Am. Civil Liberties Union, Inc. v. Zeh

• Decision Date: 19 October 2021
• Docket Number: S20G1473
• Citation: 864 S.E.2d 422,312 Ga. 647
• Parties: AMERICAN CIVIL LIBERTIES UNION, INC. v. ZEH.
• Court: Georgia Supreme Court

312 Ga. 647

864 S.E.2d 422

AMERICAN CIVIL LIBERTIES UNION, INC.

v.ZEH.

S20G1473

Supreme Court of Georgia.

Decided: October 19, 2021

John P. Batson, The Law Office of John P. Batson, P.O. Box 3248, Augusta, Georgia 30914-3248, Leslie K. Eason, Tiffany N. Taylor, Gordon Rees Scully Mansukhani, LLP, 55 Ivan Allen Jr. Blvd., NW, Suite 750, Atlanta, Georgia 30308, Sean Jengwei Young, American Civil Liberties Union Foundation of Georgia, Inc., P.O. Box 77208, Atlanta, Georgia 30357, Brian Matthew Hauss, American Civil Liberties Union Foundation, 125 Broad Street, 18th Floor, New York, New York 10004, Andres M. Lopez-Delgado, American Civil Liberties Union Foundation of Georgia, 1100 Spring St., NW Suite 640, Atlanta, Georgia 30309, for Appellant.

Clare Rivka Norins, First Amendment Clinic, University of Georgia School of Law, PO Box 388, Athens, Georgia 30603, Joshua Barrett Belinfante, Robbins Ross Alloy Belinfante Littlefield LLC, 500 14th St., NW, Atlanta, Georgia 30318, for Amicus Appellant.

Brent J. Savage, Kathryn Hughes Pinckney, Savage Turner Pinckney & Savage, 102 East Libery Street P. O. Box 10600, Savannah, Georgia 31401, for Appellee.

David E. Hudson, Hull Barrett, PC, 801 Broad St., Ste 700, Augusta, Georgia 30901, for Other Party.

Nahmias, Chief Justice.

B. Reid Zeh filed a lawsuit alleging that the American Civil Liberties Union, Inc. ("ACLU") had published on its blog a post containing defamatory statements asserting that Zeh, who was the public defender for misdemeanor cases in Glynn County, had charged an indigent criminal defendant a fee for his public defense services. The ACLU moved to strike the defamation lawsuit pursuant to Georgia's anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") statute, OCGA § 9-11-11.1.¹ Zeh then filed two motions requesting discovery. The trial court denied the motion to strike without ruling on Zeh's discovery motions, and the Court of Appeals affirmed the denial of the anti-SLAPP motion in American Civil Liberties Union, LLC v. Zeh , 355 Ga. App. 731, 845 S.E.2d 698 (2020).²

This Court granted the ACLU's petition for certiorari to address what standard of judicial review applies in this situation and whether, under that standard, the trial court erred by denying the anti-SLAPP motion to strike. As explained below, after applying the proper standard of review to the existing record, we conclude that the trial court erred by denying the ACLU's motion to strike. We therefore reverse the Court of Appeals’ decision upholding that ruling. But because the trial court failed to rule on Zeh's requests for discovery, we remand the case to the Court of Appeals with direction that it remand the case to the trial court to rule on the discovery motions and then proceed in a manner consistent with this opinion.

1. The pertinent law and proper standard of judicial review.

As we will discuss in detail in Division 2 below, this case involves an anti-SLAPP motion to strike a defamation claim brought under Georgia law. In certain circumstances, however, the First Amendment to the United States Constitution places substantial limitations on state defamation law. Whether such constitutional limitations apply to Zeh's defamation claim informs the standard by which we review the ACLU's motion to strike that claim, as well as our determination of whether the trial court erred by denying the motion on the current record. We therefore begin by outlining the two-part analysis of an anti-SLAPP motion to strike, the state law and federal constitutional law relating to Zeh's claim for defamation, and the standard of judicial review that applies in this case.

(a) The two-part analysis of an anti-SLAPP motion to strike.

Subsection (b) of the anti-SLAPP statute says in pertinent part:

(1) A claim for relief against a person or entity arising from any act of such person or entity which could reasonably be construed as an act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern shall be subject to a motion to strike unless the court determines that the nonmoving party has established that there is a probability that the nonmoving party will prevail on the claim.

(2) In making the determination as provided for in paragraph (1) of this subsection, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based; provided, however, that if there exists a claim that the nonmoving party is a public figure plaintiff, then the nonmoving party shall be entitled to discovery on the sole issue of actual malice whenever actual malice is relevant to the court's determination under paragraph (1) of this subsection.

OCGA § 9-11-11.1 (b).³

The text of subsection (b) (1) makes clear that the analysis of an anti-SLAPP motion to strike involves two steps. See Wilkes & McHugh, P.A. v. LTC Consulting, L.P. , 306 Ga. 252, 261, 830 S.E.2d 119 (2019). First, the court must decide whether the party filing the anti-SLAPP motion (here, the ACLU) "has made a threshold showing that the challenged claim is one ‘arising from’ protected activity." Id. at 262, 830 S.E.2d 119 (quoting OCGA § 9-11-11.1 (b) (1) ). If so, the court must "decide whether the plaintiff ‘has established that there is a probability that the [plaintiff] will prevail on the claim.’ " Wilkes , 306 Ga. at 262, 830 S.E.2d 119 (quoting OCGA § 9-11-11.1 (b) (1) ).

The parties do not dispute that under the first part of this test, Zeh's defamation claim arises from protected activity. See Wilkes , 306 Ga. at 262, 830 S.E.2d 119 (explaining that a challenged claim arises from protected activity when it could reasonably be construed as fitting within one of the categories set forth in OCGA § 9-11-11.1 (c) ). Thus, the dispositive issue in this case is whether Zeh has met his burden of establishing that there is a probability that he will prevail on his defamation claim.

(b) The state law and federal constitutional law relating to Zeh's defamation claim.

Under Georgia law, a claim for defamation has four elements:

(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.

Mathis v. Cannon , 276 Ga. 16, 20-21, 573 S.E.2d 376 (2002) (citation and punctuation omitted).⁴ As to the third element, a plaintiff's status as a "private" or "public" figure determines the level of fault with which he must prove that the defendant acted. See id. at 21, 573 S.E.2d 376 ; Gettner v. Fitzgerald , 297 Ga. App. 258, 262, 677 S.E.2d 149 (2009).

A plaintiff who is a private figure must establish, as a matter of Georgia law, that the defendant published the allegedly defamatory statements with at least ordinary negligence. See Gettner , 297 Ga. App. at 262, 677 S.E.2d 149. See also Gertz v. Robert Welch, Inc. , 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (explaining that as long as they do not impose liability without fault, "the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual"); Triangle Publications, Inc. v. Chumley , 253 Ga. 179, 180, 317 S.E.2d 534 (1984) (holding, as an issue of first impression under Georgia law, that a publisher who defames a private-figure plaintiff is held to a standard of ordinary care).

Since 1964, however, the United States Supreme Court has held that the First Amendment to the United States Constitution precludes the application of a state-law negligence standard in defamation cases when the plaintiff is a public official. In New York Times Co. v. Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court held 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.

Id. at 279-280, 84 S.Ct. 710. Such actual malice must be proved by clear and convincing evidence. See Gertz , 418 U.S. at 334, 342, 94 S.Ct. 2997 (explaining that in New York Times , the Court "intended to free criticism of public officials from the restraints imposed by the common law of defamation," and that "those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth").

Thus, if Zeh was a private figure at the time he was allegedly defamed, the New York Times standard does not apply (except to his claims for presumed and punitive damages, see footnote 5 below), and to establish fault under Georgia law, Zeh would be required to make a prima facie showing only that the ACLU negligently published the allegedly defamatory statements. On the other hand, if Zeh – as the misdemeanor public defender for Glynn County – was a public official and the ACLU's allegedly defamatory statements related to his official conduct, the more stringent constitutional standard applies. As we conclude in Division 3 below, Zeh was a public official and the ACLU's statements related to his official conduct, so the New York Times actual malice standard requires him to prove by clear and convincing evidence that the ACLU knew that the allegedly defamatory statements were false or made the statements with reckless disregard of whether they were false or not.⁵

(c) The standard of judicial review that applies in this case.

We generally review a trial court's ruling on an anti-SLAPP motion to strike de novo, see Wilkes , 306 Ga. at 263, 830...