In one of the first applications of Georgia’s broadened anti-SLAPP law, a Forsyth County Superior Court judge granted a defendant’s request to dismiss a defamation complaint after determining the allegedly defamatory statements were protected free speech under that law.  

The case, Gauthier v. Vaughn, was filed after the 2016 passage of the amended anti-SLAPP statute and involved speech that occurred after the new law went into effect.

The case grew out of an investigation of a fire that occurred at the Plaintiff’s home. Over the course of an investigation of the fire, the parties became aware that State Farm, the home insurer, “received an allegedly anonymous phone call indicating information about a ‘possible arson’.”

The caller was identified as the Defendant, who also is the step-father of the Plaintiff’s wife. Plaintiff and his wife were involved in divorce litigation at the time. On learning of the telephone call during discovery in the divorce case, Plaintiff filed the defamation complaint.

Cynthia Counts with Duane Morris was lead counsel for the Defendant in the defamation case. Debra Rickles represented the Plaintiff.

In deciding the case for the Defendant, Judge Philip C. Smith included a lengthy reference to the amended statute in his order, with specific regard to its applicability:

“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 or entity’s right of petition or free speech … in connection with an issue of public interest or concern shall be subject to a motion to strike unless the court determines the nonmoving party has established that there is a probability that the nonmoving party will prevail on the claim…”

As a threshold matter, the Court affirmed that even under the original statute, “case law makes it clear that what can be considered a matter of public concern is very broad.”

However, the original anti-SLAPP law, passed in 1996, was fairly narrow in scope when it came to the ‘where’ and ‘how’ of the speech at issue. The statute said it applied only to lawsuits involving statements made to government bodies or in connection with issues under consideration in official proceedings.

Whether an issue was “under consideration in official proceedings” or whether a statement was made directly to a government body had the effect of muddying the water in a number of earlier cases where the anti-SLAPP law, intended to encourage citizen participation in matters of public significance, would seem to have been appropriate.

The amended law has helped to clarify this issue.

In part, Judge Smith’s order viewed the case through the narrower lens of official government proceedings referenced in the original statute. Even so, the Court concluded that State Farm fire investigation “constitutes an ‘official proceeding’ under the statute as State farm was actively working with local law enforcement and the fire department to investigate the cause of the fire.”

Further, the Court concluded that “even if these investigations were not to constitute an ‘official proceeding,’ such statements would be protected under other free speech defenses.”

The amended statute defines four broad categories of speech or conduct which now fall clearly under the protection of the law.

Defense counsel argued the broadest of those, “…speech in connection with a public issue or an issue of public concern,” was particularly on point:

“Defendant’s conduct did not concern just a ‘private’ insurance policy or an issue of insurance fraud, but instead was a report of possible criminal conduct, which are per se matters of public concern.”

Because the Court found the statements were in furtherance of the Defendant’s right to petition, Plaintiff had the burden of establishing the probability that he would prevail on the claim. The Court said Mr. Gauthier had made no showing that such a probability existed and also stated that even if anti-SLAPP didn’t protect the statements that they would likely be defensible as opinion statements.

In finding for the Defendant, the Court also awarded attorney’s fees to the defendant, now a mandated requirement of the law in cases involving speech protected under anti-SLAPP.