Case Document 20-1 Filed 11/01/16 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Davide M. Carbone,

CIVIL ACTION NO.

Plainti 


V.
Cable News Network, Inc. 

Defendant.



BRIEF OF AMICI CURIAE GEORGIA PRESS ASSOCIATION, GEORGIA
FIRST AMENDMENT FOUNDATION, THE ATLANTA OURNAL-
CONSTITUTION, WAGA FOX 5 AND THE MOTION PICTURE
ASSOCIATION OF AMERICA, INC. IN SUPPORT OF THE
CONSTITUTIONALITY OF O.C.G.A. ITS APPLICABILITY IN
FEDERAL COURT AND RETROACTIVITY

Case Document 20-1 Filed 11/01/16 Page 2 of 30

STATEMENT OF THE INTERESTS OF AMICI

The Georgia Press Association (GPA) is a non?profit association whose
members are 139 daily and weekly Georgia newspapers. An important mission of
the GPA is to protect, promote, foster and advance the freedom of speech and of
the press in Georgia. One way in which this is accomplished is to advocate for
Georgia?s statutory protections of free speech, including its law.
While GPA is an organization of newspapers, its advocacy is intended to bene?t
all Georgians who are served by vigorous protection of the freedom of speech.

The Georgia First Amendment Foundation (GFAF) is a Georgia non?profit
corporation organized in 1994 to inform and educate the public on government
access and First Amendment issues, and to provide legal support in cases in which
the freedom of speech is threatened.

The Atlanta Journal?Constitution is a daily newspaper published in Atlanta,
Georgia that covers issues of interest to the greater metropolitan area and
throughout the state. The AJ depends upon the enforcement of Georgia?s laws
that protect its rights to freedom of speech and the press, including the 
statute.

WAGA FOX 5 has fought for the First Amendment rights of Georgia

residents to tell their stories free from censorship and other unwarranted

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restrictions. WAGA FOX 5 has been broadcasting news and information in
Georgia since 1949. Today, WAGA FOX 5 produces almost 60 hours of local
news and information every week; provides around the clock coverage on its
website, and, working with its affiliated entities, also
provides news coverage of events across the country and worldwide. Through its
broadcasts, website and other media, WAGA FOX 5 provides extensive coverage
of matters of public signi?cance and public interest to its viewers in the Atlanta
metropolitan area and elsewhere. To continue its newsgathering efforts, WAGA
FOX 5 needs the free speech protections embodied in Georgia?s 
statute from lawsuits filed solely to silence opposing views and to increase the
costs of producing news coverage.

The Motion Picture Association of America, Inc. represents the
six major film and TV studios in the US: Paramount Pictures Corporation; Sony
Pictures Entertainment Inc.; Twentieth Century Fox Film Corporation; Universal
City Studios Walt Disney Studios Motion Pictures; and Warner Bros.

Entertainment Inc.] The members produce programming in Georgia2 and

 

1 MPAA member Warner Bros. Entertainment Inc. is a corporate af?liate ofDefendant Cable
News Network, inc.

2 A total of 245 feature films and television programs were produced in Georgia in fiscal year
20l 6, ranking number three, behind only California and New York, in production volume. See Press
Release, ?Film industry Generates More than $7 Billion for Georgia?s Economy,? Aug. 2, 2016

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distribute it to millions of moviegoers and television viewers around the world;
some also own local television stations, Whose news organizations keep local
communities informed. In keeping with its nearly century?long history of ?ghting
for the free speech rights of ?lmmakers, the MPAA advocates for strong anti?
SLAPP laws across the nation, and played a leading role in the successful effort to

strengthen Georgia?s statute through the passage of HE. 513 in 2016.3

 


(available at 


3 See Shawn McIntosh, ?Stronger free speech rights for everyone,? Atlanta Journal-
Constitulion, Oct. 15, 2106 (available at 


 

 

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INTRODUCTION

laws are fundamentally important. The First Amendment grants
every citizen a largely unfettered right to speak freely on matters of public concern.
But when lawsuits are brought against people or businesses on account of their
speech, the practical effect is often that their speech is silenced, constitutional
protection notwithstanding. (Defending lawsuits?~even frivolous oneswcan be
prohibitively burdensome and expensive.) Such suits have become a national
problem in recent years, to the point that they have been given a name: ?strategic
lawsuits against public participation,? or SLAPPS.

For those without the means to mount a traditional (read: costly) litigation
defense, and for media entities that are by nature a constant target, state anti-
SLAPP laws like the one at issue in this case are the only meaningful insulation
against the chilling effect of SLAPPS. In a nutshell, these laws provide SLAPP
defendants with a mechanism for securing dismissal of meritless claims without
the burdensome discovery and litigation costs that would otherwise accrue. In
Georgia, individuals in a wide range of circumstances have relied upon the anti-
SLAPP law to fend off attempts to sti?e their speech disguised as meritless claims

for defamation, malicious prosecution, intentional interference with contractual

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relations, and even trademark infringement. And in 2016, the Georgia legislature
amended the law to broaden its protection of free speech.

Amici submit this brief to help the Court understand the importance of the
questions presented by this case regarding the constitutionality and applicability of
Georgia?s law, and to explain why each of the plaintiff? 8 attempts to
eliminate or limit this indispensable protection of free speech falls short.

ARGUMENT

I. LAW PROVIDES VITAL PROTECTION
FOR FREEDOM OF EXPRESSION

A. SLAPPS and 

The First Amendment protects all kinds of expression. None, however,
resides higher on the ?hierarchy of First Amendment values? than speech on
matters ofpublic concern. Connick v. Myers, 461 US. 138, 145 (1983). Rightfully
so. Speech on public issues is ?more than self-expression; it is the essence of self?
government.? Garrison v. State 0fLa., 379 US. 64, 74?75, (1964). The
representative democracy launched by the framers cannot ful?ll its great promise
unless speech on public issues remains ?[u]ninhibited, robust, and wide-open.?
New York Times Co. v. Sullivan, 376 US. 254, 270 (1964). Accordingly, speech on
matters of public concern garners ?special protection.? Snyder v. Phelps, 562 US.

443, 452 (2011) (quoting Connielc, 461 us. at 145).

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Strategic lawsuits against public participationmSLAPPsw?threaten to
suppress this vital speech on public issues. These suits?usually framed as civil
tort actions like defamation, invasion of privacy, or interference with contract or
business relationships?leverage the often?prohibitive expense of defending even
frivolous lawsuits to sti?e or punish protected speech the SLAPP plaintiff opposes.

As the Supreme Court explained in a famous SLAPP, such a suit ?no doubt
may be used as a powerful instrument of coercion or retaliation.? Bill Johnson ?s
Restaurants, Inc. v. NLRB, 461 US. 731, 740 (1983). ?Regardless ofhow
unmeritorious the suit is, the [defendant] will most likely have to retain counsel
and incur substantial legal expenses to defend against it.? Id. The ?chilling effect
upon a [defendant?s] willingness to engage in protected activity is multiplied where
the complaint seeks damages in addition to injunctive relief.? Id. SLAPPs have a
prospective chilling effect on constitutionally protected speech and petition activity
as well, since the SLAPP plaintiff ?place[s] [people] on notice that anyone who
engages in such conduct is subjecting himself to the possibility of a burdensome
lawsuit.? Id; see also Colin Quinlan, Erie and the First Amendment: State Anti?
SLAPP Laws in Federal Court After Shady Grove, 1 14 Colum. L. Rev. 367 (2014)
(?The burden of litigation inhibits the exercise of First Amendment

rights, because even targets who persevere and eventually prevail on the merits

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must spend substantial time and money to do so, and the experience deters them
from speaking out in the future. Worse yet, Pring and Canan found that targets who
fail to secure swift dismissal of a SLAPP frequently decide to settle in order to
avoid the expense and uncertainty of litigation, and such settlements invariably
require targets to stop their political opposition?).

SLAPPS are a national problem; scholars have long estimated that thousands
are ?led annually. See George W. Pring Penelope Canan, ?Strategic Lawsuits
Against Public Participation? an Introduction for Bench, Bar and
Bystanders, l2 Bridgeport L. Rev. 937 (1992). Traditional protections against
meritless lawsuits are often ineffective against them. Rule 11 sanctions against
parties bringing frivolous suits and potential countersuits for malicious prosecution
or abuse of process (sometimes called suits?) are dif?cult to win and
do little to save defendants from the high upfront costs of extensive litigation. John
C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, 26
Loy. LA. L. Rev. 395, 416, 431 (1993). And while federal common law provides
some protection of petitioning activity under the First Amendment?s petition
clause, this protection is very limited in scope and would offer no protection

against many SLAPP suits. 1d. at 425.

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Many states have stepped in to ?ll that void with legislation.
Recognizing that discussion of and participation in matters of public signi?cance
should not be chilled through abuse of the judicial process, states that have passed
laws ?provide SLAPP targets with an early opportunity to invoke
immunity for their legitimate petitioning activity, thereby facilitating the swift and
ef?cient dismissal of many SLAPP claims.? Quinlan, supra, at 367. They do so by
implementing a variety of procedures and standards that weed out meritless claims
without the burdensome discovery and litigation costs that would otherwise
accompany defense of those claims, see, eg. id. at 370?71 (explaining that the
?actual malice? standard governing liability for defamation introduces a ?fact
quagmire? that can often take a great deal of time and money for defendants to
escape). These measures often include, among other things, ?a special motion
under the statute that must be given priority on a court's calendar; the right to
appeal immediately if such motion is delayed or denied; and the stay of discovery
pending resolution of the motion.? Id. at 376 n.54. As of today, at least 28 states,

along with the District of Columbia and Guam, have enacted laws.?

 

?See Ariz. Rev. Stat. Ann. 12?751?12?752 (LexisNeXis 2014); Ark. Code
Ann. 16?63?501??16?63?508 (2014); Cal. Civ. Proc. Code 425.16 (Deering
2014); Del. Code Ann. tit. 10, 8136?8138 (2014); DC. Code 16?5501 (2014);
Fla. Stat. Ann. 768.295 (LexisNexis 2014); Ga. Code Ann. 9-11?
11.1, (2016); Guam Code Ann. tit. 7 ??17101?17109 (2014); Haw. Rev.

Case Document 20-1 Filed 11/01/16 Page 10 of 30

 

(continued. . .)

Stat. (LexisNeXis 2014); 735 111. Comp. Stat. Ann. 110/ 15?
110/25 (LexisNeXis 2014); Ind. Code Ann. (LeXiSNeXis
2014); La. Code Civ. Proc. Ann. art. 971 (2013); Me. Rev. Stat. Ann. tit. 14, ?556
(2014); Md. Code Ann, Cts. Jud. Proc. 5?807 (LeXiSNexis 2014); Mass. Gen.
Laws Ann. oh. 231, 59H (LexisNexis 2014); Minn. Stat. Ann. 55401?55405
(2014); Mo. Ann. Stat. 537.528 (2014); Neb. Rev. Stat. Ann. 25?21, 241?25-
21, 246 (2014); Nev. Rev. Stat. Ann. 41.637, 41.650?41.670 (LexisNexis
2013); NM. Stat. Ann. ?38-2-9.1 (LexisNexis 2014); NY. Civ. Rights Law 
a, 76-a (Consol. 2014); NY. C.P.L.R. 3211(g) (Consol. 2014); Okla. Stat. Ann. tit.
12, ?1443.1 (West 2013); Or. Rev. Stat. Ann. (West 2014); 27
Pa. Cons. Stat. Ann. ??7707, 8301?8303 (West 2014); R.1. Gen. Laws Ann. 9?
33-1w9?33?4 (West 2014); Tenn. Code Ann. Tex.
Civ. Prac. Rem. Code Ann. ??27.001?27.011 (Vernon 2013); Utah Code Ann.
(LexisNexis 2014); Vt. Stat. Ann. tit. 12, ?1041
(2014); Wash. Rev. Code Ann. 4.24.510?4.24.525 (LexisNexis 2014).

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B. Georgia?s Law

1. First enacted in 1996, and substantially revised this past year,
Georgia?s statute is similar in purpose and design to those of other
states. Like most, Georgia?s statute ?is intended to protect its citizens from having
their important First Amendment rights to free speech and to petition the
government chilled by the threat of being dragged into onerous judicial
proceedings by improper or abusive tort claims.? Royalty Network, 756 F.3d at
135; see also O.C.G.A. 9?1 l?l 1.1 (West) (?The General Assembly of Georgia
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?).
The statute insulates defendants against the chilling effect of SLAPPS by
permitting SLAPP defendants to file a special motion to strike, which triggers a
series of protections against the costs of defending the suit while the court
determines whether the plaintiff?s suit is legitimate. Among other things, once the
motion is filed, discovery is stayed (subject to a good?cause exception), and the
plaintiff must ?establish[] that there is a probability that [it] will prevail on the
claim.? Id. 9-1 1?1 1.1, Further, ifthe SLAPP defendant prevails on the
motion to strike, the statute also grants the defendant fees and costs in an amount

determined by the court. Id. 9?11-1 

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In 2016, the Georgia legislature broadened the applicability of the anti?
SLAPP law in two ways. First, the legislature expanded the scope of protected
speech. The original statute permitted its use only against suits attacking speech
made before, to or in connection with an of?cial proceeding or an issue under
consideration by an of?cial body. See Berryhill 12. Georgia Cmty. Support Sols,
Inc, 638 278, 279?80 (Ga. 2006). The amended statute protects ?[a]ny
conduct in furtherance of the exercise of the constitutional right of petition or free
speech in connection with a public issue or an issue of public concern.? Id. 9?11-
This language now clearly includes not just speech in connection with
official proceedings, or issues under consideration by of?cial bodies, but also more
generally conduct or speechmincluding by journalists, media entities and
producers of movies and television programss?on any matter of public concern.
See Berryhill, 638 at 279?80; Chris Dodd, Why Free Speech is Critical to
Film and Television Production in Around the World, The

Huffington Post, (last visited Oct. 24, 2016). The scope of

 

speech protected now mirrors that protected by several other states, including

California, Indiana, Louisiana, Maryland, and Rhode Island. See Cal. Civ. Proc.

 

5 See Joseph Inc. 12. Wilson 343 U.S. 495, 501?502 (1952) (motion pictures
protected by the First Amendment); Zucchini v. Scripps?Howard Broadcasting C0. 433 US. 562,
578 (1977) (?There is no doubt that entertainment, as well as news, enjoys First Amendment
protection?).

ll

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Code 425.16(e) (West 2016); Ind. Code 34m7~7?2 (West 2016); La. Code Civ.
Proc. art. (West 2016); Md. Code, Cts. Jud. Proc. 5?807(c) (West
2016); 9 R1. Gen. Laws 9?33??2(e) (West 2016).

Second, the legislature took steps that would permit the use of Georgia?s
provisions in federal court. The original statute had required the
plaintiff, in response to the motion to strike, to file a written veri?cation certifying
that its claim was well grounded in fact, warranted under existing law, and not
made for an improper purpose. However, the Eleventh Circuit recently deemed this
requirement inapplicable in federal court, because it con?icted with Rule 1 1 of the
Federal Rules of Civil Procedure. Royalty Network, Inc. 12. Harris, 756 F.3d 1351,
1362 (11th Cir. 2014). The Eleventh Circuit distinguished Georgia?s veri?cation
requirement from other state laws that did apply in federal court
because they only required the plaintiff to show a probability of success to defeat
the motion to strike, and thus did not conflict with any Federal Rules. Id. at 1361?
62. Taking the hint, the legislature eliminated the veri?cation requirement and
replaced it with a probability?of?success standard, thus clearing the way for use of
the law in federal court. O.C.G.A 9-?11?1 1.1, see also

infra Section 11B.

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2. In the years since Georgia enacted its law, it has served
as an important bulwark against suits brought to stifle constitutionally protected

speech. Just a few of the instances in which individuals have successfully staved
off SLAPPS thanks to Georgia?s law:

0 An action for malicious prosecution, intentional interference with
contractual relations, and defamation brought by a Hindu temple against
three individuals who had complained to the Gwinnett County Police
Department that they had contacted the temple ?to purchase ?religious
services,? only to later discover that their credit cards had been charged up to
ten times more than the agreed?upon amount.? Hindu Temple Cmty. Ctr.
oinglz Desert, Inc. v. Raghunathan, 714 628, 629 (Ga. Ct. App.
2011). They had also reported that the temple?s founder had been
misrepresenting himself as a medical doctor. The individuals successfully
sought dismissal of the suit under the law and were awarded
fees and costs. Id; see also Annamalaz' v. Capital One in. Corp, 738
664, 666 (Ga. Ct. App. 2013) (dismissing similar claim by same
religious temple founder).

A defamation suit brought by the Atlanta Humane Society against a former
volunteer Who criticized the organization?s practices on local television?
claiming that the organization never investigated animal cruelty and
disputing claims that it had 24?hour carewas well as a local journalist who
had covered the story. Harkins v. Atlanta Humane Soc ?32, 590 737,
738 (Ga. Ct. App. 2003), aff?d in part, rev?d in part and remanded, 603
289 (Ga. 2004). The defendants ultimately prevailed through use of
the law. Harkins v. Atlanta Humane Soc ?32, 618 l6, 17
(Ga. Ct. App. 2005).

0 Claims of slander and interference with business relations brought by a
former manager of Fulton County Schools? technology department against a
consulting firm that had made observations to the school board criticizing
the technology department. The firm secured dismissal of the claims under

13

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the law. Lovetz? v. Capital Principles, LLC, 686 411, 414
(Ga. Ct. App. 2009).

0 A slander action brought by a Georgia outdoor supply store against New
York City Mayor Michael Bloomberg for comments made in a press
conference about combating illegal gun traf?cking by ?rogue gun dealers?
who ignored federal laws. Bloomberg was able to secure dismissal of the
suit through the procedures afforded by Georgia?s law. See
Adventure Outdoors, Inc. v. Bloomberg, 705 241 (Ga. Ct. App.
2010)

In addition, other individuals who were unable to fend off the burdens (and
accompanying chilling effect) of SLAPPS using the previous version of Georgia?s
law likely would have success now that Georgia has expanded the
protection offered by the statute. Such cases include:

A libel complaint brought by an organization that assists disabled adults
against a woman who had sent emails and posted on an internet message
board about the poor treatment her disabled son had received. Among other
things, Ms. Berryhill stated that while her son was in the organization?s care,
it had not told her where he was; it had taken her two and a half months to
find him; and when she did, she learned that he had been kept in a backyard
shed and beaten. Georgia Cmty. Support 5015., Inc. v. Berryhill, 620
178, 180 (Ga. Ct. App. 2005), aff?d, 638 278 (Ga. 2006). The
Georgia Supreme Court rejected her attempt to seek relief through the anti-
SLAPP law, because her speech was not related to an official proceeding,
and Georgia?s statute did not include ?catchall language at the end as in
the comparable California and Louisiana statutes.? Berryhill,
638 at 281. Had the suit been pending today, Ms. Berryhill?s speech
on this obvious matter of public concern would have been protected by the
revised law.

0 A trademark~infringement action brought by Wal-Mart against a Georgia
resident who spoke out against Wal-Mart through operation of a website and

14

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by selling tnshirts that parodied Wal?Mart?s logo with phrases like ?Wal?
Ocaust? and The resident?s motion to strike was
denied because his statement were not related to a government proceeding.
WaZ~Mart v. Smith, 475 F. Supp. 2d 1318 (2007). Today?s broader revised
law would have applied.

0 An action for libel, ?injurious falsehood,? and intentional infliction of
emotional distress brought by a music publishing company against a Georgia
resident who provided consulting services and who had denounced the
company and their litigation tactics against him on a website. The consultant
sought relief under Georgia?s law, but the Eleventh Circuit held
that the veri?cation requirement of the statute prevented its application in
federal court. Royalty Network, 756 F.3d at 1362. In 2016, the Georgia
legislature removed the veri?cation requirement that was an impediment to
applying the law in federal court.

As the above examples demonstrate, Georgia?s law and others
like it serve a crucial role, insulating constitutionally protected speech of
individuals and organizations in a wide variety of settings from the chilling effect
of defending burdensome and expensive litigation. Without such laws, the freedom

of speech guaranteed by the First Amendment would be substantially undermined.

II. AN LAW APPLIES IN THIS CASE

Plaintiff in this case attacks Georgia?s law in three ways: He
says it violates the Seventh Amendment; that it does not apply in federal court; and
that it does not apply retroactively. Each of these attempts to eliminate or limit the

free-speech protection afforded by that law is unavailing.

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A. Georgia?s Law Is Constitutional

The Seventh Amendment preserves the right to a trial by jury in federal
court, including the right to have a jury resolve material factual disputes. U.S.
Const. amend. VII. But that right is not necessarily infringed by pleading standards
or similar screening mechanisms that permit a judge to make legal determinations
that result in dismissal of a claim before reaching a jury. To the contrary: ?In
numerous contexts, gatekeeping judicial determinations prevent submission of
claims to a jury?s judgment without Violating the Seventh Amendment. ellabs,
Inc. v. Makor Issues Rights, Ltd, 551 U.S. 308, 327 n.8 (2007). Rule 56?s
summary-judgment procedure permits judges to dispose of cases before they reach
a jury, see Pease v. Rathbun?Jones Engineering Co, 243 U.S. 273, 278 (1917);
judges may exclude expert testimony based on a judicial determination of
reliability, see Daubert v. Merrell Dow Pharmaceuticals, 17/10., 509 U.S. 579, 589
(1993); and ?[a]ny heightened pleading rule, including Fed. Rule Civ. Proc. 
could have the effect of? dismissing the case and ?preventing a plaintiff from
getting discovery on a claim that might have gone to a jury, had discovery occurred
and yielded substantial evidence.? ellabs, 551 U.S. at 327 n.9. Yet all of these

rules comport with the Seventh Amendment.

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Georgia?s law is no different. Far from wresting factual
determinations from a jury, section 9?1 1?1 merely requires the court to
determine whether ?there is a probability that the nonmoving party will prevail on
the claim? based on the pleadings and any af?davits submitted. The statute does
not ask the court to make any determinations regarding the credibility of the
alleged facts, and it does not require the court to resolve any disputed facts or
weigh them according to any evidentiary standard.

In this way, section 9?1 1?1 is similar to the heightened pleading
requirement of the Private Securities Litigation Reform Act (PSLRA), which
requires the complaint to (1) ?specify each statement alleged to have been
misleading [and] the reason or reasons why the statement is misleading,? (2) ?state
with particularity facts giving rise to a strong inference that the defendant acted
with the required state of mind.? Tellabs, 551 US. at 321. That is, both section 9?
11-1 1 . and the heightened pleading requirement ask only that the
court make a ?comparative assessment of plausible inferences? to determine
whether the claim should proceed beyond the pleadings stage. Tellabs, 551 US. at
326. Indeed, the PSLRA standard arguably requires a higher threshold to get the
case to a jury?particularized facts giving rise to a ?strong inference??than

Georgia?s law, which only requires a ?probability? of success. Yet the PSLRA

l7

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pleading standard complies with Seventh Amendment. Id. There is no basis for
concluding otherwise with respect to Georgia?s law.

In fact, no court has ever held that an statute like Georgia?s
infringes upon the right to a jury trial. As far as amici are aware, every court to
have considered an motion-to?strike provision with a ?probability of
success? standard similar to Georgia?s has construed the provision as akin to a
pleading standard rather than an evidentiary standard, such that it comports with
the Seventh Amendment. See Lafayette Morehoase, Inc. v. Chronicle Pub] ?g 
44 Cal. Rptr. 2d 46, 53 (Cal. Ct. App. 1995) (?Section 425.16 requires the plaintiff
whose cause of action is subjected to that special motion to strike simply to
demonstrate by af?davit a prima facie case. Thus, properly construed section
425.16, subdivision does not violate the right to a jury trial?), cited with
approval by Rosenthal 12. Great W. in. Sec. Corp, 926 P.2d 1061, 1071 (Cal.
1996); Nader v. Maine Democratic Party, 41 A.3d 551, 562 (Me. 2012) (?To avoid
an unconstitutional application of the law, as our rules of statutory interpretation
require us to do, section 556 must be construed [to] require only that the
nonmoving party provide prima facie evidence to support its burden of showing
that the moving palty's petitioning activity was ?devoid of any reasonable factual

support or any arguable basis in law and that the moving party's acts caused actual

18

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injury to the responding party?); Hi?Tech Pharm, Inc. v. Cohen, No. CV 16?
2016 WL 5334651, at (D. Mass. Sept. 22, 2016) (?Were this
Court to require Hi-Tech to make more than a prima facie showing that Cohen's
petitioning activities had no reasonable basis in fact or law, it would necessarily
impinge on the parties' Seventh Amendment right to a jury trial, inasmuch as it
would require this Court to make factual ?ndings and credibility determinations?);
S. Middlesex Opportunity Council, Inc. v. Town omemingham, No. CIVA 07-
12018-DPW, 2008 WL 4595369, at >?11 (D. Mass. Sept. 30, 2008) note that it is
possible for a judge to conclude as a matter of law that the legal claims raised are
based purely on petitioning activities. Such a decision does not usurp the role of
Cf Davis v. Cox, 351 P.3d 862, 868?69, 870 (Wash. 2015) (holding that
provision violated Washington state constitutional right to jury trial
because it required the plaintiff to establish a probability of success by ?clear and
convincing evidence?; distinguishing other states? statutes, which, like
Georgia?s, do not require a ?clear and convincing? burden of evidentiary proof);
Lez?endecker v. Asian Women United of Minnesota, 848 224 (Minn. 2014)
statute with ?clear and convincing? evidentiary burden violated state

constitutional right to jury trial).

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Consistent with this clear line of decisions, this Court should apply the
Georgia statute. Like the provisions upheld by other courts against
Seventh Amendment challenges, section 9?1 1?1 1.1 does not impose an evidentiary
burden or require the judge to ?nd disputed facts. Further, it is ?a relatively young
statute, not much construed by the state courts, and there is no reason to think the
state courts would construe [section 9?1 1?1 1.1] so as to be incompatible with the
Seventh Amendment.? Godz'n, 629 F.3d at 90.

B. Georgia?s Law Applies In Federal Court
1. Legal Standard

When there is a question whether to apply a state law in federal court, ?the
district court must first decide whether a [federal statute or Federal Rule] is
sufficiently broad to control the issue before the court.? Royalty Network, Inc, 756
F.3d at 1357?58 (quoting Burke v. Smith, 252 F.3d 1260, 1265 (11th Cir. 2001))
(internal quotation marks omitted). ?If the federal procedural rule is suf?ciently
broad to control the issue and conflicts with the state law, the federal procedural
rule applies instead of the state law.? Id. (quoting Burke, 252 F.3d at 1265)
(internal quotation marks omitted). If the federal rule does not ?control the issues
raised,? the court must make the ?relatively unguided Erie choice to determine

whether to apply the state law,? that is, to decide whether applying the state law (or

20

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not) would serve ?the twin aims of the Erie rule: discouragement of forum?
shopping and avoidance of inequitable administration of the laws.? Shady Grove
Orthopedic Associates, PA. 12. Allstate Ins. Co., 559 US. 393, 417, 130 S. Ct.
1431, 1448(2010) (Stevens, J., concurring) (quoting Hanna v.
Plumer, 380 US. 460, 468, 471 (1965)); see also Godirz v. 629 F.3d 79,
86 (lst Cir. 2010).

2. Royalty Network
In Royalty Network, 756 F.3d 1351, the Eleventh Circuit applied this

analysis to hold that the veri?cation requirement of Georgia?s previous anti-
SLAPP statute did not apply in federal court. The Court reasoned that Federal Rule
of Civil Procedure 11, which governs veri?cations to the court, is ?broad enough to
cover the issue,? and that the statute?s veri?cation requirement in fact
?directly with Rule 1 l, which ?explicitly provides that a pleading
need not be veri?ed or accompanied by an af?davit and allows parties discretion in
deciding whether to verify pleadings.? Id. at 1358?59. In reaching that conclusion,
the Court distinguished statutes from California, Louisiana, and
Maine, each of which required the SLAPP plaintiff only to establish a probability
of success on the merits rather than to ?le a veri?cation. Id. at 1362. In cases

involving each of those states? laws, a federal court of appeals held

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Case Document 20-1 Filed 11/01/16 Page 23 of 30

that the law in question remained applicable in federal court. See id. at
1361?62 (discussing US. ex rel. Newskam v. Lockheed Missiles Space Co, 190
F.3d 963 (9th Cir. 1999); Godin, 629 F.3d 79; and Henry 12. Lake Charles Am.
Press, L.L.C., 566 F.3d 164 (5th Cir. 2009)).

In the wake of the Royalty Network opinion, Georgia?s legislature amended
the statute, removing the veri?cation requirement and adding the
current motion?tonstrike provision, which largely mirrors the laws of
California, Louisiana, and Maine, among others. Compare O.C.G.A. 9?11?
with Cal. Civ. Proc. Code 425.16(e) (West 2016); La. Code Civ. Proc.
art. (West 2016); Me. Rev. Stat. tit. 14, 556.

3. Godin

The Eleventh Circuit has not addressed whether Georgia?s revised anti-
SLAPP law applies in federal court. However, in Royalty Network, the court
discussed at length the First Circuit?s determination that Maine?s highly analogous
anti-SLAP? statute, Me. Rev. Stat. tit. 14, 556, does apply. 756 F.3d at 1361m62
(discussing Godin, 629 F.3d 79). Because that analysis is directly on point and
highly persuasive, it deserves close attention in this case.

In Godz?n, the First Circuit concluded that Federal Rules 12 and 56 ?are not

so broad as to cover the issues within the scope of Section 556,? and that neither

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Case Document 20-1 Filed 11/01/16 Page 24 of 30

?attempt[] to answer the same question? nor ?address the same subject? as the anti?
SLAPP statute. Id. at 88. Unlike Rules 12(b)(6) and 56, Maine?s Section 556 on its
face is ?only addressed to special procedures for state claims based on a
defendant's petitioning activity.? Id. Further, Section 556 does not ?seek to
displace the Federal Rules or have Rules 12(b)(6) and 56 cease to function.? Id. In
addition, ?Maine itself has general procedural rules which are the equivalents of
Fed.R.Civ.P. 12(b)(6) and 56,? which ?further supports the view that Maine has
not created a substitute to the Federal Rules, but instead created a supplemental
and substantive rule to provide added protections, beyond those in Rules 12 and
56, to defendants who are named as parties because of constitutional petitioning
activities.?

The court then compared each federal rule to the statute.
Beginning with Rule the court noted that the federal rule ?serves to
provide a mechanism to test the sufficiency of the complaint.? Id. at 89. ?Section
556, by contrast, provides a mechanism for a defendant to move to dismiss a claim
on an entirely different basis: that the claims in question rest on the defendant's
protected petitioning conduct and that the plaintiff cannot meet the special rules

Maine has created to protect such petitioning activity against lawsuits.? Id.

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Case Document 20-1 Filed 11/01/16 Page 25 of 30

Rule 56 also did not control issues raised by Maine?s Section 556. That rule
?creates a process for parties to secure judgment before trial on the basis that there
are no disputed material issues of fact, and as a matter of law, one party is entitled
to judgment.? Id. And ?[i]nherent in Rule 56 is that a fact-?nder?s evaluation of
material factual disputes is not required.? Id. Section 556, on the other hand, has an
?entirely distinct function?; it ?protect[s] those speci?c defendants that have been
targeted with litigation on the basis of their protected speech.? Id.

Finally, the First Circuit rejected the plaintiff?s suggestion that permitting
dismissal of a case without affording discovery, as could happen under the anti-
SLAPP law, would bring the law into con?ict with Rule 56. The court explained
that discovery was still permitted for ?good cause shown,? and ?imposing on the
opponent of the motion the burden of justifying discovery[] is consistent with the
allocation of burdens under Rule 56(d), formerly Rule Id. at 90.

After finding neither Rule 12 nor Rule 56 broad enough to control the issues
raised by Maine?s statute, the Godin court moved to the second stage
of the analysis, 128., whether it should ?nonetheless decline to apply state law if so
declining would better advance the dual aims of Erie: ?discouragement of forum?
shopping and avoidance of inequitable administration of the laws.? Id. at 86

(quoting Hal/ma v. Plumer, 380 US 460 (1965)). The court concluded, however,

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Case Document 20-1 Filed 11/01/16 Page 26 of 30

that those dual aims were better served by applying the state law. Because the anti-
SLAPP statute ?substantively alters [state]?law claims that are based on a
defendant?s protected petitioning activity by shifting the burden to the plaintiff and
altering the showing the plaintiff must make,? ?[d]ec1ining to apply [the anti~
SLAPP statute] in federal court would result in an inequitable administration of
justice between a defense asserted in state court and the same defense asserted in
federal court.? Id. at 91?92 (citing Commercial Union Ins. Co. v. Walbrook Ins.
Co, 41 F.3d 764, 773 (lst Cir. 1994)). ?Likewise, were Section 556 not to apply in
federal court, the incentives for forum shopping would be strong?; ?electing to
bring state-law claims in federal as opposed to state court would allow a plaintiff to
avoid Section 556?s burden?shifting framework.? Id. at 92. Accordingly, the First

Circuit held that Maine?s law applies in federal court. 1d.

4. Applying The First Circuit?s Analysis to Georgia?s Anti?
SLAPP Law

The First Circuit?s analysis in Godin is thorough and persuasive, and it has
been cited favorably by other federal circuit courts. See, Makae?v. Tramp
Univ, LLC, 736 F.3d 1 180, 1184 (9th Cir. 2013) (denying petition for rehearing en
banc) Godin, the First Circuit thoroughly and persuasively analyzed Shady
Grove before concluding that Maine?s law was enforceable in federal

court?); cf. Royalty Network, Inc, 756 F.3d at 1361?62 (distinguishing the

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Case Document 20-1 Filed 11/01/16 Page 27 of 30

motion-to-strike provision of Maine?s statute from the veri?cation
requirement at issue in Georgia?s previous statute). Further, now that
Georgia?s law has been amended, there are no meaningful differences
between that law and Maine?s. Indeed, every feature the First Circuit relied upon to
conclude that Maine?s law applies in federal court is also present in Georgia?s
statute. Like Section 556, section 9?1 1?1 1.1:

?is only addressed to special procedures for state claims based on a
defendant's petitioning activity,? Godin, 629 F.3d at 88;

0 ?does not seek to displace the Federal Rules or have Rules 12(b)(6)
and 56 cease to function,? id;

0 ?provide[s] added protections, beyond those in Rules 12 and 56, to
defendants who are named as parties because of constitutional
petitioning activities,? id;

0 ?provides a mechanism for a defendant to move to dismiss a claim on
an entirely different basis [from Rule that the claims in
question rest on the defendant's protected petitioning conduct and that
the plaintiff cannot meet the special rules [Georgia] has created to
protect such petitioning activity against lawsuits,? id at 89;

0 serves a function, ?entirely distinct? from Rule 56, ?of protecting
those speci?c defendants that have been targeted with litigation on the

basis of their protected speech,? id;

0 ?shifts the burden to plaintiff to defeat the special motion? and ?also
determines the scope of plaintiff's burden,? id; and

0 permits discovery ?upon good cause shown,? thus preventing a
potential conflict with Rule 56, id at 90.

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Case Document 20-1 Filed 11/01/16 Page 28 of 30

Finally, as in Maine, declining to apply Georgia?s law would
result in the same ?inequitable administration of justice? and forum~shopping
concerns. Id. at Accordingly, amici submit that this Court should adopt the
sound and thorough reasoning of the First Circuit in Godin and conclude that
Georgia?s materially identical law applies in federal court.

C. Georgia?s Law Applies Retroactively

The legislative history of the 2016 amendments to Georgia?s 
law indicates that the General Assembly expected the law to apply retroactively.
An initial draft of the amendment included language limiting application of the
amended statute ?to all claims made on or after July 1, 2015,? LC 41 0455 at
3:106?07. However, the legislature chose not to include that language in the ?nal
law, see 2016 Ga. Laws Act 420 (HB. 513) at 4. Removing language precluding
retroactivity suggests that the legislature preferred retroactive application of the
amended statute.

CONCLUSION

Georgia?s law affords indispensable protection against the
chilling effects of abusive litigation brought to silence constitutionally protected
expression. Amici submit that this Court should hold that this law is constitutional,

applies in federal court, and applies retroactively.

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Case Document 20-1 Filed 11/01/16 Page 29 of 30

Dated: October 31, 2016

Hull Barrett, PC

Post Of?ce Box 1564
Augusta, GA 30903-1564
706-722-4481 Phone
706?722-9779 Fax
dhudson@hu11barrett.com

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David E. Hudson
David E. Hudson
Georgia Bar No.: 374450

ATTORNEYS FOR
AMICI CURIAE

Case Document 20-1 Filed 11/01/16 Page 30 of 30

CERTIFICATE OF SERVICE
This is to certify that I have this day electronically ?led the foregoing
document with the Clerk of Court using the system and served upon

counsel of record by electronic ?ling.

This 31st day of October, 2016.

David E. Hudson
David E. Hudson

 

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