- The Washington Times - Monday, September 20, 2004

PHOENIX (AP) — The letter to the editor was printed more than nine months ago, but its effect is still reverberating through Arizona.

The Dec. 2 letter in the Tucson (Ariz.) Citizen made a suggestion on how to end “the horror” of American soldiers being killed in Iraq: Go to the nearest mosque and kill five Muslims.

In response, fearful Muslims kept their children home from religious school. The Gannett Company newspaper received numerous protest letters from readers, issued an apology, and sent staff members to meet with members of a local mosque.

Then the controversy moved to the courts.

Two men on Jan. 13 filed a class-action lawsuit against the newspaper on behalf of Islamic-Americans, and the Arizona Supreme Court is being asked to decide whether to overturn a trial judge’s ruling allowing the newspaper to be sued for alleged distress caused by what it printed.

The newspaper argues that its First Amendment rights protect it from such lawsuits, but the plaintiffs contend that the newspaper, by choosing to publish the letter, crossed the line.

“You can express your opinion but not — especially with what’s going on in the Middle East — if you put some people’s lives at risk,” said plaintiff Aly Elleithee, an accountant and immigrant from Egypt. “Somebody has to be accountable for what they did.”

The Citizen argues that the most fundamental of First Amendment freedoms — the right to engage in robust political debate — is at stake.

“If the trial court’s ruling is allowed to stand, political speech that falls well short of advocating immediate violence may be subject to sanction in Arizona — making this state a uniquely risky jurisdiction in which to publish news and commentary,” the Citizen’s lawyers wrote in the appeal.

Without any immediate physical threat to anyone, publication of the letter is constitutionally protected, the newspaper’s appeal said.

Attorney Herbert Beigel argued, however, that publishing the letter was not constitutionally protected because the letter “was a direct call to violence against innocent Islamic-Americans.”

Judge Leslie Miller of Pima County Superior Court in Tucson, Ariz., on May 10 granted the Citizen’s request to dismiss an assault count in the original lawsuit, but allowed the lawsuit’s claim of intentional infliction of emotional distress to stand. Pretrial fact-finding is now on hold while the ruling is appealed.

“Clearly, reasonable minds could differ in determining whether the publication of the letter rose to the level of extreme and outrageous conduct,” Judge Miller wrote.

An administrator of the Islamic Center of Tucson said many members of the mosque were alarmed when the letter was published, but since have been satisfied with the newspaper’s response.

“We were all keeping our fingers crossed and doing a lot of praying,” Muhammad As’ad said. “There are a few loose cannons out there, but, fortunately, nothing happened.”

In a Dec. 6 column apologizing for the newspaper’s decision to print the letter, Publisher and Editor Michael A. Chihak said the letter’s author had written a second letter to clarify that his comments referred only to military actions in combat zones.

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