A Constitutional Counterpunch to Georgia's Anti-slapp Statute

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2018
• Citation: Vol. 69 No. 2

A Constitutional Counterpunch to Georgia's Anti-SLAPP Statute

Nick Phillips

Ryan Pumpian

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A Constitutional Counterpunch to Georgia's Anti-SLAPP Statute

by Nick Phillips^*

and Ryan Pumpian^**

A "Strategic Lawsuit Against Public Participation"—commonly referred to as a "SLAPP"—is a lawsuit intended to chill free speech and healthy public debate and to otherwise intimidate people from speaking out on issues of public concern.¹ True SLAPP suits strike at the heart of the United States and Georgia Constitutions, specifically the rights to free speech and to petition the government enshrined therein.² In recent years, state legislatures, including the Georgia General Assembly, have attempted to ward off SLAPP suits through legislation—commonly referred to as "anti-SLAPP" statutes—aimed at the early dismissal of SLAPPs and the award of attorney's fees and costs to the SLAPP target.³

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Anti-SLAPP statutes are, arguably, well-intended. The expressed aim of anti-SLAPP statutes is to promote the right to free speech and to petition—and some would argue, democracy as we know it—by attempting to prevent or discourage SLAPP suits and provide for their quick dismissal if filed.⁴ Yet, in attempting to promote the SLAPP target's constitutional rights to free speech and to petition the government, anti-SLAPP statutes often infringe on the plaintiff's constitutional rights, including the right to a jury, due process, equal protection, and ironically, the right to petition.⁵ Georgia's anti-SLAPP statute is no exception.

This Article explores the constitutionality of section 9-11-11.1⁶ of the Official Code of Georgia Annotated (O.C.G.A.), Georgia's anti-SLAPP statute. Part I offers a brief historical perspective on SLAPP suits and the different judicial and legislative remedies to SLAPPs used or suggested by commentators. Part II discusses the framework, procedure, and applicability of Georgia's anti-SLAPP statute. Part III discusses the constitutional infirmities of Georgia's anti-SLAPP statute, concluding that the statute is likely unconstitutional. Finally, Part IV proposes alternatives to Georgia's anti-SLAPP statute that both better promote the aims of the statute and do not run afoul of the United States or Georgia Constitutions.

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I. Historical Perspective

A. An Overview of SLAPP Suits

In the classic SLAPP case, a well-funded corporation alleges defamation or other tortious conduct against detractors and critics who speak out against the company or a particular project or policy of the company.⁷ SLAPP suits commonly arise in connection with real estate development. For example, if disgruntled neighboring landowners protest the development (or redevelopment) of property, the developer might sue the protestors for defamation or tortious interference with contract or business relations.⁸ Through intimidation and the threat of mounting legal expenses, the real estate developer seeks to muzzle its critics by stopping them from speaking out or punishing them for doing so.⁹ A New York court summarized the classic SLAPP suit as follows:

SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more litigation that can be churned, the greater the expense that is inflicted and the closer the SLAPP filer moves to success. The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism. Needless to say, an ultimate disposition in favor of the target often amounts merely to a pyrrhic victory. Those who lack the financial resources and emotional stamina to play out the "game" face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. T[he] ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the

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head, a greater threat to First Amendment expression can scarcely be imagined.¹⁰

In short, "SLAPPs send a clear message: that there is a 'price' for speaking out politically. The price is a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings."¹¹

Since SLAPP suits were first recognized as a growing trend in the late 1980s,¹² the question has been how to prevent them.¹³

Solutions suggested by academic and professional observers fall generally into four categories: (1) those which aim at deterring SLAPP suits from being filed at all; (2) those which aim at early identification of targets and dismissal of SLAPP suits already filed; (3) those which aim at indemnification, such as awards of attorney fees and counterclaims for compensatory or punitive damages; and (4) those which aim at helping targets in the conduct of their defense.

Within each of these four categories remedies fall into two groups: (1) judicial solutions, which proceed from existing actions and procedures, and (2) statutory solutions, which involve a legislative response designed specifically to meet the SLAPP problem.¹⁴

B. Judicial Remedies to SLAPP Suits

George Pring, who coined the term "SLAPP,"¹⁵ suggested early on that the best solution to SLAPPs is judicial rather than legislative: "The best of these solutions lie with our courts—the very institution designed to protect individual liberties and political rights, yet, ironically, the very institution being manipulated to produce the 'chilling effect' of SLAPPs."¹⁶ There are two basic judicial approaches: (1) judicially-crafted procedures providing for early dismissal of SLAPPs, and (2) counterclaims filed by SLAPP targets seeking damages and attorney's

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fees for the wrongful lawsuit, sometimes called "SLAPP-Backs."¹⁷ Both are discussed below.

1. Judicially-Crafted Procedures for Early Dismissal

Several states rely on rules and procedures created by the courts for the early identification and dismissal of SLAPPs.¹⁸

a. The Noerr-Pennington Doctrine

Relying on the First Amendment right to petition, the Supreme Court of the United States has long protected citizens against SLAPPs—well before the term SLAPP was coined. This protection, commonly known as the Noerr-Pennington doctrine, arose from two Supreme Court opinions issued in the 1960s in the antitrust context, Eastern Railroad President's Conference v. Noerr Motor Freight, Inc.¹⁹ and United Mine Workers of America v. Pennington.²⁰ The result of those two cases was an express recognition that conduct intended to influence government action was absolutely privileged, and therefore, could not be the basis for liability under the antitrust laws, even if it negatively affected the plaintiff or competition generally.²¹ That protection was subsequently extended to judicial activity²² and to areas of the law beyond antitrust.²³ The Noerr-Pennington doctrine has been used for decades to enable targets of SLAPPs to end the case at the motion to dismiss stage.

b. Application of the Noerr-Pennington Doctrine to Address SLAPPs at the Motion to Dismiss Stage

In Webb v. Fury,²⁴ the Supreme Court of West Virginia applied the Noerr-Pennington doctrine and reversed the trial court's refusal to

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dismiss a lawsuit based on privileged petitioning activity.²⁵ In Webb, an individual and his non-profit corporation (the defendants) filed an administrative complaint with the Office of Surface Mining (OSM) and requested an evidentiary hearing with the Environmental Protection Agency (EPA), asserting that DLM Coal Corporation (DLM) violated the Surface Mining Control and Reclamation Act of 1977 and the Clean Water Act.²⁶ The nonprofit defendant also issued a newsletter suggesting that DLM was not responsibly mining coal.²⁷ DLM responded by filing a lawsuit against the defendants alleging that the defendants defamed DLM through their communications with the EPA and OSM, as well as through the newsletter published by the nonprofit.²⁸ DLM claimed that the defendants' legal actions and newsletter were false and defamatory.²⁹

The defendants moved to dismiss DLM's lawsuit because their communications were constitutionally privileged.³⁰ They argued that "these activities are absolutely privileged petitioning activities under the First Amendment to the Constitution of the United States and, for that reason, [DLM] may not maintain an action for damages against them."³¹ The Circuit Court of Upshur County denied the motion to dismiss.³²

On appeal, the Supreme Court of West Virginia, relying on the Noerr-Pennington doctrine, explained that "[t]he right to petition for redress of grievances is among the most precious of the liberties safeguarded by the Bill of Rights."³³ Accordingly, "[i]f it appears that [defendants'] conduct falls within the class of absolutely privileged petitioning activity, the mere pendency of the action will threaten the [defendants'] free exercise of their right to petition the government and the denial of the motion to dismiss by the circuit court will constitute error."³⁴ The court held that the defendants' communications to the EPA and OSM were "classic examples of absolutely privileged petitioning activity."³⁵ Likewise, the newsletter published by the non-profit defendant was also protected petitioning activity because "the right to petition includes, among other things, activity designed to influence public sentiment concerning the

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passage and enforcement of laws as well as appeals for redress made directly to the government."³⁶ The court concluded that "[A] publicity campaign to influence governmental action falls clearly into the category of political activity."³⁷

In holding that DLM's lawsuit should have been dismissed, the court reasoned:

[W]e shudder to think of the chill our ruling would have on the exercise of the freedom of

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