Georgia Supreme Court Limits Scope of Anti-Slapp Statute

The Supreme Court of Georgia has limited the scope and effectiveness of a Georgia statute designed to bring a quick end to lawsuits challenging the exercise of free speech. 

In Berryhill v. Georgia Community Support & Solutions, Inc., the court construed OCGA §9-11-11.1, Georgia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, to apply only to speech made in the course of official proceedings.  In the case, Georgia Community Support & Solutions, Inc. (GCSS), a nonprofit organization which assists disabled adults and their families, brought suit against Shirley Berryhill for statements she made about GCSS in a Web posting and in e-mails she sent to the Atlanta Journal Constitution.  Berryhill’s expressions complained that her mentally handicapped son was receiving poor treatment and care.  GCSS sued for tortious interference with a business relationship and libel per se after Berryhill refused to issue a retraction and apology. 

The trial court dismissed the action, concluding that Berryhill’s statements were protected by the anti-SLAPP statute because they were made in furtherance of her right to free speech about an issue of public concern.  On appeal, the Georgia Court of Appeals reversed that finding, and held that the anti-SLAPP statute did not encompass all
statements involving matters of public concern, but rather was more limited.  

Upon review, the Georgia Supreme Court ruled that the anti-SLAPP statute is limited in scope to official proceedings, based on the Georgia legislature’s use of the word “includes” in subsection (c) of the statute, which provides:

As used in this Code section, “act in furtherance of the right of free speech or the right to petition the government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” includes 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.

The court viewed the scope of the statute’s protection as being identical to the phrase that followed the word “includes.” After rejecting the argument that the word “includes” was intended to merely be illustrative, the court ruled “[t]herefore it clearly is reasonable to read the word ‘includes’ as meaning ‘is equivalent to,’ and to conclude that the specific phrases in subsection (c) set forth the entire definition.” 

The court concluded that if the Georgia legislature intended the word “includes” to be a broader term of illustration or enlargement, then it would have used the phrase “includes, but is not limited to.”  The court noted that the legislature had used those very words in another subsection of the anti-SLAPP statute addressing attorneys’ fees. 

The court further ruled that there was no evidence of an official proceeding either before or after the statements were made, and nothing that suggests that Berryhill sought an official investigation or proceeding. Thus, the court held, “Ms. Berryhill did not perform any act which could reasonably be construed as a statement or petition within the definition of [Georgia’s anti-SLAPP statute], as properly interpreted.”  As a result, the court sent the case back to the trial court so that the litigation could proceed. 

Three justices joined in a dissent written by Justice Robert Benham.  The dissent disagreed with the majority’s holding that the word “includes” was an expression of limitation, as opposed to one of illustration.  The dissent further stated that the majority’s narrow construction was unsupported by the language of the statute and undesirable as a matter of public policy.  By the court’s decision not to apply the statute to all “free speech on matters of public concern,” the dissenting opinion said, the “citizens of Georgia are poorer.”

The Georgia legislature could, of course, amend the statute to address the holding of the Georgia Supreme Court.  Unlike Georgia, courts in other jurisdictions, most notably, California, have broadly applied their states’ anti-SLAPP statutes to statements made in newspapers and broadcasts to matters of public concern.