Case Document 63-1 Filed 09/15/16 Page 1 of 31 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA RESOLUTE FOREST PRODUCTS, INC., 61? al. Plaintiffs, V, Case No. GREENPEACE INTERNATIONAL, 61? al. Defendants. BRIEF OF AMICI THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 11 MEDIA COMPANIES IN SUPPORT OF MOTION TO DISMISS AND MOTION TO STRIKE The Reporters Committee for Freedom of the Press and 11 additional amici listed below, through undersigned counsel, respectfully move for leave to appear as amici curiae in support of Defendants? motion to dismiss and motion to strike. Defendants have consented to the ?ling of this brief; Plaintiffs have stated that they do not consent. In addition to the Reporters Committee, the amicus parties are: American Society of News Editors, Association of Alternative Newsmedia, Association of American Publishers, Inc., First Amendment Coalition, First Look Media Works, Inc., Investigative Reporting Workshop at American University, National Press Photographers Association, Online News Association, The Seattle Times Company, Tully Center for Free Speech, and Yelp, Inc. Each is described more fully in Appendix A. Case Document 63-1 Filed 09/15/16 Page 2 of 31 As representatives of the news media and distributors of information to the public, amici are deeply concerned about application of federal RICO claims to speech, especially when such claims are intended to circumvent First Amendment protections. In addition, amici have an interest in ensuring that protections apply in federal courts throughout the country. Finally, amici write to highlight the importance of preserving robust protection for opinions. Protecting opinions guarantees that speakers can express themselves without fear of liability, a core guarantee of both the United States and Georgia Constitutions. SUMMARY OF THE ARGUMENT Resolute Forest Products, Inc., et al (?Resolute?) sued Greenpeace International, Greenpeace, Inc., Greenpeace Fund, Inc., Daniel Brindis, Amy Moas, Matthew Daggett, and Rolf Skar (collectively, ?Greenpeace?) as well as ForestEthics, Todd Paglia, and John and Jane Does 1-20 for RICO violations, libel, tortious interference, conspiracy, and trademark dilution after Greenpeace publicly advocated against and published statements about Resolute?s environmental practices. In response, Greenpeace ?led a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and a motion to strike under Ga. Code Ann. 9-11-11.1, Georgia?s statute. This case is about the exercise of fundamental speech rights. Protecting Greenpeace?s freedom of expression by rejecting the application of a federal racketeering statute to speech on matters of public concern, by applying the protections of an statute, and by protecting statements of opinion will ensure that speakers, including members of the news media, can exercise their constitutional rights without fear of unjusti?ed reprisals. Use of the RICO statute to target speech is clearly an attempt at an end-run around the protections of the First Amendment, and the US. Supreme Court has made clear that attempts to recover based on statements regarding matters of public concern or about public ?gures must be Case Document 63-1 Filed 09/15/16 Page 3 of 31 subject to all the protections of the First Amendment. No claim that attempts to circumvent these standards should stand. State statutes enacted to defeat ?strategic lawsuits against public participation,? or SLAPP suits, should apply in federal court. statutes, enacted in 29 states and the District of Columbia, provide mechanisms for speakers to swiftly resolve lawsuits brought to intimidate them into silence. The public interest in recognizing remedies in federal actions is significant: frivolous or otherwise insufficient suits arising out of speech create a signi?cant burden for speakers, including news organizations, and statutes help relieve this burden and, in most cases, help speakers avoid or minimize the costs of litigation and discovery. The application of state statutes in federal court has been upheld by three federal circuit courts, all of which have found that the laws do not con?ict with the Federal Rules of Civil Procedure and create substantive rights. Amici also emphasize the importance of preserving the broad protections afforded to subjective expression. If the barrier between protected opinion and actionable fact is blurred, the freedom to speak out on controversial matters of public interest as guaranteed by the First Amendment to the United States Constitution and Article I, Section I of the Georgia Constitution will be curtailed. Speakers would be deterred from injecting themselves into public debate for fear of tort liability, forcing people to examine matters of public concern without the bene?t of diverse viewpoints. Courts should encourage not suppress a vast array of opinions. In this case, a corporation engaged in controversial activities of great public interest attempts to sti?e the speech of an organization that has criticized and questioned its environmental record. Although framed as several different causes of action, the claims share a central purpose silencing speech on matters of public concern. Case Document 63-1 Filed 09/15/16 Page 4 of 31 ARGUMENT I. This Court should reject any effort to plead around well-established First Amendment protections by alleging that statements on matters of public interest can lead to liability under RICO. For each of its ?ve claims under the Racketeer In?uenced and Corrupt Organizations Act Resolute asserts that Greenpeace ?create[d] and disseminate[d] . . . reports and information concerning Resolute,? making clear that what Resolute attempts to characterize as Greenpeace?s alleged ?widespread dissemination scheme? in violation of RICO was merely Greenpeace exercising its right to speak freely under the First Amendment. Complaint at 92, Resolute Forest Prods, Inc. v. Greenpeace Int?l, No. 1:16-tc-05000 (S.D. Ga. ?led May 31, 2016) [hereinafter Complaint]. See also id. at 97, 103, 106?07, 109, 113?14. Indeed, Resolute identi?es under each RICO count the protected First Amendment activity or activities in which Greenpeace engaged: creating reports and ?broadly disseminating? them, ?communicating and coordinating with one another to? disseminate information Via electronic mail, US. mail, and phone, and ?us[ing] and caus[ing] to be used wire communications in interstate and foreign commerce and US. mails? that were circulated on its website and social media such as Twitter and Facebook. Id. at 93, 101, 103, 106?07, 109?10, 113?14. Greenpeace also argues that the other counts, such as tortious interference and conspiracy, are upon close examination just ?garden variety defamation claims? allegations that communications to other parties harmed or embarrassed the company. Mot. to Dismiss at 3. If, as Greenpeace alleges, all of these actions simply come down to statements about public issues that Resolute does not like and that are more appropriately resolved through defamation actions if untrue, amici agree that such claims are not the proper subject of a RICO action. Id. at 4 (?no court has ever held that an advocacy campaign on issues of public importance, Case Document 63-1 Filed 09/15/16 Page 5 of 31 standing alone, can be subject to liability for racketeering?). Attempting to disguise claims that seek to punish or halt allegedly improper or even false speech as a different cause of action in an effort to circumvent the protections courts have long recognized under the First Amendment should not be tolerated. In fact, such efforts have been specifically repudiated by the US. Supreme Court. In Hustler Magazine, Inc. v. Falwell, 485 US. 46 (1988), the Court dismissed an intentional in?iction of emotional distress claim because it concerned speech about a matter of public interest regarding a public ?gure. The Court found that any claim based on speech about public ?gures can stand only if it meets the ?actual malice? requirement of New York Times v. Sullivan; thus, the Court held that plaintiffs could not circumvent that standard by framing their claims as something else. See Hustler, 485 US. at 52. Falwell attempted to argue that the ?outrageous? nature of the conduct ascribed to him was suf?cient to result in liability for intentional in?iction of emotional distress, but the Court opined that ?in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. . . . Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.? Id. at 53. Permitting use of the RICO statute would be just as, if not more, onerous and damaging to public debate than allowing intentional in?iction of emotional distress claims to proceed when traditional libel claims fail. Applying a racketeering statute to speech disregards the important ?breathing space? for freedom of expression. Id. at 52. Greenpeace publicized environmental issues and evaluated Resolute?s role in following sustainable foresting practices. Complaint at 3, 10?1 1, 21?22. Punishing Greenpeace?s speech would create an ?undoubted ?chilling? effect on Case Document 63-1 Filed 09/15/16 Page 6 of 31 speech? and set a dangerous precedent for the news media reporting on matters of public concern. See Hustler, 485 US. at 52. Resolute claims that Greenpeace?s circulation of a series of reports and publications on its activities amounted to ?a pattern of racketeering activity,? Complaint at 92, but the company ignores the value of free debate and the signi?cance of the First Amendment. In its ?ve RICO counts, Resolute attempts to penalize and ultimately silence an advocacy campaign by treating it as an organized crime operation. Speakers of all types, whether advocates or journalists or something else, Will often establish a ?pattern? of speech; as public controversies rage on for years, there is every reason to believe that any interested speaker will communicate on the same topic many times. This pattern is, of course, particularly true for journalists as they gather and disseminate information on matters of public concern. The Northern District of Georgia has found that although plaintiffs may ?couch their claims in terms of other statutes and torts, the protections established for libel claims control when the ?gravamen of the plaintiffs? cause of action is defamation.? Brock v. Viacom Int Inc, No. Civ.A 2005 WL 3273767, at *2 (ND. Ga. Feb. 28, 2005). In Brock, the plaintiffs ?led nine claims, including fraud in the inducement, breach of contract, and promissory estoppel, against an entertainment company. The district court refused to evaluate each count separately; instead, it treated the complaint as bringing one claim pertaining to the company?s speech. See id. As in Brock, Resolute must not be permitted to pursue RICO claims against Greenpeace that pertain solely to the latter?s speech. The gravamen of Resolute?s complaint is defamation arising out of Greenpeace?s speech. See generally Complaint at 92? 115. Given that Resolute seeks damages for reputational harm, its cause of action can only continue if it ?meets the constitutional requirements of a defamation claim.? Brock, 2005 WL Case Document 63-1 Filed 09/15/16 Page 7 of 31 3273767, at *2 (quoting Steele 12. Isiko?, 130 F. Supp. 2d 23, 29 (D.D.C. 2000); citing Hustler, 485 US. at 46). RICO claims based on speech activities are a threat to news media?s dissemination of information on matters of public concern. The Southern District of Georgia found that civil plaintiffs bringing RICO claims cannot prevail where the RICO claim was predicated on an act that the statute was not aimed at deterring. Brief of Greenpeace Fund, Inc. in Support of Mot. to Dismiss at 3 (citing Doxie v. Ford Motor Credit 603 F. Supp. 624, 628 (SD. Ga. 1984)). But Resolute has done just that by asking this Court to apply a racketeering law to protected speech. In this case, there is no right to circumvent the protections afforded speech on public affairs. The Supreme Court has been steadfast in its protection of the First Amendment and its decision not to punish free expression. Hustler, 485 US. at 51. Resolute?s effort to contravene the First Amendment threatens to upend what is ?essential to the common quest for truth and the vitality of society as a whole? the robust protection of the freedom of speech. Id. II. Application of state statutes by federal district courts advances First Amendment freedoms and comports with Erie and its progeny. A. The ability to utilize statutes in federal court protects speakers from frivolous lawsuits and reduces chilling effects. The application of state statutes by federal courts sitting in diversity helps to protect the exercise of fundamental constitutional liberties. For defendants who have validly exercised their speech rights, the statutes provide an invaluable shield, allowing them to dismiss meritless claims while avoiding unnecessary legal expense. The statutes are also a sword, discouraging unscrupulous litigants who might bring claims with the threat of fees and costs. These features are critically important because many SLAPP litigants are not motivated primarily by a desire to win. Instead, they wish to increase the legal costs to such an extent that a 7 Case Document 63-1 Filed 09/15/16 Page 8 of 31 defendant will be forced to abandon the case and refrain from exercising his or her constitutional rights in the future. See US. ex rel. Newsham v. Lockheed Missiles Space C0., 190 F.3d 963, 970?71 (9th Cir. 1999). The Ninth Circuit has noted the gravity of the interests at stake in applying statutes: ?It would be dif?cult to ?nd a value of a ?high[er] order? than the constitutionally-protected rights to free speech and petition that are at the heart of California?s statute.? DC Comics v. P. Pictures Corp., 706 F.3d 1009, 1015?16 (9th Cir. 2013) (quoting Perry v. Schwarzenegger, 591 F.3d 1147, 1155?56 (9th Cir. 2010)). Refusing to apply statutes in federal court would signi?cantly affect members of the news media and others who regularly engage in public debate and speech on matters of public concern. Those currently protected under statutes would be forced to carefully consider the risks of voicing opinions on controversial topics. This would result in a chilling effect upon expression inconsistent with the First Amendment. See Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164, 177 (5th Cir. 2009) (?[The statute] aims to serve the substantial public interest of protecting those exercising their First Amendment rights from the chilling effect of defending meritless and abusive tort suits?). Some speakers would undoubtedly remain silent to avoid the risk of expensive and time-consuming litigation: ?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 head, a greater threat to First Amendment expression can scarcely be imagined.? Gordon v. Marrone, 590 649, 656 (Sup. Ct. 1992), 616 98 (App. Div. 2d Dep?t 1994) The chilling effects would be most profound for speakers with reduced ?nancial support who may not have the backing of legal counsel to defend against lawsuits. If state Case Document 63-1 Filed 09/15/16 Page 9 of 31 statutes were to be found inapplicable in federal court, the advantages of bringing an motion and forcing a court to assess the merits of a plaintiff? suit before litigation costs surge would be eliminated. The news media is already facing reduced resources to contest lawsuits. See In Defense of the First Amendment, Knight Found. (Apr. 21, 2016), Such a narrowed application of statutes would add additional monetary burdens to media defendants and Vitiate the desire of state legislatures to curb abuses of the judicial process. See Ga. Code Ann. (?The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of petition and freedom of speech should not be chilled through abuse of the judicial process?). A contrary ruling could have damaging, unintended consequences. In order to avoid the application of an law, plaintiffs could shift their litigation to federal court. See Newsham, 190 F.3d at 973 (?Plainly, if the provisions are held not to apply in federal court, a litigant interested in bringing meritless SLAPP claims would have a signi?cant incentive to shop for a federal forum?). A disparity in constitutional safeguards between state and federal courts would not only encourage such forum shopping, it would contradict our nation?s history of robust protections for speech and a free press. See Roth v. United States, 354 US. 476, 484 (1957) (?The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people?); Minneapolis Star Tribune Co. v. Minn. Comm ?r of Revenue, 460 US. 575, 585 (1983) (an ??untrammeled press [is] a vital source of public information,? . . . and an informed public is the essence of working democracy?) (citation omitted). Recognizing the substantive protections afforded to defendants by state laws to dismiss speech- Case Document 63-1 Filed 09/15/16 Page 10 of 31 suppressing lawsuits in federal court would ensure that plaintiffs do not choose a federal court instead of a state one merely to avoid these statutes. 1. The Georgia statute does not con?ict with the Federal Rules and is substantive under Erie. The First, Fifth, and Ninth Circuits have concluded that state statutes apply in federal court. Godin v. Schencks, 629 F.3d 79, 89 (1st Cir. 2010); Henry, 566 F.3d at 168?69; Newsham, 190 F.3d at 973; Makae?v. Trump Univ, LLC, 736 F.3d 1180, 1189?90 (9th Cir. 2013). The applicability of state statutes in federal court is currently an open question in the Eleventh Circuit, but a case now before the court may resolve the dispute. See obiniek v. Novella, No. 15-14889 (11th Cir.) (?led Sept. 1, 2016). The lower court in that case the US. District Court for the Southern District of Florida found that state statutes can be utilized in federal court, applying the California statute to the claims at issue. obinick v. Novella, 108 F. Supp. 3d 1299 (SD. Fla. 2015). Because the Georgia anti- SLAPP statute is analogous to the statutes in Godin, Henry, and Newsham, it should also be found to apply in federal court. In deciding whether a state law applies in a federal court sitting in diversity, courts ?rst ask if there is a con?ict between a state law and federal rule, determining whether there is a ?direct collision? between the state law and federal rule that ?leave[s] no room for the operation of [the state] law.? Walker v. Armco Steel, Corp, 446 US. 740, 749?50 (1980); Burlington N. RR Co. v. Woods, 480 US 1, 4?5 (1987); see also Shady Grove Orthopedic Assocs., RA. v. Allstate Ins. Co., 559 US. 393, 398 (2010). If there is no direct collision, courts then examine whether the state law confers substantive or procedural rights under Erie. Erie RR. v. Tompkins, 304 US. 64 (1938); Hanna v. Plumer, 380 US. 460, 471 (1965). In order to make this substantive or procedural classi?cation, courts look to the substantive state interests ?irthered by 10 Case Document 63-1 Filed 09/15/16 Page 11 of 31 the state law and the twin purposes of Erie ?discouragement of forum-shopping and avoidance of inequitable administration of the law.? Newsham, 190 F.3d at 973 (citing Hanna, 380 US. at 468). The First, Fifth, and Ninth Circuits have all concluded state laws do not ?directly collide? with Federal Rules of Civil Procedure 12 and 56. See Godin, 629 F.3d at 86? 91; Henry, 566 F.3d at 168?69; Newsham, 190 F.3d at 973; Makae?, 736 F.3d at 1182. In Makae?, the Ninth Circuit used the US. Supreme Court?s analysis in Shady Grove to determine if the laws con?ict, asking whether the state statute at issue ?attempts to answer the same question? as the Federal Rule. 736 F.3d at 1182 (citing Shady Grove, 559 US. at 393). The Ninth Circuit con?rmed that there is no direct collision in light of Shady Grove because Califomia?s statute ?supplements rather than con?icts? with the Federal Rules by creating a ?separate and additional theory upon which certain kinds of suits may be disposed of before trial.? Makaejj?, 736 F.3d at 1182. The First and Fifth Circuits have agreed. Godin, 629 F.3d at 88 (?In contrast to the state statute in Shady Grove, section 566 does not seek to displace the Federal Rules or have Rules 12(b)(6) and 56 cease to function?); Henry, 566 .3d at 168?69 (?Louisiana law, including the nominally-procedural statute] . . . governs this diversity case?). In addition to ?nding that state law does not con?ict with federal law because the statute supplements the Federal Rules, the Ninth Circuit also found that California?s interest in the speech rights of its citizens ?cautions against ?nding a direct collision.? Makae?, 736 F.3d at 1182 (writing that a majority of Justices in Shady Grove considered the signi?cance of the state interests in determining whether there is a con?ict). Following the logic of these courts, Georgia?s statute does not con?ict with the Federal Rules because it, like the statutes at issue in the above cases, ?supplements rather 11 Case Document 63-1 Filed 09/15/16 Page 12 of 31 than con?icts? with the Federal Rules. Id. The Georgia statute creates a ?separate and additional theory upon which certain kinds of suits may be disposed of before trial.? Id. Because there is no ?direct collision? between Georgia?s statute and the Federal Rules, the inquiry turns to whether the state law in question is procedural or substantive under Erie and its progeny. Courts ask if it ?signi?cantly affect[s] the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State Hanna, 380 US. at 466 (quoting Guar. Trust Co. of NY. v. York, 326 US. 99, 109 (1945)). Under this test, Georgia?s statute provides substantive protection for defendants. The statute constitutes ?an additional, unique weapon to the pretrial arsenal [of Rules 12 and 56], a weapon whose sting is enhanced by an entitlement to fees and costs.? Newsham, 190 F.3d at 973. Unlike the Federal Rules, the Georgia statute is speci?cally designed to protect a defendant?s substantive, constitutional rights of freedom of petition and speech. Ga. Code Ann. Georgia courts speci?cally recognized the substantive protections of the state?s anti- SLAPP law, ?nding that although there are ?procedural aspects? of the statute, there are also substantive provisions for determining privileged speech that apply in federal court. Adventure Outdoors, Inc. v. Bloomberg, 519 F. Supp. 2d 1258, 1278?79 (ND. Ga. 2007) (citing Atlanta Humane Soc ?y v. Harkins, 278 Ga. 451 (2004)). As the Court of Appeals of Georgia held, ?[b]ased on the plain language of the statute, existing case law, and the statute?s express purpose, . . . the veri?cation requirement of the statute is procedural in nature in that veri?cations must contain certain assertions and must be ?led within a certain time, but is also substantive in nature in that to determine whether the requirements of the statute have been met, the court must take a substantive look at the veri?cation offered to ensure that the underlying 12 Case Document 63-1 Filed 09/15/16 Page 13 of 31 lawsuit has not been initiated for an improper purpose. An interpretation that the veri?cation requirement is entirely procedural in nature would be contrary to the stated purpose of the statute, which is to ?encourage participation by the citizens of Georgia in matters of public signi?cance through the exercise of their constitutional rights of freedom of speech. . . Harkins v. Atlanta Humane Soc 264 Ga. App. 356, 360 (2003) (citation omitted). As the veri?cation requirement has since been overhauled in the newly enacted anti- SLAPP law effective July 1, 2016 there is no impediment to its application in federal court. See Ga. Code Ann. 9?1 1?1 1.1. Georgia courts permit dismissal of claims under the state?s anti- SLAPP statute ?based on the substantive protection that the statute provides for persons who exercise their right to free speech.? E. Harkins, 264 Ga. App. at 358, 360. See also Buckley v. DIRECT V, Inc, 276 F. Supp. 2d 1271, 1274 (NB. Ga. 2003) (applying Georgia?s statute in federal court to dismiss plaintiff? claims because pre-litigation demand letter was on matter of public concern and an exercise of First Amendment right of petition). The inclusion of a veri?cation requirement in Georgia?s statute is the single distinction the Northern District of Georgia outlined between its state law and Califomia?s, but as that distinction no longer exists, the argument no longer stands that these two statutes should be treated differently in federal court. Such a proposal negates the substantive provisions of Georgia?s special motion to dismiss that the Northern District of Georgia held apply in federal court. Compare 15249 Alberta Ltd. v. Lee, No. 2011 WL 2899385, at *3 (ND. Ga. July 15, 2011), with Adventure Outdoors, Inc., 519 F. Supp. 2d at 1278?79. 1 In 2014, the Eleventh Circuit also found that the veri?cation requirement in Georgia?s former statute was procedural and could not be applied in federal court. Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1359?62 (11th Cir. 2014). 13 Case Document 63-1 Filed 09/15/16 Page 14 of 31 Courts also look to the twin purposes of Erie to minimize forum shopping and the inequitable administration of the law in conducting the substantive-procedural analysis. Newsham, 190 F.3d at 973. These considerations weigh in favor of applying Georgia?s anti- SLAPP statute in federal court. If Georgia?s statute only applied in state and not federal court, a SLAPP litigant seeking to suppress the speech of a defendant would have a signi?cant incentive to bring his suit to federal court where the provisions of the statute could not reach him. There, a SLAPP defendant would suffer from a considerable disadvantage, unable to dismiss a meritless claim as quickly as in state court and unable to escape the fees and costs associated with defending a SLAPP suit. Additionally, not recognizing statutes in federal court would ??ush away state legislatures? considered decisions on matters of state law? and ?put the federal courts at risk of being swept away in a rising tide of frivolous state actions.? Makae?, 736 F.3d at 1187. Thus, refusing to apply the state law would reward forum shopping and lead to the inequitable administration of the law. Such a result, which would encourage litigants to shop for a federal forum and disadvantage defendants entitled to protections in federal proceedings, ?run[s] squarely against the ?twin aims? of the Erie doctrine.? Newsham, 190 F.3d at 973. Although three federal circuit courts have found state statutes applicable in federal court, the DC. Circuit determined the DC. statute did not apply in federal court in Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328, 1337 (DC. Cir. 2015). The DC. Circuit concluded that the DC. statute con?icted with Federal Rules 12 and 5 6 because the Rules ?answer the same question? as the state law. Id. at 1333?34 (citing Shady Grove, 5 5 9 US. at 398?99). But the court ignored the primary distinction between the Federal Rules and statutes that it had earlier highlighted: ?Many States have enacted anti- 14 Case Document 63-1 Filed 09/15/16 Page 15 of 31 SLAPP statutes to give more breathing space for free speech about contentious public issues. Those statutes ?try to decrease the ?chill effect? of certain kinds of libel litigation and other speech-restrictive litigation.?? Abbas, 783 F.3d at 1332 (citations omitted). Speci?cally, the DC. Circuit noted that the DC. Council enacted the statute ?in response to . . . an upsurge in ?lawsuits ?led by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view. Under the Act as relevant here, a defendant may file a special motion to dismiss to dismiss ?any claim arising from an act in furtherance of the right of advocacy on issues of public interest.?? Id. In focusing on the ?procedural mechanism? of the statute as opposed to its objective, the DC. Circuit overlooks a crucial fact the declaration of a new substantive right that Georgia?s law also incorporates. Id. at 1332, 1335. While Rules 12 and 56 uniformly provide defendants theories for disposing of suits before trial, Georgia?s statute creates a ?separate and additional theory? for disposing of suits for a particular type of defendant one acting ?in furtherance of the person?s or entity?s right of petition or free speech 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.? Ga. Code Ann. The question asked when assessing a special motion to strike under the Georgia statute involves an inquiry into the defendant?s actions not present under a Rule 12 or 5 6 analysis. Thus, the Federal Rules and the Georgia statute do not con?ict. Because the Georgia statute does not directly con?ict with the Federal Rules of Civil Procedure and is substantive under Erie, amici urge this Court to hold that Georgia?s statute applies in federal court. 15 Case Document 63-1 Filed 09/15/16 Page 16 of 31 2. A civil lawsuit arising out of speech on environmental issues is precisely the type of suit that the Georgia statute is meant to apply to. Resolute?s RICO, libel, tortious interference, conspiracy, and trademark dilution claims arising from Greenpeace?s advocacy about an issue of public importance are precisely the type of claims contemplated by the Georgia legislature when it amended Georgia?s statute. The legislature intended for the statute to ?encourage participation by the citizens of Georgia in matters of public signi?cance and public interest through the exercise of their constitutional rights of petition and freedom of speech.? Ga. Code Ann. 9-1 1?1 The law declared that speech rights ?should not be chilled through abuse of the judicial process.? Id. Dismissing Resolute?s claims pursuant to an motion to strike both encourages Greenpeace?s participation in a matter of public interest namely, the environmental impact of Resolute?s operations in the boreal forest and discourages the chilling of speech. The Georgia statute de?nes a SLAPP as an ?act of such person or entity Which could reasonably be construed as an act in ?lrtherance of the person?s or entity?s right of petition or free speech 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.? Id. Greenpeace is an advocacy organization that openly seeks to promote public debate on a number of environmental issues including the future of Canadian boreal forests, the threat to biodiversity, questionable logging practices, violations of the Canadian Boreal Forest Agreement, and concern for the future of communities relying on a healthy boreal forest. Greenpeace is motivated by its desire to reform laws and practices in a manner that it believes will protect the environment. Greenpeace?s publications at issue in this case are clearly, as de?ned in the Georgia statute, acts in furtherance of a person?s right of free speech in connection With an issue of public 16 Case Document 63-1 Filed 09/15/16 Page 17 of 31 concern. See Connick v. Myers, 461 US. 138, 146 (1983) (de?ning speech of a public concern as speech that can ?be fairly considered as relating to any matter of political, social, or other concern to the community?); Robinson v. Balog, 160 F.3d 183, 188 (4th Cir. 1998) (?nding that statements about potential environmental hazards were speech on a matter of public concern). Statements based on disclosed, truthful facts are protected opinions. Protection of opinionated writing is important to the news media. Everything from commentary on op-ed pages to the viewpoint of a documentary film may be more opinionated than factual news reporting, and deserving of protection without the need to justify the ?factual? accuracy of opinionated conclusions when the factual basis of those opinions is disclosed. A. Broadly protecting statements of opinion encourages robust speech, spurs societal change, and infuses valuable information into the public sphere. Protecting opinion is essential to ensuring a ?ourishing marketplace of ideas. If courts find publishers liable for opinions, the ?robust debate among people with different viewpoints that is a vital part of our democracy would surely be hampered.? Partington v. Bugliosz?, 56 F.3d 1147, 1154 (9th Cir. 1995). Publishers of all types rely on these broad protections to provide illuminating information to the public. Without expansive safeguards for opinions, ?authors of every sort would be forced to provide only dry, colorless descriptions of facts, bereft of analysis or insight.? Partington, 56 .3d at 1154. The ability to freely quote sources, observe and describe events, and disseminate information while drawing sometimes subjective conclusions from the facts presented is a critical journalistic tool. Reporting on the facts the who, what, when, and where is often only the starting point. Adding creative and illustrative features to the information being disseminated and placing facts in context helps make journalism compelling to readers, and captures aspects of the story that would be absent without opinions. 17 Case Document 63-1 Filed 09/15/16 Page 18 of 31 Preserving robust protections for opinion, whether from an advocacy organization or a journalist, is important to give speakers the security they need to contribute to public discourse without fear of liability. It was an opinion column by Eileen McNamara that caused then-Boston Globe editor Marty Baron to designate resources to thoroughly investigate allegations of sexual abuse by priests in the Catholic Church. See Eileen McNamara, A Familiar Pattern, THE BOSTON GLOBE (July 22, 2001). The investigation revealed a history of covering up sexual abuses by Church of?cials, resulting in The Boston Globe receiving a Pulitzer Prize in 2003 and inspiring the movie Spotlight, winner of the Oscar for Best Picture in 2016. Strong legal protections for opinion can encourage publications to shine a light on matters of public concern. B. Courts across the country and in Georgia have held that opinions based on disclosed, truthful facts are not actionable. The US. Supreme Court recognized the importance of protecting opinions in Milkovich v. Lorain Journal Co., 497 US. 1 (1990). While rejecting the idea of a distinct ?opinion defense,? the Court described two categories of opinion shielded by the First Amendment: statements that are not ?provable as false? and statements that ?cannot reasonably be interpreted as stating actual facts.? Id. at 19?20. Some statements in and of themselves are so subjective and unveri?able that they must be deemed opinion (sometimes referred to as ?pure opinion?). RESTATEMENT (SECOND) OF TORTS, 566 cmt. (1977). Other statements can be perceived as factual or opinion statements, and in such cases, if the facts supporting the statement are true and known from the context in which they are made or truthfully expressed, they are protected. Id. Thus, a ?simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself suf?cient for an action of defamation, no matter how unjusti?ed and unreasonable the opinion may be or how derogatory it is.? Id. 566 cmt. c. 18 Case Document 63-1 Filed 09/15/16 Page 19 of 31 Extrapolating from the parameters set out in Milkovich, courts across the country, including those in Georgia, have recognized an important principle of defamation law conclusions based upon disclosed, true facts are not actionable. See, e. Hoffmann-Pugh v. Ramsey, 193 F. Supp. 2d 1295, 1302 (N.D. Ga. 2002), 312 F.3d 1222 (11th Cir. 2002) . . statements clearly recognizable as pure opinion because their factual premises are revealed? are excluded from defamation liability (citing Jaillett v. Ga. Television Co., 238 Ga. App. 885, 890 (1999)); Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995) statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning?); Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997) (Where ?a statement of opinion either discloses the facts on which it is based or does not imply the existence of undisclosed facts, the opinion is not actionable?). This tenet is rooted in the theory that ?statements clearly recognizable as pure opinion because their factual premises are revealed? are protected because they cannot be understood as stating ?actual facts.? Phantom Touring v. A?iliatea? Publ?ns, 953 F.2d 724, 731 n.13 (1st Cir. 1992). Although this principle was not explicitly addressed in Milkovich, the US. Supreme Court provided an example of the reasoning behind protecting statements based on disclosed, true facts. The Court explained that the statement, ?In my opinion Mayor Jones is a liar,? could be actionable, but the statement, ?In my opinion Mayor Jones shows his abysmal ignorance by accepting the teaching of Marx and Lenin,? would not be actionable. Milkovich, 497 US. at 20. The second statement, in which the speaker presents reasons for the belief, receives constitutional protection because it does not imply a provable false fact. Id. As the US. Court of Appeals for the First Circuit described this principle, when opinions are based on disclosed facts, ?all sides of the issue, as well as the rationale for [the defendant?s] view, [are] exposed, 19 Case Document 63-1 Filed 09/15/16 Page 20 of 31 [and] the assertion . . . reasonably could be understood as [the defendant?s] personal conclusion about the information presented, not as a statement of fact.? Phantom Touring, 953 F.2d at 730. Consistent with Milkovich, federal circuit courts protect opinion based on disclosed, true facts. See, e. Riley v. Harr, 292 F.3d 282, 297 (lst Cir. 2002) (concluding a statement that a witness was ?lying? was protected opinion because the speaker disclosed the facts supporting the opinion); Potomac Value Fitting Inc. v. Crawford Fitting C0., 829 F.2d 1280, 1290 (4th Cir. 1987) (finding statements about a business were protected opinion because ?the reader is by no means required to share? the conclusions made by the author when they were based on seven speci?c points outlined in the article); Redco Corp. v. CBS, Inc, 758 F.2d 970, 972 (3d Cir. 1985) (determining that listeners can choose to accept or reject the speaker?s conclusion by independently assessing the facts); Lauderback v. Am. Broad. Cos., 741 F.2d 193, 195 (8th Cir. 93 CC 1984) (?nding that statements that agent was ?rotten, unethical,? ?sometimes illegal,? a ?crook,? and a ?liar? were protected opinions based on disclosed, true facts); Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995) (indicating that by divulging facts underlying a conclusion, ?readers will understand they are getting the author?s interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts?); Moldea v. New York Times Co., 15 .3d 1137, 1144- 45 (DC. Cir. 1994) (holding that statements were not actionable as opinion because the ?reader understands that such supported opinions represent the writer?s interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts?). Georgia courts also protect statements based on disclosed, true facts. See, e. Ho?mann-Pugh, 193 F. Supp. 2d at 1302; Jaillett, 238 Ga. App. at 890 (?If an opinion is based 20 Case Document 63-1 Filed 09/15/16 Page 21 of 31 upon facts already disclosed in the communication, the expression of the opinion implies nothing other than the speaker?s subjective interpretation of the facts?); Austin v. PM Acquisitions, LLC, 278 Ga. App. 539, 541?42 (2006) (?nding that a newspaper article claiming an oral surgeon ?was apparently trying to protect his daughter? by falsifying a blood alcohol lab report was protected as the oumalist?s opinion based upon facts presented in the article). In Hoffmann- Pugh, the parents of onBenet Ramsey published a book recounting the investigation into the mysterious killing of their six-year-old daughter. 193 F. Supp. 2d at 1297. The parent authors identi?ed seven possible leads they believed should be investigated, including Linda Hoffmann- Pugh, the family housekeeper at the time of onBenet Ramsey?s death. Id. After publication, Hoffmann-Pugh sued John and Patsy Ramsey for defamation, alleging that the book created the false impression that Hoffmann-Pugh murdered onBenet Ramsey. Id. The court granted Defendants? motion to dismiss, finding that the statements were protected opinion because the facts upon which the statements were based were completely revealed to the reader, and those facts were not defamatory. Id at 1302. C. Greenpeace?s statements about Resolute?s practices are the type of nonactionable opinion that should not give rise to a libel suit. In this case, Greenpeace asserts that it based its subjective conclusions about Resolute on disclosed facts from reliable information that are substantially true. See Mot. to Dismiss at 22 (?The writers of the statements at issue went out of their way to set forth the basis for the opinions expressed through footnoting sources, adding hyperlinks to sources, and providing links to supportive news reports?) Providing truthful information to support its conclusions would clearly warrant ?nding that the statements Greenpeace made, no matter how vehemently, must be protected as opinions based on disclosed facts. 21 Case Document 63-1 Filed 09/15/16 Page 22 of 31 Indeed, at least one example illustrates the importance of allowing speakers to be critical of other parties as long as they state the facts on which their opinions are based. Greenpeace?s ?Resolute: Forest Destroyer? campaign and publications associated with it included statements that Resolute destroyed endangered forests and species and exploited the Canadian Boreal indigenous communities, including that of the First Nations. However, Greenpeace?s conclusion that Resolute is a ?Forest Destroyer? is its own opinion based on facts presented to readers. These facts consist of ?ndings from the Grand Council of the Crees and from independent investigations and audits of Resolute?s environmental practices, including the Accreditation Services International and Forest Stewardship Council See Mot. to Dismiss at 24; Mot. to Strike at 15?24. Greenpeace referred to the ?ndings of the Grand Council of the Crees, ASI, and FSC to readers throughout its publications about Resolute. After analyzing the disclosed facts, readers could agree or disagree with Greenpeace?s subjective conclusion that Resolute was a ?Forest Destroyer,? and form their own view. Further, courts have found that the status of a speaker or the context in which speech is made can signal to readers that the speaker?s statements are subjective opinions meant to persuade. See Pellegrini v. errer, 27 Media L. Rep. 1127, 1128 (NY. Sup. Ct. 1998) (listeners would likely perceive a radio show guest?s statements critical of a police of?cer as opinion because the guest had previously been critical of the police department); McGill v. Parker, 179 98, 110 (NY. Dep?t 1992) (readers of letters to government of?cials would interpret statements alleging the plaintiff mistreated his horses as opinion because they were designed primarily to persuade); Immuno AG. v. Moor-Jankowskz', 537 129, 137 (1st Dep?t 1989) (average readers of a letter to an editor would understand the statements to be opinion rather than facts because they were written by a known animal rights activist). Here, 22 Case Document 63-1 Filed 09/15/16 Page 23 of 31 Greenpeace, a worldwide organization established in 1971, is known by the public as an activist organization that advocates for environmental causes. Accordingly, a reasonable reader would interpret its statements as being subjective expressions of opinion. IV. CONCLUSION For the foregoing reasons, amici curiae respectfully urge this Court to ?nd that the Georgia statute applies in federal court and to reject any attempt to circumvent longstanding constitutional protections in defamation law by advancing RICO claims based on disagreement with statements on matters of public interest. Respectfully submitted this 15th day of September 2016. 23 Gerald Weber Gerald Weber Georgia Bar No. 744878 Law Of?ces of Gerry Weber, LLC PO. Box 5391 Atlanta, GA 31107 (404) 522-0507 wgerryweber@gmail.com Counsel of Record Bruce D. Brown Gregg P. Leslie THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th Street NW, Suite 1250 Washington, DC. 20005 Case Document 63-1 Filed 09/15/16 Page 24 of 31 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 15th day of September 2016, I ?led the foregoing amicas curiae memorandum via the system, which electronically served the following: Thomas W. Tucker Georgia Bar No. 717975 TUCKER LONG, PC 453 Greene Street Augusta, GA 30901 (706) 7 22-077 1 ttucker@tuckerlong.com Laura Handman (admitted pro hac vice) Lisa Zycherman (admitted pro hac vice) DAVIS WRIGHT TREMAINE, LLP 1919 Avenue, NW, Suite 800 Washington, DC. 20006 (202) 973-4200 laurahandman@dwt.com lisazycherman@dwt.com Lance H. Koonce, (admitted pro hac vice) DAVIS WRIGHT TREMAINE, LLP 1251 Avenue of the Americas, Floor New York, NY 10020 (212) 603-6467 lancekoonce@dwt.com Attorneys for Defendants Greenpeace International, Greenpeace, Inc., Daniel Brindis, Amy Moas, Matthew Daggett, and Rolf Skar James S. Murray WARLICK, STEBBINS, MURRAY CHEW, LLP PO. Box 1495 Augusta, GA 30903 (706) 722-7543 Attorney for Defendant Greenpeace Fund, Inc. 24 Case Document 63-1 Filed 09/15/16 Page 25 of 31 James B. Ellington Georgia Bar No. 243858 HULL BARRETT, PC PO. Box 1564 Augusta, GA 30903 (706) 722-4481 Ellington@hullbarrett.com Michael J. Bowe Lauren Tabaksblat (Pro Hac Vice applications to be submitted) KASOWITZ, BENSON, TORRES FRIEDMAN LLP 1633 Broadway New York, NY 10019 (212) 506-1700 mbowe@kasowitz.com ltabaksblat@kasowitz.com Attorneys for Plaintiffs Gerald Weber GERALD WEBER Georgia Bar No. 744878 25 Case Document 63-1 Filed 09/15/16 Page 26 of 31 V. APPENDIX A: DESCRIPTION OF AMICI With some 500 members, American Society of News Editors is an organization that includes directing editors of daily newspapers throughout the Americas. ASNE changed its name in April 2009 to American Society of News Editors and approved broadening its membership to editors of online news providers and academic leaders. Founded in 1922 as American Society of Newspaper Editors, ASNE is active in a number of areas of interest to top editors with priorities on improving freedom of information, diversity, readership and the credibility of newspapers. Association of Alternative Newsmedia is a not-for-pro?t trade association for 130 alternative newspapers in North America, including weekly papers like The Village Voice and Washington City Paper. AAN newspapers and their websites provide an editorial alternative to the mainstream press. AAN members have a total weekly circulation of seven million and a reach of over 25 million readers. The Association of American Publishers, Inc. is the national trade association of the US. book publishing industry. members include most of the major commercial book publishers in the United States, as well as smaller and nonpro?t publishers, university presses and scholarly societies. AAP members publish hardcover and paperback books in every ?eld, educational materials for the elementary, secondary, postsecondary and professional markets, scholarly journals, computer software and electronic products and services. The Association represents an industry whose very existence depends upon the free exercise of rights guaranteed by the First Amendment. First Amendment Coalition is a nonpro?t public interest organization dedicated to defending free speech, free press and open government rights in order to make government, at all 26 Case Document 63-1 Filed 09/15/16 Page 27 of 31 levels, more accountable to the people. The Coalition?s mission assumes that government transparency and an informed electorate are essential to a self-governing democracy. To that end, we resist excessive government secrecy (while recognizing the need to protect legitimate state secrets) and censorship of all kinds. First Look Media Works, Inc. is a new non-pro?t digital media venture that produces The Intercept, a digital magazine focused on national security reporting. The Investigative Reporting Workshop, a project of the School of Communication (SOC) at American University, is a nonpro?t, professional newsroom. The Workshop publishes in?depth stories at about government and corporate accountability, ranging widely from the environment and health to national security and the economy. The National Press Photographers Association is a 501(c)(6) non-pro?t organization dedicated to the advancement of visual journalism in its creation, editing and distribution. approximately 7,000 members include television and still photographers, editors, students and representatives of businesses that serve the visual journalism industry. Since its founding in 1946, the NPPA has vigorously promoted the constitutional rights of journalists as well as freedom of the press in all its forms, especially as it relates to visual journalism. The submission of this brief was duly authorized by Mickey H. Osterreicher, its General Counsel. Online News Association is the world?s largest association of online journalists. mission is to inspire innovation and excellence among journalists to better serve the public. more than 2,000 members include news writers, producers, designers, editors, bloggers, technologists, photographers, academics, students and others who produce 27 Case Document 63-1 Filed 09/15/16 Page 28 of 31 news for the Internet or other digital delivery systems. ONA hosts the annual Online News Association conference and administers the Online Journalism Awards. DNA is dedicated to advancing the interests of digital journalists and the public generally by encouraging editorial integrity and independence, journalistic excellence and freedom of expression and access. The Seattle Times Company, locally owned since 1896, publishes the daily newspaper The Seattle Times, together with The Issaquah Press, Yakima Herald-Republic, Walla Walla Union-Bulletin, Sammamish Review and Newcastle-News, all in Washington state. The Tully Center for Free Speech began in Fall, 2006, at Syracuse University?s S.I. Newhouse School of Public Communications, one of the nation?s premier schools of mass communications. Yelp Inc. provides online services, including Yelp.com, which allow consumers to share ratings, reviews, photographs, and other information about businesses, government services, and other local establishments. Approximately 23 million unique mobile devices accessed Yelp via the Yelp app, approximately 73 million unique visitors visited Yelp via desktop computer, and approximately 69 million unique visitors visited Yelp via mobile website on a average basis during the second quarter of 2016. Yelp's users have posted over 100 million reviews since Yelp?s inception in 2004. 28 Case Document 63-1 Filed 09/15/16 Page 29 of 31 VI. APPENDIX B: DISCLOSURE STATEMENTS American Society of News Editors is a private, non-stock corporation that has no parent. Association of Alternative Newsmedia has no parent corporation and does not issue any stock. The Association of American Publishers, Inc. is a nonpro?t organization that has no parent and issues no stock. First Amendment Coalition is a nonpro?t organization with no parent company. It issues no stock and does not own any of the party?s or amicus? stock. First Look Media Works, Inc. is a non?pro?t non-stock corporation organized under the laws of Delaware. No publicly-held corporation holds an interest of 10% or more in First Look Media Works, Inc. The Investigative Reporting Workshop is a privately funded, nonpro?t news organization af?liated with the American University School of Communication in Washington. It issues no stock. National Press Photographers Association is a 501(c)(6) nonpro?t organization with no parent company. It issues no stock and does not own any of the party?s or amicus? stock. Online News Association is a not-for-pro?t organization. It has no parent corporation, and no publicly traded corporation owns 10% or more of its stock. The Seattle Times Company: The McClatchy Company owns 49.5% of the voting common stock and 70.6% of the nonvoting common stock of The Seattle Times Company. The Tully Center for Free Speech is a subsidiary of Syracuse University. 29 Case Document 63-1 Filed 09/15/16 Page 30 of 31 Yelp Inc. has no parent corporation, and no publicly traded corporation owns 10% or more of its stock. 30 Case Document 63-1 Filed 09/15/16 VII. APPENDIX C: ADDITIONAL COUNSEL Of Counsel: Kevin M. Goldberg Fletcher, Heald Hildreth, PLC 1300 N. 17th St., 11th Floor Arlington, VA 22209 Counsel for American Society of News Editors Kevin M. Goldberg Fletcher, Heald Hildreth, PLC 1300 N. 17th St., 11th Floor Arlington, VA 22209 Counsel for Association of A lternative Newsmedia Jonathan Bloom Weil, Gotshal Manges LLP 767 Fifth Avenue New York, NY 10153 Counsel for The Association of American Publishers, Inc. Peter Scheer First Amendment Coalition 534 Fourth St., Suite San Rafael, CA 94901 Oberlander General Counsel, Media Operations First Look Media Works, Inc. 18th Floor 114 Fifth Avenue New York, NY 10011 Mickey H. Osterreicher 1100 Center, 3 Fountain Plaza Buffalo, NY 14203 Counsel for National Press Photographers Association Aaron Schur 140 New Montgomery Street, 9th Floor San Francisco, CA 94114 Counsel for Yelp Inc. 31 Page 31 of 31