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On July 23, 2020, the First Amendment Clinic filed an amicus brief in the matter of ACLU v. Zeh urging the Georgia Supreme Court to correct a speech-chilling error that dangerously weakens First Amendment protections under Georgia’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) statute.  With the Clinic representing fellow amici curiae the Georgia First Amendment Foundation and the University of Virginia (UVA) School of Law’s First Amendment Clinic, amici argue that the lower court in Zeh failed to apply the “actual malice” standard in deciding whether a defamation lawsuit survives a motion to strike under the anti-SLAPP statute.

Amicus Brief in ACLU v. Zeh

Case background:  In connection with legal filings in a class action challenging Glynn County, Georgia’s detention of people charged with crimes who are unable to pay bail, the ACLU made statements about alleged unlawful conduct by a part-time public defender, B. Reid Zeh, with respect to one of his former criminal defense clients. The statements were based on the sworn declarations of the former client and the client’s mother.  Zeh sued for defamation and the ACLU moved to strike under Georgia’s anti-SLAPP statue and O.C.G.A. § 51-5-7 (enumerating certain communications that are deemed to be privileged so long as made in good faith).  The Superior Court and Court of Appeals both denied the motion to strike.  The Court of Appeals found that Zeh had made a facial showing that the ACLU did not act in good faith because it did not obtain an existing public court document that contradicted the alleged defamatory statements about Zeh.  However, the Court of Appeals did not take the required step of analyzing whether Zeh had demonstrated a probability of showing by clear and convincing evidence that the ACLU acted with “actual malice” (i.e., knowing falsity or reckless disregard for the truth) in making the statements about Zeh.  Additionally, courts have previously recognized that a failure to investigate (i.e., the failure to look for and find the exculpatory public court document) is not sufficient to establish “actual malice” where the speaker was acting based on information provided by others that the speaker believed to be true.

Harmful impact of lower court’s ruling:  If not corrected by the Georgia Supreme Court, the lower court ruling in Zeh unduly burdens free speech and press rights by creating an onerous duty to investigate before speaking or reporting about public affairs that are intensely newsworthy.  The lower court’s ruling also invites parties with little connection to Georgia to vindicate personal disputes by filing defamation cases here that would elsewhere be dismissed under the “actual malice” standard.

Main points raised in the amicus brief:  (1) The lower court erroneously failed to apply the “actual malice” standard in denying the ACLU’s motion to strike Zeh’s defamation lawsuit, and (2) a failure to investigate does not constitute “actual malice.”