Oral Arguments in Court of Appeals

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On November 17, just before my oral arguments began, the Georgia Court of Appeals issued a ruling that Barbara Harkins, whom the AHS sued for criticizing them in a televised exposé of the humane society, had a First Amendment right to express her opinion, and ordered the trial court to dismiss the case.

On November 21, the Appeals Court ruled the Harkins decision applied to my case and ordered my case dismissed as well.

However, neither case is over yet. In oral arguments in my case, AHS attorney Ed Greenblatt indicated the AHS would appeal the finding to the Georgia Supreme Court.

The Georgia Supreme Court is unlikely to hear the appeal, based on its decision just days ago in another libel suit. In Gast v. Brittain, the Supreme Court reversed an Appeals Court ruling and found that a resignation letter written by an Eagle Scout youth leader criticizing troop leaders as "immoral" did not constitute actionable libel because the statements were opinion that could not be proved true or false.

If the Georgia Supreme Court refuses to hear AHS' appeals, both cases will be remanded to the trial courts for dismissal and refund of our legal fees.

The brief, two-page decision states, "In Harkins, we concluded that the controversy at issue was 'an issue of public concern' ... and that 'Harkins has a substantive right to exercise her constitutional right of free speech regarding a matter of public concern. The trial court therefore should have dismissed appellees' defamation lawsuit that was initiated in response to Harkins's protected statements.' ... Mills also has this substantive right in connection with her comments on the same matter of public concern."

According to its 990 forms, posted on Guidestar.org, the AHS spent $7,323 in 2001 and $135,003 in 2002 on legal fees. Between their own expenses and reimbursing Barbara and I, the AHS will spend nearly a quarter of a million dollars on these illegal lawsuits, money that was donated to them by kindhearted people to benefit the pets in their care.

Oral Arguments

During AHS' oral arguments in my case, Judge Smith asked incisive questions of Greenblatt, including why the AHS chose to sue two individuals and not the television station (WSB-TV) that aired the three-part expose that started the furor. Greenblatt stated that they felt their case against Barbara and I was stronger because we supposedly knew our statements were false, or we made our statements with reckless disregard for whether they were true or false, whereas WSB could state that they knew only what their sources told them. The judge clearly saw through this excuse, saying he didn't feel it was right for the AHS to sue two individuals and not the media that broadcast the allegedly false statements.

When Greenblatt argued that ruling both cases as SLAPP suits would change the nature of philanthropy across the country, because non-profit organizations could not afford to be held to the same standards as government agencies, Judge Smith asked Greenblatt where he drew the line in terms of allowing government agencies to hide from public criticism by contracting services out to private organizations. Greenblatt had no ready answer to that question. Begner addressed the issue, stating that a ruling in my favor would not affect charities' ability to do anything but sue critics, and reiterated the point that any organization that provides essential government services, no matter what its nature, is subject to the same standards of public criticism as the government itself.

Selected excerpts from the Harkins decision:

"We hold that ... the undisputed facts here reveal that the lawsuit initiated by AHS and its executive director was prohibited by the statute and should have been dismissed."

"Clearly under this statute, Harkins has a substantive right to exercise her constitutional right of free speech regarding a matter of public concern. The trial court therefore should have dismissed appellees' defamation lawsuit that was initiated in response to Harkins's protected statements. We direct the trial court, upon receipt of the remittitur, to dismiss the complaint."

SLAPP

We argue that this suit is a SLAPP (strategic lawsuit against public participation) that should have been dismissed by the Gwinnett Superior Court. Our augument can be summed up as follows:

In 1996, the Georgia General Assembly passed legislation known as the Anti-SLAPP statute, O.C.G.A. § 9-11-11.1. The statute’s purpose is to protect Georgia citizens from abusive litigation while exercising their right of free speech, and specifically while addressing matters of public concern.

O.C.G.A. § 9-11-11.1 (c) defines an “issue of public concern” as “…any written or oral statement…made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or…made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” Animal control services have been the subject of multiple Fulton County Commission meetings, and there can be no question that the Fulton County Board of Commissioners is a legislative body within the meaning of the term used in O.C.G.A. § 9-11-11.1 (c).

It is clear through WSB’s reports and through multiple meetings of the Fulton County Board of Commissioners, that the matters of animal control and Plaintiffs’ performance of their duties are matters of public concern. My comments were merely my opinions on these issues, and should not be silenced by legal bullying. Free speech and allowing our citizens to criticize institutions and officials regarding matters of public concern is a Constitutionally protected right, and Georgia has added an extra layer of procedural protection to this right through the Anti-SLAPP statute. Allowing Plaintiffs to silence their critics through legal action flies in the face of the General Assembly’s intent for the Anti-SLAPP statute.

For the complete argument with citations, read Defendant's Motion to Dismiss SLAPP Suit.

Summary Judgment

We also request summary judgment for the following reasons:

My comments concern important matters of public concern and must be judged in the context in which they were published. My comments consist of factual summaries and commentary concerning the November 1, 2001 WSB television investigative report which was critical of the operation of the Atlanta Humane Society, its executive director Bill Garrett, and Fulton County Animal Control. It is important to note that my postings to the atlantarescue discussion group were published to a very limited audience and were excerpted out of context in Plaintiffs’ complaint.

The right to freedom of expression concerning matters of public interest is protected by the First Amendment of the United States Constitution. It is within this context—our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials—that my statements should be evaluated.

The historic United States Supreme Court opinion New York Times Co. v. Sullivan held that a public official may not recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. “[W]here a publication is protected by the New York Times immunity rule, summary judgment, rather than trial on the merits, is a proper vehicle for affording constitutional protection ... [B]ecause of the importance of free speech, summary judgment is the ‘rule,’ and not the exception in defamation cases”.

The Atlanta Humane Society is a governmental entity and is absolutely barred from prosecuting a cause of action for defamation. The Georgia Supreme Court unequivocally makes clear that “governments and governmental entities cannot maintain an action for libel.” The Atlanta Humane Society is a public entity because it is funded by taxpayers and performs essential public and governmental functions. It is a public actor for purposes of its management of Fulton County Animal Control because it has administered the essential public governmental functions relating to animal control under a contract with Fulton County for more than twenty years. Even the State Attorney General’s Office has itself recognized the AHS as a public entity for purposes of the Georgia Open Records Act. The AHS is no more able to prosecute a defamation suit than it is to evade public scrutiny under the Open Records Act on the basis that it is a “private” entity.

Garrett is a public official. He is the executive director of a public organization that makes and enforces government policy with regard to animal control and essential public health services. He makes the budgetary determinations and is the public face of Fulton County with regard to issues of animal control.

My comments are not defamatory. A defendant can be held to pay damages for libel only if the statements published are defamatory; that is, they tend to injure the reputation of the person or entity and expose them to public hatred, contempt, or ridicule. Some of the comments identified by plaintiffs in their complaint simply do not inflict injury, hatred, contempt, or ridicule upon the plaintiffs. Other comments are simply my subjective opinions of plaintiffs’ performances in administering public functions. All of this is the expression of opinions in which I am entitled to engage.

My comment, “Bill Garrett is not worthy to lick the dog or cat poop off our shoes. He is evil and it is time for the Atlanta rescue community to unite in ending his long and tragic career not only at AHS, but in every pet-related capacity” is simply not capable of proof or disproof, and cannot be held as libel. Clearly, I believe that Garrett’s performance as a leader of the animal welfare community has been poor, and this comment is intended as a figurative expression of this opinion. Garrett’s qualifications for removing pet excrement from footwear with his tongue are not subject to objective analysis. Likewise, an evaluation of Garrett’s capacity for metaphysical “good” or “evil” and the appropriate time for him to “retire” are purely matters of opinion. I am simply saying that I believe Garrett is no good at performing his public functions and the animal welfare community should work together to replace him.

My comments are non-literal, figurative speech or rhetorical hyperbole, intended not to accuse Garrett of a crime, but to suggest he is morally responsible for the deaths of thousands of animals through his ineffective leadership of AHS and Fulton County Animal Control. The Constitution provides protection for “rhetorical hyperbole” that “cannot reasonably be interpreted as stating actual facts about an individual.” If my comment is read to suggest that Garrett is an animal killer, then it is a figurative title meant to highlight the enormous percentage of animals killed by organizations under his authority. Of the 22,805 animals taken in or impounded by the Atlanta Humane Society and Fulton County Animal Control in 2001, approximately 15,000 of them were killed by Garrett’s organizations. And that’s only one year—Garrett has been executive director of the AHS for nearly thirty years.

My comments were not published with actual malice. Plaintiffs must establish by clear and convincing evidence—a standard higher than “by a preponderance”—that my comments are not Constitutionally protected, are false, and I published them with either knowledge that they were false or with reckless disregard for whether they were false. As detailed above, many of my comments are either not defamatory, Constitutionally protected opinions, or non-literal, rhetorical hyperbole which is also Constitutionally protected. Each of my opinions is also protected because they are commentary based on the truth, or were not published with reckless disregard for the truth.

Each of my comments concern my opinion that the Atlanta Humane Society, Fulton County Animal Control, and Garrett perform their responsibilities poorly with respect to animal welfare. Although this is clearly a matter of opinion, it is also clear that the facts upon which my statements are based are in fact true. Under the “leadership” of Garrett, the AHS and Fulton County Animal Control kill thousands upon thousands of animals each year. This is absolutely undisputed. These facts are taken from the AHS’ promotional material. Barbara Harkins, in an affidavit filed in connection with similar litigation in Cobb County, swears that while working at AHS, she “began to notice significant problems: the lack of animal cruelty investigations, the problematic spay/neuter policy, the animal adoption statistical problem.” The WSB television news reports confirm the same failures. My opinions are not only Constitutionally protected but they are accurate.

My language is very critical and extremely candid but I am entitled to offer my comments. Although these words may hurt Garrett’s feelings, it is part of the social contract he signed onto as a public official charged with the responsibilities of carrying out the public’s business. Criticism of public officials is a “fundamental principle of our Constitutional system” that includes “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” This is how we, as Americans, guarantee that our government officials carry out the responsibilities that we entrust to them.

For the complete argument with citations, read Defendant's Motion for Summary Judgment.

Oral Arguments in Court of Appeals

Oral Arguments

SLAPP

Summary Judgment

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