Rancher James Chilton sued the Center for Biological Diversity for defamation after the Center published on the Internet materials it had submitted to the U.S. Forest Service in opposition to Chilton's application to renew his permit to graze cattle on southern Arizona land. Among the materials the Center posed on its website were misleading photographs with misleading or false captions. The Center posted the materials after appealing the Forest Services' decision to renew Chilton's application and kept the materials on its website for almost a year. The jury awarded Chilton $200,000 in compensatory damages and $500,000 in punitive damages.
On appeal, the Center argued that its publication was privileged under the federal and state constitutions and Arizona common law. The Court of Appeals found that the Center had waived all but its common law claim. The Center raised its federal first amendment defense in its pleadings, joint pretrial statement and its proposed jury instructions. Not enough, said the Court of Appeals, which noted that the Center never raised or discussed the federal constitutional issue in its directed verdict motion and refused to relax the waiver doctrine. The Court also found that the Center was not entitled to an absolute privilege under the common law because the alleged defamatory statement was made on its website, not in the context of a legislative, judicial or administrative proceeding. The Court upheld the jury's findings regarding falsity and malice and found no error in the jury interrogatories or the punitive damages award.
Opinion authored by Judge Brammer, with Judges Espinosa and Howard concurring.