WILSON, J., FOR THE COURT:
¶ 1. During a lengthy radio advertisement in support of his campaign for circuit court judge, James K. Littleton stated that the father of one of [his] opponents had conspired with Littletons family to go public with [a] family dispute to derail [Littletons] campaign. Littleton had only two opponents in the election. One opponents father was deceased. The other opponents father was Willie K. Perkins Sr. Perkins perceived that Littletons statement was directed at him, he informed Littleton that the statement was false and demanded a retraction, and he subsequently sued Littleton for defamation.
¶ 2. The Leflore County Circuit Court granted summary judgment for Littleton on the ground that his statement was not clearly and unmistakably directed toward [Perkins]. We affirm the circuit courts ruling but for different reasons. Littletons statement was clearly directed at Perkins because it could not have been directed at anyone but Perkins. In addition, there are factual disputes as to whether the statement was false and whether Littleton knew it was false. Nonetheless, we affirm the circuit courts ruling because, as a matter of law, Littletons statement was not defamatory.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 3. Perkins and Littleton are both practicing attorneys in Greenwood. Perkins is also a state legislator. Littleton is also a justice court judge.
¶ 4. In 2014, Littleton was one of three candidates for circuit court judge in the Fourth Circuit Court District, Place 3. The other two candidates were Perkinss daughter (Takiyah Perkins) and Carol White-Richard.
¶ 5. In August and September 2014 the Greenwood Commonwealth published articles about a lawsuit that Littletons mother and sister had filed against Littleton in the Bolivar County Chancery Court. In the lawsuit, Littletons mother and sister alleged that Littleton had forged deeds related to his deceased fathers estate. As the newspaper articles reported, Littleton denied the lawsuits allegations.
¶ 6. In September 2014, Littleton ran a lengthy advertisement on two local radio stations. In the ad, Littleton stated in part as follows:
This is James Littleton, candidate for Circuit Court Judge of the Fourth District, Place 3. In addressing the story first reported by the Greenwood Commonwealth , Im not surprised that they would report a misleading and half-truth story as they did.
Now, lets get to the whole truth. First, it was reported that I cursed my mother out. The Commonwealth has been armed with this story for two weeks, and the reporter writing this story has interviewed me, recorded me, but has never asked me to respond to this false allegation. I am a child of God and I am obedient to my parents.
Second, they failed to report that I have known about a conspiracy and meeting between my family and the father of one of my opponents for several months where they conspired to go public with this family dispute to derail my campaign. Prior to being contacted by the Commonwealth, my sister sent derogatory and false comments to one of my campaign workers via facebook and stated she supported Takiyah Perkins for Circuit Court Judge.
Im aware of the allegations made by my mother who birthed me into this world and my sister that I forged their signatures on various documents in the handling of my deceased fathers estate several years ago. I love my mother and my sister but I am disappointed in them. These allegations were made by them approximately one year ago well in advance of my decision to run for circuit judge. I want the voters ... to know that these allegations are not true, and that I have not forged the signatures of my mother or sister on any document relating to my fathers estate.
¶ 7. The following day, Perkins sent Littleton a cease-and-desist letter and demand for retraction. Perkins identified the following statement from the ad as false and defamatory: I have known about a conspiracy and meeting between my family and the father of one of my opponents for several months where they conspired to go public with this family dispute to derail my campaign. Perkins asserted that the statement clearly was directed toward him because Littleton knew that White-Richards father was deceased. Perkins asserted that the statement was false because he had never met or spoken to Littletons mother or sister.
¶ 8. According to Littleton, the ad already was scheduled to stop running on or about the day he received Perkinss letter. Littleton did not retract his statement because he says he believed it to be true. Littleton claims that his mother told him that she had met with the father of one of his opponents in an effort to derail his campaign. Littleton also says that his mother did not tell him whose father she met with, and he did not know. Littleton denies that he knew at the time that White-Richards father was deceased, and he denies that his statement was directed at Perkins.
¶ 9. In September 2015, Perkins sued Littleton for libel, slander, and defamation. Littleton answered and subsequently filed a motion to dismiss or for summary judgment. Littleton argued that Perkins could not prove defamation because the statement in the radio ad was not clearly directed at Perkins. Littleton also argued that the alleged defamation was not clear and unmistakable on its face and that Perkinss claim was based on innuendo, speculation, and conjecture. Littletons motion references several attached exhibits, including Littletons affidavit, but those exhibits do not appear to have been filed in the circuit court.
¶ 10. In response, Perkins argued that Littletons comments clearly were directed toward him because Littleton knew that White-Richards father was deceased. In an affidavit, Perkins stated that Littleton was present when White-Richard stated that her father was deceased during a speech at a July 2014 meeting of the Greenwood Voters League. Perkins also submitted White-Richards fathers obituary, which shows that he passed away on November 17, 2013, ten months before Littleton ran his ad. Perkins also submitted affidavits from three other Leflore county residents who heard Littletons ad. All three knew that Littletons comment was directed at Perkins because they knew that White-Richards father was deceased.
¶ 11. Perkins also argued that Littleton knew that his statement was false. In support, Perkins submitted affidavits from Littletons mother, Bonnie Littleton, and sister, Melaney Littleton Phillips. Both women stated that they had never met or talked to Perkins or conspired with Perkins to derail Littletons campaign. In addition, Bonnie Littleton specifically denied that she had ever told Littleton that she met with the father of one of his opponents. Bonnie Littletons affidavit states: This sworn statement by my son is a complete falsehood. I never made any such statement to my son.
¶ 12. In rebuttal, Littleton submitted an affidavit from Emma Bell stating that she heard Littletons mother tell him that she had met with the father of one of Littletons opponents. Bell further stated that she did not know that White-Richards father was deceased and, thus, did not know whom Littletons mother was talking about. Bells affidavit also asserts that Bonnie Littleton is a known liar.
¶ 13. Following a hearing, the circuit court found that the allegedly defamatory statement was not clearly and unmistakably directed toward [Perkins]. The court reasoned that the particular statement did not specifically name [Perkins] or his daughter, and although some listeners may have believed the statement was about [Perkins], the statement by itself was insufficient to establish a claim of slander. Accordingly, the court granted Littletons motion for summary judgment. Perkins thereafter filed a timely notice of appeal.
ANALYSIS
¶ 14. On appeal, Perkins argues that the circuit court erred by granting Littletons motion for summary judgment. Perkins specifically argues that the circuit court erred by treating his claim as a claim for slander rather than libel and by ruling that a defamatory statement must refer to [the plaintiff] by name. Perkins also argues that Littleton effectively accused [him] of a criminal conspiracy. Finally, Perkins argues that the circuit court erred by denying as moot his motion for leave to conduct additional discovery and his motion to compel the Greenwood Commonwealth to respond to a subpoena. Littleton responds to Perkinss arguments and additionally argues that the circuit courts ruling was correct because Perkins is a public figure and cannot prove actual malice. In his reply brief, Perkins argues that Littleton waived the public figure issue because he did not raise the issue in the circuit court.
¶ 15. As we explain below, we conclude that the statement was clearly directed at Perkins, and there are factual disputes as to whether the statement was false and whether Littleton knew it was false. However, we affirm because we conclude, as a matter of law, that the statement was not defamatory. See Stroud v. Progressive Gulf Ins. , 239 So.3d 516, 526 (¶ 31) (Miss. Ct. App. 2017) (This Court may affirm a circuit court if the correct result is reached, even if the circuit court reached the correct result for the wrong reasons. (brackets and internal quotation mark omitted) ). Therefore, we need not address the various additional issues raised by the parties on appeal. See Fulton v. Miss. Publishers Corp. , 498 So.2d 1215, 1216 (Miss. 1986) (The threshold question is whether the statement made was defamatory, for if the statement was not defamatory, little else matters. (citation omitted) ).
I. Littletons statement was clearly directed toward Perkins.
¶ 16. The Mississippi Supreme Court has stated that [t]wo restrictions upon the action for defamation are and must be strictly enforced. Ferguson v. Watkins , 448 So.2d 271, 275 (Miss. 1984). First, the words employed must have clearly been directed toward the plaintiff. Id. Second, the defamation must be clear and unmistakable from the words themselves and not be the product of innuendo, speculation or conjecture. Id.
¶ 17. The circuit court granted summary judgment based on the first of these two restrictions, finding that Littletons statement was not clearly and unmistakably directed toward [Perkins]. The circuit court emphasized that Littleton did not specifically name [Perkins] or his daughter. However, we agree with Perkins that the statement was clearly directed at him and that the circuit court erred by finding otherwise.
¶ 18. To begin with, the circuit courts description of Littletons statement is accurate only in a narrow and technical sense. Although Littleton did not name Perkins or his daughter within the specific statement that Perkins considers defamatory, he did name Perkinss daughter in the very next sentence of the same radio ad. Moreover, Littleton named only Takiyah Perkins and not his other opponent in the election. Arguably, this was sufficient by itself to clearly direct the statement at Willie Perkins. See Lawrence v. Evans , 573 So.2d 695, 698 (Miss. 1990) (The said-to-be-offending words must be set in the context of the entire utterance. Their complexion draws color from the whole.).
¶ 19. However, we need not decide whether Littletons reference to Perkinss daughter is sufficient, standing alone, to show that Littletons statement was clearly directed at Perkins. It is unnecessary to decide that issue because the summary judgment record shows that-as a matter of objective and undisputed fact-Littletons statement could not have been directed at anyone but Perkins . As discussed above, there is no dispute that White-Richards father was deceased. Thus, when Littleton said that "the father of one of [his]
opponents had conspired" with his family, Perkins was the only person that Littleton could have been talking about.
¶ 20. We agree with Perkins that a statement may be clearly directed toward the plaintiff even if it does not designate the plaintiff by name. As the Mississippi Supreme Court has explained,
Extrinsic facts may make it clear that a statement refers to a particular individual although the language used appears to defame nobody. It is not necessary that everyone recognize the [plaintiff] as the person intended; it is enough that any recipient of the communication reasonably so understands it.
Conroy v. Breland , 185 Miss. 787, 796, 189 So. 814, 815 (1939) (quoting Restatement (First) of Torts § 564 cmt. b (1938) ); see also Montgomery Ward & Co. v. Skinner , 200 Miss. 44, 58, 25 So.2d 572, 575 (1946) ([I]t was competent for the plaintiff to prove such additional facts and circumstances as would throw light on the question as to whether or not the third persons present would reasonably understand that the speaker intended to reflect upon her.).
¶ 21. More recently, in McCullough v. Cook , 679 So.2d 627 (Miss. 1996), the Supreme Court considered a defamation claim based on a sheriffs statement to a reporter that a truck with a particular license tag number had been confiscated in a drug bust. See id. at 630-31. The Court held that the sheriffs statement was actionable because a jury could find that the sheriff knew that (1) tag records would show the plaintiff as the registered owner of the truck, and (2) the reporter likely would run a check on the tag number and publish the plaintiffs name as the owner of the vehicle, but (3) the plaintiff had actually sold the truck weeks before the drug bust. See id. at 631. Significantly, the Court held that the sheriffs statement was actionable even though he did not use the plaintiffs name. See id. at 629-30 ; see also Mitchell v. Random House Inc. , 703 F.Supp. 1250, 1256 (S.D. Miss. 1988) (recognizing that statements in a book were clearly directed at the plaintiff even though she was referred to only as the sister of another person and never identified by name), affd , 865 F.2d 664 (5th Cir. 1989).
¶ 22. As a federal district court in Mississippi has stated, It is generally recognized ... that a plaintiff need not be mentioned by name so long as he is pointed to by description or other circumstance tending to identify him as an object of the defamatory language. Gales v. CBS Broad. Inc. , 269 F.Supp.2d 772, 780 (S.D. Miss. 2003) (internal quotation mark omitted), affd , 124 F. Appx 275 (5th Cir. 2005). In addition, the Restatement (First) of Torts and Restatement (Second) of Torts both state that [i]t is not necessary that the plaintiff be designated by name; it is enough that there is such a description of or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended. Restatement (First) of Torts § 564 cmt. b (1938); Restatement (Second) of Torts § 564 cmt. b (1977). Many other authorities support this rule.
¶ 23. Applying this rule, it is clear that Littletons statement was directed toward Perkins. As discussed above, based on Littletons statement and the objective and undisputed facts, the statement could not have been directed at anyone but Perkins. Moreover, Perkins provided additional evidence in the form of three affidavits of residents of the community who heard the advertisement and immediately knew that Littleton was talking about Perkins. See 3 Dan B. Dobbs et al., Law of Torts § 528 (2d ed. 2011) (One type of admissible extrinsic evidence is the declaration by a witness that he was a recipient of the publication and that he understood it as referring to the plaintiff.). This was more than sufficient to meet Perkinss burden of showing that the statement was directed at him. See Conroy , 185 Miss. at 796, 189 So. at 815.
¶ 24. Littleton also makes an alternative argument that the circuit courts ruling should be affirmed because he himself did not know that his statement was directed at Perkins. Littleton claims that all he knew was what his mother told him, which was that she had met with the father of one of his opponents. However, Littletons argument fails because he relies on facts that are in dispute. In an affidavit, Littletons mother denied that she made the statement that Littleton attributes to her. In addition, Perkinss affidavit states that Littleton was present when White-Richard stated that her father was deceased.
¶ 25. Moreover, Perkinss argument also fails because there is no requirement that the defendant actually intend to refer to the plaintiff. Dobbs, supra , § 527. Rather, the issue is whether a hearer would reasonably believe that the statement refers to the plaintiff. Id. ; accord Restatement (Second) of Torts § 564 cmt. b (1977) (If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is not decisive that the defamer did not intend to refer to him.); Elder, supra , § 1:30 (The cases generally reject any suggestion that defendants intent ... is controlling. (collecting cases) ). Put simply, a speaker cannot defame an identifiable person and then avoid liability by claiming that he himself did not know whom he was defaming.
II. Though clearly directed toward Perkins, Littletons statement was not defamatory.
¶ 26. In the procedural life of a defamation suit, the court determines whether the statement bears the meaning ascribed to it by the plaintiff and whether this meaning is defamatory. Fulton , 498 So.2d at 1216. If the court decides against the plaintiff on either of these questions, the case is ended. Id. Subject to our normal standards, the question whether said-to-be-offending words are defamatory may be decided by the Court without submission to the trier of fact. Lawrence , 573 So.2d at 697.
¶ 27. There is a difference between making a false statement about another person and making a defamatory statement. The latter requires more than mere error. Id. [Our Supreme] Court has described a defamatory statement as any written or printed language which tends to injure ones reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community. Journal Publg Co. v. McCullough , 743 So.2d 352, 360 (¶ 24) (Miss. 1999) (brackets and internal quotation marks omitted). The said-to-be-offending words must be set in the context of the entire utterance. Their complexion draws color from the whole. Lawrence , 573 So.2d at 698.
¶ 28. [T]he defamation must be clear and unmistakable from the words themselves and not be the product of innuendo, speculation or conjecture. Journal Publg Co. , 743 So.2d at 360 (¶ 24). If the hearer must struggle to see how and whether they defame, by definition the words are not defamatory in law. Words which may be found defamatory only with the aid of a most vivid imagination are not actionable. Lawrence , 573 So.2d at 698 (internal quotation marks omitted).
¶ 29. The words at issue in this case consist of an accusation that Perkins met and conspired with Littletons family to go public with [a] family dispute to derail [Littletons] campaign. The family dispute centered around a lawsuit in chancery court in which Littletons mother and sister alleged that Littleton had forged documents related to his fathers estate. The lawsuit had been pending-and, thus, the allegations against Littleton had been a matter of public record-for about a year when they were reported in the local newspaper during Littletons campaign for circuit judge. As Littletons radio ad stated, the family dispute arose well in advance of [Littletons] decision to run for circuit judge. Littleton stated that his mothers and sisters allegations against him were false, but Littleton has never stated or implied that Perkins was responsible for those allegations or that Perkins played any role in initiating the family dispute. To the contrary, in the context of the entire utterance, Littletons only statement directed at Perkins was that Perkins had conspired to bring a pending lawsuit to the attention of the newspaper and the public.
¶ 30. In context, Littletons statement was not defamatory. The essence of the allegedly defamatory words was that Perkins conspired to tell a newspaper reporter about a pending lawsuit-a matter of public record-in order to derail Littletons campaign. It is undoubtedly common for political candidates and their supporters to feed the press information about their political opponents. They often do so in an effort to derail the opponents campaign. This is part of what has become known as opposition research. It is possible for such tactics to involve conduct that is unethical. However, it is not inherently defamatory to assert that a person sought to obtain a political advantage by telling a reporter about a matter of public record involving a candidate for public office. In substance, that is all that Littleton said about Perkins.
¶ 31. Perkins takes particular offense at Littletons use of the term conspiracy. Indeed, Perkins argues that we should interpret Littletons statement as an accusation that Perkins was a member of a criminal conspiracy. However, this is hardly the clear and unmistakable import of the words themselves. Journal Publg Co. , 743 So.2d at 360 (¶ 24). A claim for defamation cannot be based on innuendo, speculation or conjecture, id. , or a vivid imagination, Lawrence , 573 So.2d at 698. [B]y definition, words are not defamatory in law if we must struggle to see how and whether they defame. Id. On its face, Littletons statement does not accuse Perkins of any criminal activity. Nor does the statement clearly or unmistakably imply that Perkins committed a crime. Accordingly, we cannot attribute that meaning to it.
¶ 32. Moreover, the First Amendment protects imaginative expression or rhetorical hyperbole when such statements cannot reasonably be interpreted as stating actual facts about an individual. Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (brackets and internal quotation mark omitted). For example, in Greenbelt Cooperative Publishing Association v. Bresler , 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), the Supreme Court held, as a matter of constitutional law, that statements characterizing a developers negotiating tactics as blackmail could not support a claim for defamation. The Court reasoned that, in context, no one could have interpreted the statements as charging [the developer] with the commission of a criminal offense. Id. at 14, 90 S.Ct. 1537. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developers] negotiating position extremely unreasonable. Id.
¶ 33. Similarly, in Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin , 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), the Court held that a union newsletters characterization of non-union workers as traitors could not support a claim for libel. See id. at 283-86, 94 S.Ct. 2770. Following the reasoning of Bresler , the Court held that it was impossible to believe that any reader ... would have understood the newsletter to be charging the [traitors] with committing the criminal offense of treason. Id. at 285, 94 S.Ct. 2770. Rather, the term was merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join. Id. at 286, 94 S.Ct. 2770 ; see also, e.g. , Ollman v. Evans , 750 F.2d 970, 1005 (D.C. Cir. 1984) (Bork, J., concurring) ([In Bresler and Austin , the Supreme Court] assumed that even if these statements were made with actual malice, they were protected because the context in which they appeared alerted the reader that the statements were not to be read as factual allegations.); Pullum v. Johnson , 647 So.2d 254, 258 (Fla. Dist. Ct. App. 1994) (holding that in the context of a speech criticizing the defendant for supporting an amendment to a local ordinance to allow the sale of liquor, the plaintiffs description of the defendant as a drug pusher was only rhetorical hyperbole and could not be understood as accusing the defendant of an actual crime).
¶ 34. Likewise in this case, no reasonable listener would have understood the radio ads brief reference to Perkins as charging him with a crime. At most, the statement alleged that Perkins had, for political reasons, told a newspaper reporter about an ongoing lawsuit against Littleton. But even assuming that this statement was false, it was not defamatory.
¶ 35. Not every false statement about another person rises to the level of a defamatory statement. Lawrence , 573 So.2d at 697. [M]any demonstrably unfair linguistic slings and arrows are not actionable. Ferguson , 448 So.2d at 276. Mississippi law does not assess damages for all bruised feelings. Id. Littletons brief reference to Perkins as the unnamed father of one of my opponents did not expose Perkins to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community. Journal Publg Co. , 743 So.2d at 360 (¶ 24). At worst, it was an untrue statement that, for political reasons, Perkins told a local reporter about a pending lawsuit involving a candidate for public office. As a matter of law, the statement was not defamatory. Accordingly, we affirm the final judgment of the circuit court granting summary judgment in favor of Littleton.
¶ 36. AFFIRMED.
LEE, C.J., GRIFFIS, P.J., BARNES, FAIR, GREENLEE AND TINDELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., NOT PARTICIPATING.
We quote the transcript of the ad that is in the record with only minor alterations to its punctuation.
Defamation is divided into two torts, including libel for written defamations and slander for oral ones. Funderburk v. Johnson , 935 So.2d 1084, 1101 (¶ 45) (Miss. Ct. App. 2006). According to the Restatement (Second) of Torts , Broadcasting of defamatory matter by means of radio or television is libel, whether or not it is read from a manuscript. Restatement (Second) of Torts § 568A (1977). It does not appear that this issue has been decided under Mississippi law, and we need not decide it in this case.
The Greenwood Commonwealth filed a motion to quash the subpoena in the circuit court. However, Perkinss notice of appeal failed to designate the newspaper as a party against whom the appeal [was] taken. M.R.A.P. 3(c). Moreover, there is no indication that Perkins served the newspaper with a copy of his notice of appeal, and the newspaper did not file a brief on appeal. Therefore, we doubt that the issue of the subpoena is properly before us on appeal. See, e.g. , Estate of Perry ex rel. Rayburn v. Mariner Health Care Inc. , 927 So.2d 762, 765 (¶ 8) (Miss. Ct. App. 2006) (Pursuant to Rule 3(c), our review is limited to those parties named in an appellants notice of appeal.). In any event, the issue is moot based on our determination that Littletons statement was not defamatory.
See New York Times Co. v. Sullivan , 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (holding that the First Amendment prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice-that is, with knowledge that it was false or with reckless disregard of whether it was false or not).
See, e.g. , 1 Rodney A. Smolla, Law of Defamation § 4:40 (2d ed. 1999) (The plaintiff need not be cited by name for the defamation to be of and concerning him. (collecting cases) ); David Elder, Defamation: A Lawyers Guide § 1:30 (2008) (stating that it is well established that the plaintiff need not be specifically named in the defamatory statement (collecting cases) ); Doe v. Hagar , 765 F.3d 855, 862-63 (8th Cir. 2014) ([T]he plaintiff need not be named if the alleged libel contains matters of description or other references therein, or the extraneous facts and circumstances show that plaintiff was intended to be the object of the alleged libel, and was so understood by others. (alteration omitted) ); Croixland Props. Ltd. Pship v. Corcoran , 174 F.3d 213, 216 (D.C. Cir. 1999) ([I]t suffices that the statements at issue lead the listener to conclude that the speaker is referring to the plaintiff by description, even if the plaintiff is never named ....); Alvord-Polk Inc. v. F. Schumacher & Co. , 37 F.3d 996, 1015 (3d Cir. 1994) (The law does not require that a plaintiff be specifically named in an allegedly defamatory statement, for a statement might be defamatory if, by description or circumstances, it tends to identify the plaintiff as its object.).
For the same reason, we also reject Littletons argument that he is entitled to summary judgment because Perkins cannot prove[ ] that the statement was made with actual malice-that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times Co. , 376 U.S. at 279-80, 84 S.Ct. 710. Littleton claims that he believed his statement to be true because he simply repeated what his mother told him. However, his mothers unequivocal denial creates a factual dispute and permits an inference that Littleton knew that the statement was false.
In Austin , because the Court held that the publication ... was protected under the federal labor laws, it was unnecessary for the Court to address the defendants argument that their speech was also protected by the First Amendment. Austin , 418 U.S. at 283 n.15, 94 S.Ct. 2770. However, the Court relied on and followed Bresler s constitutional analysis. See Austin , 418 U.S. at 284-86, 94 S.Ct. 2770.