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Scope of anti-SLAPP law limited to official proceedings

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  1. Libel and Privacy
NEWS MEDIA UPDATE   ·   GEORGIA   ·   Libel   ·   Nov. 30, 2006

NEWS MEDIA UPDATE   ·   GEORGIA   ·   Libel   ·   Nov. 30, 2006

Scope of anti-SLAPP law limited to official proceedings

  • The Georgia Supreme Court ruled Tuesday that a law intended to protect the free speech rights of dissenters can only apply to comments made in connection with an official government proceeding.

Nov. 30, 2006  ·   A decision by the Georgia Supreme Court has made it more difficult for newspapers, reporters and even nonjournalists to protect themselves from libel lawsuits.

The case, which was decided on Tuesday, concerned a state law that prevents companies, individuals or the government from using costly defamation lawsuits to punish and silence those who legitimately speak out against their decisions or activities. Georgia’s statute and similar laws in other states are commonly referred to as “anti-SLAPP statutes” for “strategic lawsuits against public participation.”

In 2005, Shirley Berryhill wrote e-mail messages to Atlanta Journal-Constitution employees and the Georgia Department of Human Resources and posted comments on the Internet expressing her dissatisfaction with the treatment her disabled son was receiving at his care facility, Georgia Community Support & Solutions. When the care facility demanded that she apologize for and retract her comments, Berryhill refused.

The care facility sued Berryhill for libel, but she claimed that the lawsuit was intended to silence her and asked the court to dismiss the case under the anti-SLAPP statute.

Although the lower court agreed with Berryhill, both the appeals court and the Georgia Supreme Court said that the law could not apply because Berryhill’s comments were not made in connection with any official proceeding.

The case turned on whether the statute’s language — which says that a protected act “includes” speech related to an official proceeding — used the word “includes” to mean “encompasses” among other things or “is equivalent to.”

As a result of Tuesday’s opinion, the care facility can move forward with its lawsuit against Berryhill.

In the opinion, Justice George Carley said that the court was only applying the law as the legislature had intended. Joined by three other justices, Carley wrote that the court would not “expand the scope of the anti-SLAPP statute beyond its terms so as to encompass a wide range of speech and conduct which is arguably connected with any issue of public concern.”

In a strongly worded dissent, Justice Robert Benham said that restricting the law in this manner was “undesirable as a matter of public policy.” Joined by two other justices, Benham wrote that the majority opinion caused citizens to lose free speech rights that the legislature intended to give.

“The citizens of Georgia are the poorer for that loss,” he wrote, “and I cannot join in an opinion which effects that deprivation.”

Gerald Weber, legal director for the American Civil Liberties Union of Georgia, said that the opinion is ambiguous because it does not give a clear explanation of what comments would be covered under the statute. The ACLU filed a friend-of-the-court brief supporting Berryhill.

“Ms. Berryhill sent information to a government agency — the Department of Human Resources — presumably so that they would take action and look into the treatment of her son,” Weber said, “so it is difficult to know what words in what speech to what to government agencies will still be protected.”

The court said that nothing in Berryhill’s communications could “be construed as a request for any official investigation or proceeding.”

In its brief, the ACLU warned that “journalists, whistleblowers, and concerned citizens generally” must “fear wallet-crippling lawsuits if their speech was not made to a government body or did not happen to lead to a government investigation. It benefits us all if they expose wrong-doing.”

Weber said Tuesday’s opinion could make newspapers more susceptible to defamation lawsuits if they print opinions that a court finds do not use the “magic words.”

“What magic words have to be used to be protected now by the statute is anybody’s guess,” he said.

(Berryhill v. Georgia Community Support and Solutions, Amicus Counsel: Gerald Weber, ACLU of Georgia, Atlanta)ES

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