Counts Law Group

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.

A Washington County sheriff’s deputy, a sheriff’s investigator and the county itself have been sued for civil rights violations after the arrest and jailing of a Sandersville, Georgia woman for an innocuous social media comment.

The alleged crime that prompted the arrest and imprisonment? Anne King had lamented on Facebook about her ex-husband’s refusal to bring their sick child medicine when she and both of their kids had the flu.

This was the actual post that led to her arrest:

Anne Boyd King – Feeling overwhelmed

That moment when everyone in your house has the flu and you ask your kids’ dad to get them (not me) more Motrin and Tylenol and he refuses.

The federal case, Anne King v. Corey King, Trey Burgamy and Washington County was filed recently in Georgia’s Middle District by Cynthia Counts, Ken Hodges and Andre T. Tennille III.

The attorneys issued this statement: “Our client, like all Americans, is entitled to post her thoughts and feelings on social media. The First Amendment guarantees this, and limits criminal penalties to narrow exceptions such as where the speech would provoke violence or incite a riot. Obviously, Ms. King’s speech embodied no such threat.”

Defendant Corey King is Ms. King’s ex-husband. He works about three miles from her house as a sheriff’s deputy, and he is commander of the Washington County Jail.

In comments about her post, several of Ms. King’s friends expressed their support for her, and one agreed to pick up the medicine and deliver it.  That friend, Susan Hines, also decried the ex-husband’s refusal and characterized him as a “POS.”

After becoming aware of the Facebook activity, Officer King demanded that Ms. King delete the post and comments. She did not do so.

The federal complaint alleges that Officer King and Burgamy, a sheriff’s department investigator, “then cooked up a scheme to have Ms. King charged, arrested and jailed.” First they filed an incident report in which King styled himself as the victim. Then they went to the county magistrate, with whom they work regularly, and got him to issue a notice demanding that Ms. King and Ms. Hines, appear for a warrant hearing.

On January 21, 2015, the women appeared before Chief Magistrate Ralph Todd. Officer King testified that he sought a warrant because of Ms. King’s derogatory statements on Facebook. Todd, who is not a lawyer, decided after the officer’s testimony that Ms. King and Ms. Hines had made “derogatory and degrading comments (about Corey King) … for the purpose of provoking a breach of the peace” and issued warrants for their arrest on criminal defamation charges. During the hearing, the complaint notes, the magistrate even threatened to “ban [Ms. King] from Facebook.”

As a matter of law, there is no such crime as criminal defamation in Georgia. The statute regarding that offense was declared unconstitutional 33 years ago. At the time the warrants were issued, criminal defamation was still listed in the official Georgia Law Enforcement Handbook that judges and police use. But right under the code it clearly states that the law was ruled unconstitutional in 1982. And it has since been officially repealed.

Ms. King was placed in a patrol car for a humiliating ride to the jail. At the jail, there were challenges processing the two women. The fingerprinting system requires a code for each detainee, but there was no code for criminal defamation (because there is no criminal defamation statute.) Nevertheless, Ms. King was jailed for four hours before bonding out for $1,000.

Later, Ms. King returned to court, appearing before a state court judge who, the complaint notes, agreed there was no basis for the arrest and added, “I don’t even know why we are here.”

The solicitor dropped the case but threatened other charges. In the months since, Officer King has threatened to use police authority again to have Ms. King charged with “willful contempt,” according to the complaint.

The federal lawsuit alleges that Officer King and Investigator Burgamy intentionally violated Ms. King’s civil rights and that she was the victim of false arrest, malicious prosecution and a conspiracy by Officer King and Investigator Burgamy to violate her First and Fourth Amendment Rights. The suit also alleges that the county’s failure to train its officers on the law “in the face of repeated incidents” like the King case constitutes deliberate indifference to civil rights.  

In comments to Atlanta's FOX 5, which recently broadcast a story on the case, Cynthia Counts noted, "This was so innocuous it was fairly shocking.

"Even if she did say something mean about him, what difference does it make? It's hard to imagine that anybody could think that this post is a basis for arrest."

A federal judge in Atlanta has refused to dismiss a federal civil rights suit against the city of Atlanta and Atlanta police that a citizen filed after his arrest for wearing a mask during a peaceful protest against a police shooting in Ferguson, Mo.. U.S. District Judge Leigh Martin May also rejected city lawyers' claims that the officers who detained Gates have immunity from liability. The plaintiff is represented by Cynthia Counts of Duane Morris, and the case is one of three similar 1983 civil rights claims filed by Counts and attorneys Dan Grossman and Gerry Weber. 

Protection for free speech rights in Georgia just got a lot stronger.

A SLAPP (Strategic Lawsuit Against Public Participation) lawsuit is intended to censor, intimidate or silence critics by burdening them with the cost of a legal defense until they abandon their criticism. Anti-SLAPP legislation is intended to address this abuse of free speech rights.

Georgia’s current anti-SLAPP statute was enacted in 1996 but was fairly narrow in scope, applying only to lawsuits involving statements made to government bodies or in connection with issues under consideration in official proceedings. It also contained a cumbersome verification requirement, which precludes application of the statute in federal courts. See The Royalty Network v. Harris, 756 F.3d 1351 (11th Cir. 2014).

But a new anti-SLAPP measure, HB 513, was passed by the Legislature this year and was signed into law April 26 by Georgia Gov. Nathan Deal. The push for a strengthened anti-SLAPP law was led by the entertainment industry, which increasingly has used Georgia for film and television production. Passage of the measure helps make Georgia attractive to the industry. HB513 would improve Georgia’s existing anti-SLAPP statute in several ways:

 ·         First, it broadens the scope of the statute to encompass “Any written or oral statement or writing or petition made in a place open to the public or a public forum in connection with an issue of public interest or concern” and “Any … conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public concern.” This language was borrowed from the California anti-SLAPP statute §425.16(e)(3)-(4), ensures that typical claims involving entertainment content would be covered by the statute.

·         Second, it contains a mandatory award of attorneys’ fees to the prevailing moving party on an anti-SLAPP motion;

·         Third, it provides that the denial of anti-SLAPP motion is immediately appealable; and

·         Fourth, it eliminates the verification procedure, which should help ensure that the statute applies in federal court.

What this means for media clients, and for anyone exercising their free speech rights in Georgia, is that deep pockets plaintiffs will have a much tougher time sustaining a groundless defamation claim. It is often that case in libel claims that plaintiffs will use the courts to chill speech and/or push defendants to settle just to avoid lengthy and expensive litigation. With the new anti-SLAPP measure, all discovery, with the possible exception of public figure discovery on the question of actual malice, will be stayed once an anti-SLAPP motion is filed, until that issue is decided.

A group of Georgia media lawyers and legislative media advocates worked together to draft and advance the bill. The attorney group included: Cynthia Counts of Duane Morris, Peter Canfield of Jones Day, and Tom Clyde and Lesli Gaither of Kilpatrick Townsend & Stockton. Media advocates included Ben Sheffner of the Motion Picture Association of America, Tom Harrold of Miller & Martin for MPAA, Michael Wall of Comcast, and Arthur “Skin” Edge for Turner Communications.

The new law takes effect July 1.