Hb 513 - Civil Practice Act: Anti-slapp
| Publication year | 2016 |
HB 513 - Civil Practice Act: Anti-SLAPP
Pierre-Joseph Noebes
Georgia State University College of Law, pierrenoebes@gmail.com
Rachel Reed
Georgia State University College of Law, rachelpastor@gmail.com
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| Code Sections: | O.C.G.A. §§ 5-6-34 (amended), 9-11-11.1 (amended), 51-5-7 (amended) |
| Bill Number: | HB 513 |
| Act Number: | 420 |
| Georgia Laws: | 2016 Ga. Laws 341 |
| Summary: | The Act amends Georgia's anti-SLAPP statute to expand its coverage from protecting the right to petition to also include protecting the right of free speech in connection with an issue of public interest or concern. Claims brought against those involved in such activities shall be subject to a motion to strike, unless the court determines that the nonmoving party has established a probability that the claimant can prevail on the merits. If the moving party succeeds on a motion to strike, |
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| the court will award the party attorney's fees and costs associated with the motion. Any order granting or denying a motion to strike will be immediately appealable. | |
| Effective Date: | July 1, 2016 |
History
In 2000, Georgia Community Support & Solutions, Inc. ("GCSS"), a nonprofit organization that assists adults with disabilities and their families, placed Shirley Berryhill's mentally disabled adult son with an independently contracted caregiver.1 In 2002, Berryhill began posting complaints about the quality of care GCSS was providing her son on a website for families of adults with disabilities.2 In her complaints, Berryhill claimed, among other things, that her son had rapidly lost thirty-five to forty pounds, had no clothes and no bed, had been beaten, and had become afraid to speak to family.3 In 2003, Berryhill voiced her concerns once again in an email sent to about forty people, including one who worked for the Atlanta Journal Constitution, and another who worked for the Georgia Department of Human Resources.4
Following this email, the contents of which Berryhill also posted on the website for families of adults with disabilities, GCSS sent Berryhill a letter demanding a retraction and apology. 5 GCSS received neither.6 In response, the organization filed a defamation and tortious interference with business relationships suit against Berryhill. 7 GCSS's complaint alleged that Berryhill maliciously published false information about the organization and its executive director online.8 Berryhill countered by stating that she had made the
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statements in good faith and in the hopes that others, particularly the Atlanta Journal Constitution and Georgia Department of Resources, could help investigate her concerns about her son's treatment and "remedy such concerns, if possible."9 Berryhill filed a motion to dismiss, arguing that her statements fell under the protection of Georgia's current anti-SLAPP statute and that GCSS had failed to comply with the statute's verification requirements.10
"SLAPP" stands for "strategic lawsuit against public participation."11 Plaintiffs most often use SLAPP suits to stifle the speech of adverse parties.12 Accordingly, anti-SLAPP legislation aims to thaw the chilling effects these suits can have on protected free speech.13 At the time GCSS filed its suit against Berryhill, Georgia's anti-SLAPP statute attempted to achieve this aim by identifying protected speech and requiring potential SLAPP claimants and their attorneys to attest to the validity of their claims by filing a written verification.14 The verification required claimants to certify under oath that their claims were well grounded in fact and law, did not involve privileged communication, and were not imposed for an improper purpose; namely to suppress a person's right of free speech or petition.15 If a claimant failed to sufficiently verify the claim, the court would strike the claim.16 If a claimant verified his claim in violation of the statute, "the court, upon motion or upon its initiative" would impose a sanction, which could include dismissal of the claim or an order to pay the adverse party's legal expenses.17
At the time of the Berryhill suit—and until the enactment of HB 513 in 2016—Georgia's anti-SLAPP statute limited protected speech to the following:
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Any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.18
In essence, the statute narrowed protected speech to statements made in connection with official government proceedings.19 When a person spoke on an issue not currently under consideration or review through an official proceeding, no anti-SLAPP protections applied.20 It is this provision that proved determinative in Georgia Community Support & Solutions, Inc. v. Berryhill.
The trial court granted Berryhill's motion to dismiss, finding Georgia's anti-SLAPP statute applied to her statements and that GCSS had failed to satisfy the statute's verification requirements imposed by that statute, but the Georgia Court of Appeals reversed this ruling.21 The appellate court found that Georgia's anti-SLAPP statute did not apply to Berryhill's statements because they had not been made in connection with any official proceedings.22 Even if Berryhill had hoped that her speech would lead to an official investigation of GCSS and her son's treatment, this aspiration alone failed to bring her statements within the narrow scope of protected speech articulated in the anti-SLAPP statute.23 In 2006, the Supreme Court of Georgia affirmed the Court of Appeals' decision.24
Proponents of HB 513, including its sponsor, Representative Ron Stephens (R-164th), state that citizens who speak out on issues of public concern, like Berryhill, are among the people who will receive protection under an expanded anti-SLAPP statute.25 However, the
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true driving force behind HB 513 is the legislature's desire to appeal to Georgia's booming, corporate film industry rather than a civic concern for the free speech rights of "the little guy."26
In large part, HB 513 was "brought to you by the film industry," and enjoyed strong support from the American Motion Picture Association. 27 As Peter Canfield, a First Amendment attorney, explained during a House Judiciary Non-Civil Committee meeting, celebrities and the broader film industry often attract lawsuits.28 Because of this tendency, the film industry desires a legal environment where it can receive an early determination of these cases on the merits without having to incur the high costs of discovery and court proceedings for claims that turn out to be frivolous.29 In an effort to foster this type of environment, the authors of HB 513 modeled the bill after California's anti-SLAPP statute, perhaps the most expansive anti-SLAPP provision in effect in the United States.30
Bill Tracking of HB 513
Consideration and Passage by the House
Representative Ron Stephens (R-164th) sponsored HB 513 in the House.31 The House read the bill for the first time on March 2, 2015, and was committed to State Planning and Community Affairs.32 Speaker David Ralston (R-7th) withdrew the bill from State Planning and Community Affairs and recommitted the bill to the House
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Judiciary Non-Civil Committee.33 The House read the bill for the second time on March 3, 2015.34 On February 25, 2016, the House Judiciary Non-Civil Committee amended the bill in part and favorably reported the bill by substitute.35
The Committee substitute included most of the introduced bill's text, and merely removed or changed the text of a few subsections.36 The Committee substitute changed some of the language found in Section 1 of the bill beginning at line thirty-two.37 The language requiring a nonmoving party to establish that "he or she would be likely to prevail on a motion for summary judgment brought by the moving party pursuant to Code section 9-11-35" was removed.38 In its place, the Committee substitute stated "an issue of public interest or concern shall be subject to a motion to strike unless the court determines that the nonmoving party has established that there is a probability that the nonmoving party will prevail on the claim."39
The Committee substitute also changed the language found under subsection (b.1) of Section 1, related to recovery of attorney's fees and expenses of litigation.40 Yet, like the changes above, these changes were merely superficial and did not alter the effect of the subsection.41 The Committee substitute also removed subsection (e), which stated, "an order granting or denying a motion to dismiss or a motion to strike shall be immediately appealable."42 Finally, the Committee substitute removed some of the language found in Section 3 of the bill so that it stated, "[t]his Act shall become effective on July 1, 2016."43
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