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On April 29, 2021, the First Amendment Clinic filed an amicus brief in the matter of ACLU v. Zeh urging the Georgia Supreme Court to correct a ruling by the state Court of Appeals that weakens free speech protections under Georgia’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) statute.

ACLU v. Zeh Amicus Brief 4.29.21

Georgia’s highest court agreed to hear the case after the Clinic filed a brief in support of the ACLU’s petition for review in July 2020.

The Clinic’s current amicus submission on the merits argues that the lower court erroneously failed to apply the “actual malice” standard in deciding whether a defamation lawsuit survives a motion to strike under the anti-SLAPP statute. If allowed to stand, the ruling chills news reporting and public statements by lawyers litigating matters of public interest. It also incentivizes “defamation tourists,” with little connection to Georgia, to file suit in the state because of the relaxed standard created by the Court of Appeals’ decision for showing lack of good faith.

The brief was authored by Clinic director Clare R. Norins and Michael Sloman (3L), along with Gabriel Rottman and Ian Kalish of the University of Virginia School of Law’s First Amendment Clinic. It was filed on behalf of the two clinics, the Georgia First Amendment Foundation, and the Southern Center for Human Rights.

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.

The Clinic’s amicus brief asks the Georgia Supreme Court to vacate the ruling below and either grant the ACLU’s motion to strike Zeh’s defamation claim under Georgia’s anti-SLAPP statute, or remand to the Court of Appeals for proper application of the “actual malice” standard.