Georgia SLAPP Stories

Sued for Speaking Out in Georgia!

  • · In 2005, Shirley Berryhill wrote emails to Atlanta Journal-Constitution employees and the Georgia Department of Human Resources and posted comments on the Internet expressing her dissatisfaction with the treatment her disabled son was receiving at his care facility, Georgia Community Support & Solutions. When the care facility demanded that she apologize and retract her comments, Berryhill refused, and the care facility sued Berryhill for libel. In court, Berryhill asserted that the lawsuit was intended to silence her and asked the court to dismiss the case under the Georgia anti-SLAPP statute. The lower court agreed and dismissed the case, but the Court of Appeals reversed, ruling that the anti-SLAPP statute only protects statements made in connection with ongoing government proceedings. On appeal to the Georgia Supreme Court, The American Civil Liberties Union of Georgia, the Georgia First Amendment Foundation, and the Atlanta Press Club filed an amicus brief in support of Ms. Berryhill, but the high court affirmed the appellate court’s decision, concluding that Ms. Berryhill’s speech and acts did not fall within the scope of Georgia’s anti-SLAPP statute. The decision contrasted with earlier and later holdings, and cast doubt on the Georgia anti-SLAPP law’s protection of First Amendment rights.  See Georgia Community Support & Solutions v. Berryhill, 638 S.E. 2d 278 (2006).
  • In 2001, former Atlanta Humane Society (AHS) volunteer Barbara Harkins was interviewed by the local news about the certain practices at AHS. Harkins’s statements led to a state investigation, and AHS lost some of its funding as a result. AHS sued Harkins, along with a local blogger who covered the investigation. At trial, Harkins moved to dismiss twice, and the trial court denied both motions. The first motion was based on AHS’ failure to verify its complaint pursuant to the requirements of the Georgia anti-SLAPP law. AHS amended its complaint to add the requisite verification, and Harkins filed a second motion to dismiss, arguing that the lawsuit had been unlawfully initiated in response to her exercising her right to free speech. The court also denied this second motion. On appeal, the Court of Appeals reversed, and the Georgia Supreme Court affirmed and ordered the case dismissed. Atlanta Humane Society v. Harkins, 264 Ga. App. 356 (2003); 278 Ga. 451 (2004); on remand 273 Ga. App. 489 (2005).
  • Georgia resident Charles Smith operated a website, www.walocaust.com, on which he lambasted Wal-Mart. He sold apparel featuring a parody of Wal-Mart’s logo, including tee shirts that read Wal-Ocaust and Freedom-Hater-Mart in a font mimicking that of Wal-Mart’s. Wal-Mart sent letters to Smith asserting that Smith was engaging in trademark infringement in violation of federal law, and demanding that Smith shut down his site. In March, 2006, Smith sought a declaratory judgment that his actions were lawful. Wal-Mart countersued, alleging violations of federal trademark law. Smith moved to dismiss under Georgia’s anti-SLAPP law, but the district court denied the motion, as Smith’s statements were unconnected with a government proceeding.  The case proceeded to the summary judgment phase, forcing Smith to undergo the costly discovery process. As part of its discovery phase, Wal-Mart hired a market researcher to determine whether Smith’s designs had caused consumer confusion (an important element of trademark violation). The researcher surveyed hundreds of participants in online questionnaires and at shopping centers. Both parties then moved for summary judgment. In order to show that no disputed questions of fact existed, Smith had to produce his own expert to dispute the findings of Wal-Mart. The court, finding that Wal-Mart’s studies were so egregiously flawed as to not warrant consideration, dismissed all of Wal-Mart’s claims on summary judgment, and issued declaratory judgment that Smith’s actions were lawful. However, because the anti-SLAPP law did not apply, Smith was unable to recover his fees and costs. Wal-Mart v. Smith, 475 F. Supp. 2d 1318 (2007).