argued that, because the content of the suit revolves around his work as Maricopa County recorder, he should still be considered a “state actor.”
But Craig Morgan, a Phoenix lawyer who represented Secretary of State Adrian Fontes in Lake’s suit challenging the election, says he believes that Lake’s motion stretches the intended purpose of the anti-SLAPP statute.
“I think it’s a stretch to say that a public officer standing up for his or her reputation is doing so to stop someone from engaging in political speech,” he said.
Morgan said he believes that Richer’s lawsuit will survive the motion to dismiss.
“You could arguably read this as a desperate maneuver,” Morgan said. “I don’t agree that this is the kind of situation that anti-SLAPP laws are meant to deter or remedy, I just don’t.”
Lake is represented in the filing by Tim La Sota, who has previously represented Lake; former Assistant Arizona Attorney General Jennifer Wright; and the Arizona State University Sandra Day O’Connor College of Law First Amendment Clinic.
Gregg Leslie, the executive director of the First Amendment Clinic, told the Arizona Mirror that the clinic is only representing Lake in her motion to dismiss, not in any other part of this case or in any of her other suits attempting to overturn the 2022 election.
I think it’s a stretch to say that a public officer standing up for his or her reputation is doing so to stop someone from engaging in political speech. You could arguably read this as a desperate maneuver.
– Phoenix attorney Craig Morgan
Leslie, along with another staff attorney and ASU law students in the clinic, “made the decision to represent her because her case raised an important First Amendment-related issue, specifically whether it should be dismissed under the anti-SLAPP statute because it is an effort from a public official to interfere with her free speech rights,” Leslie wrote in an email to the Mirror. “We’re a First Amendment Clinic, and this is a First Amendment issue.”
Leslie added that Wright and La Sota, who are both election attorneys, didn’t have much experience with free speech issues and anti-SLAPP statutes that attorneys with the First Amendment Clinic had, so the clinic came onboard to help.
Both Lake and Richer are Republicans, but they have spent ample time over the past year trading barbs on X, the site formerly known as Twitter, with Richer bearing the brunt of Lake’s conspiracy theories about election integrity in Maricopa County.
Richer was a favorite target for Lake’s during her campaign for governor, but she amped up the vitriol after she lost the race for governor to Democrat Katie Hobbs by 17,000 votes in November 2022.
In his suit, Richer accuses Lake, along with her campaign and the Save Arizona Fund, a dark money nonprofit that Lake controls and that has raised untold sums of money to fund her legal efforts to overturn the 2022 election, of making false claims that he sabotaged the election to keep Republican candidates like Lake from winning.
The suit specifically focuses on Lake’s claim that Richer “intentionally printed 19-inch images on 20-inch ballots to sabotage the 2022 general election,” resulting in 300,000 “illegal, invalid, phony or bogus” early ballots being counted in Maricopa County. She has made the claims on social media and at public events.
Although Lake has used the claim in her lawsuits aiming to reverse her loss to Gov. Katie Hobbs last year, the Maricopa County Superior Court, the Arizona Court of Appeals and the Arizona Supreme Court have all said there is no evidence supporting the assertion, and the claims were all dismissed. But Leslie wrote in the filing that those dismissals aren’t relevant.
“Even if judges in other actions in this controversy have held that Lake failed to present sufficient evidence of fraud to prevail in a claim…she is still entitled to have an opinion and state her beliefs about what happened in the 2022 election and who is to blame for mistakes,” Leslie wrote.
Because of Lake’s lies, Richer has faced daily hate and threats of violence, in the form of emails, direct messages on Twitter, voicemails and i- person confrontations, Richer’s lawyer Daniel Maynard wrote in the suit.
Richer also claims that he and his wife have spent thousands of dollars to install new security features in their home and that local law enforcement now do regular patrols at their home and Richer and his wife’s workplaces.
Because he’s a public figure, Richer would have to clear a high bar to win the defamation suit against Lake. He must prove that, not only did Lake publicly make false statements about him and knew they were false or acted recklessly in regards to whether they were true or false, but also that she made those claims with actual malice.
Even if judges in other actions in this controversy have held that Lake failed to present sufficient evidence of fraud to prevail in a claim…she is still entitled to have an opinion and state her beliefs about what happened in the 2022 election and who is to blame for mistakes.
– Kari Lake’s attorneys in her motion to dismiss
But Lake’s Monday motion to dismiss aims to stop the suit before it even gets to the point of determining whether her statements were truthful. Lake and her lawyers argue that the truth of her statements don’t matter, according to the anti-SLAPP statute.
“Furthermore, ‘falsity’ is almost never a black-and-white issue, and even a court decision finding insufficient evidence to support a fraud claim to challenge election results is not a finding that the statements are objectively false and cannot be the basis of an opinion about the fairness of an election,” they wrote.
If the judge agrees with Lake, then Richer will have to demonstrate that his suit is based on “clearly established law” and that “he did not act in order to deter, prevent or retaliate against the moving party’s exercise of constitutional rights.”
Lake claims in her filing that, by requesting compensatory and punitive damages and attorney fees, as well as asking that all false posts be removed from her social media and websites, Richer is retaliating against Lake for using her right to free speech.
“Richer certainly has the right to publicly dispute Defendants’ speech,” Leslie wrote. “However, (Arizona law) does not allow him to bring this lawsuit in an attempt to punish or silence such speech simply because he disagrees with it. In fact, Richer’s own public statements about this lawsuit shows that his intention is to violate Kari Lake’s right to free speech.”
Lake and her lawyers base that claim on Richer’s June 22 post on X that reads, in part, “So I’m suing Kari Lake to hopefully put an end to the false statements.”
Richer’s lawyers, including Jared Davidson of Protect Democracy, were in the process of reviewing Lake’s filing on Tuesday.
“We look forward to filing our response with the court,” Davidson said.
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