312 Ga. 647
Ga.2021Background
- B. Reid Zeh served as Glynn County’s appointed misdemeanor public defender (2013–July 2018) and also maintained a private practice.
- The ACLU Foundation filed a federal civil-rights class action alleging systemic failures in Glynn County’s misdemeanor public-defense system and attached sworn declarations from Robert Cox and Barbara Hamilton claiming Zeh charged $2,500 for representation that should have been free.
- The ACLU (nonprofit) published a blog post titled “Glynn County, Georgia’s Crooked Public Defender,” repeating those allegations and linking to the federal filings; Brunswick News ran a similar article.
- Zeh sued the ACLU and Brunswick News for defamation in Glynn County Superior Court. The ACLU moved to strike under Georgia’s anti‑SLAPP statute, OCGA § 9-11-11.1; Zeh sought discovery on actual malice.
- The trial court denied the ACLU’s motion to strike without ruling on Zeh’s discovery motions; the Court of Appeals affirmed. The Georgia Supreme Court granted certiorari, held Zeh was a public official, concluded he failed to show actual malice on the existing record, reversed the Court of Appeals, and remanded for the trial court to rule on discovery.
Issues
| Issue | Plaintiff's Argument (Zeh) | Defendant's Argument (ACLU) | Held |
|---|---|---|---|
| Proper standard of review for anti‑SLAPP motion implicating First Amendment | Deferential view to trial court; evaluate pleadings in plaintiff's favor | De novo review; view evidence favorably to plaintiff but independently review whole record for actual malice | De novo review of denial; view pleadings/affidavits in plaintiff's favor but independently review entire record as to actual malice |
| Whether Zeh is a "public official" for NYT purposes | He was a part‑time public defender and represented Cox in a private capacity, so not a public official | As the appointed sole misdemeanor public defender, he had substantial responsibility over public affairs and eligibility decisions | Zeh was a public official for the statements at issue; NYT actual‑malice standard applies |
| Whether Zeh proved actual malice on current record | Cox/Hamilton were unreliable; ACLU should have verified court records and contacted Zeh | ACLU relied on sworn federal filings and had no subjective awareness of probable falsity; failure to investigate alone is insufficient | Zeh failed to prove actual malice by clear and convincing evidence; the record does not show subjective awareness of probable falsity |
| Discovery entitlement on actual malice | Entitled to discovery under OCGA §9‑11‑11.1(b)(2) if he is a public‑figure plaintiff | ACLU contends it alleged only that Zeh is a public official, not a public figure | Trial court must decide discovery motions on remand; case remanded for rulings on discovery (plaintiff may be entitled to discovery on actual malice depending on statutory classification) |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (established actual‑malice standard for public‑official defamation claims)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (allocation of fault standards between public figures/officials and private plaintiffs)
- Rosenblatt v. Baer, 383 U.S. 75 (test for who qualifies as a public official)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary‑judgment principles and evidentiary view for defamation cases)
- Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (requirement of independent examination of the whole record on actual malice)
- Harte‑Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (circumstantial evidence and standards for proving actual malice)
- St. Amant v. Thompson, 390 U.S. 727 (failure to investigate does not alone establish actual malice)
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (evidentiary standards in public‑figure defamation suits)
- Wilkes & McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252 (Georgia’s interpretation and procedure for OCGA § 9‑11‑11.1)
- Cottrell v. Smith, 299 Ga. 517 (Georgia discussion of actual malice and proof standard)
- Garrison v. State of Louisiana, 379 U.S. 64 (scope of matters touching on official fitness warranting First Amendment protection)