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On October 19, 2021, the Georgia Supreme Court issued a decision in ACLU v. Zeh giving full force and effect to the free-speech protections codified by Georgia’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) statute.

Consistent with arguments presented in the First Amendment Clinic’s friend-of-the-court brief, the court held that the anti-SLAPP statute protects a speaker who criticizes a public official from being sued for defamation unless the speaker had actual knowledge that their statements were probably false. As further advocated in the Clinic’s brief, the Georgia Supreme Court held that the speaker’s failure to exhaustively investigate prior to making the critical statements does not establish the speaker’s bad faith or prove that the speaker acted with reckless disregard for the truth.

ACLU v. Zeh arises out of statements published by the American Civil Liberties Union about alleged unlawful conduct by B. Reid Zeh, a part-time public defender in Glenn County, Georgia.

Zeh sued for defamation and the ACLU moved to strike the lawsuit under Georgia’s anti-SLAPP statute. The trial court denied the motion and the Georgia Court of Appeals affirmed.

Georgia’s highest court then agreed to hear the case after the Clinic filed a brief in support of the ACLU’s petition for review in July 2020. On the merits briefing, the Clinic argued that the Court of Appeals erroneously failed to apply the “actual malice” standard which, as per New York Times Co. v. Sullivan (1964) and Georgia statutory law, governs allegedly defamatory statements about public officials. The Clinic’s brief further argued that the Court of Appeals’ ruling chilled news reporting and public statements by lawyers litigating matters of public interest.

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.

Further 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 in a blog post about alleged unlawful conduct by public defender Zeh. The statements were based on the sworn declarations of Zeh’s former criminal defense client and the client’s mother. Zeh sued for defamation on the grounds that a public court document, undiscovered by the ACLU, showed the organization’s statements to be inaccurate. Affirming the trial court’s denial of ACLU’s motion to strike the lawsuit, 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 the exculpatory court document prior to publishing its allegedly defamatory statements about Zeh.

Reversing this decision, the Georgia Supreme Court concluded that Zeh “has not shown by clear and convincing evidence that the ACLU actually disbelieved or subjectively entertained serious doubts about the truth of the disputed statements in its blog post. Accordingly, Zeh has not established a probability of prevailing on his defamation claim under [ ] the anti-SLAPP test . . . the trial court erred in denying the ACLU’s anti-SLAPP motion to strike Zeh’s lawsuit; and the Court of Appeals erred in affirming that ruling.” The Georgia Supreme Court’s ruling importantly restores the free-speech protections legislated by the anti-SLAPP statute.