The case involves a letter the Tucson Citizen published Dec. 2, 2003. The author, retired physician Emory Metz Wright Jr., suggested: "Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter."
Three local Muslims sued, accusing the writer and the Citizen of assault and intentionally causing emotional distress. Superior Court Judge Leslie Miller dismissed the assault claim, but let stand the emotional distress claim.
"Reasonable minds could differ in determining whether the publication of the letter rose to the level of extreme and outrageous conduct," Miller wrote.
The Citizen apologized and moved to damage control quickly, as some Tucson Muslims kept their children home from school after the letter was published. The letter writer sent a second letter, saying he was referring to actions in combat zones.
On the surface, the state's high court will have to decide if the letter was merely an extreme political comment or someone advocating an immediate call to violence.
It could be dicey for Citizen attorney David Bodney, whose position is that the letter "falls well short of advocating immediate violence." That may be tough to reconcile with Editor-Publisher Michael A. Chihak's Dec. 6 column apologizing for running the letter.
He said that while the media should promote free expression, there are limits, and publishing Wright's letter was over the line.
"In this instance, the free expression was counterproductive, instilled fear in a group of innocent people and the community at large and carried the potential to incite violence," Chihak wrote.
There's more at stake than just one letter when Bodney and Herbert Beigel square off at ASU. If Beigel prevails, there's a potential precedent for attorneys asking editorial page editors to explain why some letters are chosen and others rejected. And for the acolytes of a newspaper's sanctum sanctorum, that could be some seriously scary stuff.
Considering that the potential profit on coupons from the March 13 Star was only $58.50 (ROI of 3,900 percent on $60 in coupons), maybe the Star should run an A-1 disclaimer that "past performance is not a guarantee of future returns."