American Civil Liberties Union, Inc. v. Zeh

B. Reid Zeh served as Glynn County's appointed public defender for misdemeanor cases. After the ACLU sued Zeh and county officials in federal court over an allegedly unfair bail system, the ACLU published a blog post accusing Zeh of ignoring indigent clients and illegally charging a woman named Hamilton $2,500 to represent her son. Zeh sued the ACLU for defamation, and the ACLU tried to have the suit thrown out early under Georgia's anti-SLAPP law, which lets people quickly end lawsuits meant to punish speech on public issues. The trial court and the Court of Appeals of Georgia both let Zeh's lawsuit proceed, reasoning he was not a public official and only needed to show ordinary negligence. The Supreme Court of Georgia disagreed, holding that as the sole public defender responsible for Glynn County's misdemeanor cases, Zeh was a public official under constitutional defamation law. That meant Zeh had to show the ACLU knew its statements were false or recklessly disregarded their truth, a tougher standard he could not meet based on the existing evidence, though the case goes back for discovery rulings.

Because Zeh, as Glynn County's sole misdemeanor public defender, had substantial responsibility over a government function, he qualified as a public official, requiring him to prove by clear and convincing evidence that the ACLU knew its statements were false or acted with reckless disregard of their truth; on the existing record he failed to meet that standard.

The ruling clarifies that public defenders in Georgia can be treated as public officials for defamation purposes, making it harder for them to sue critics successfully. It also strengthens Georgia's anti-SLAPP protections for journalists, advocacy groups, and news outlets reporting on public officials' conduct.

Reversed and remanded with direction

1. The court explained that an anti-SLAPP motion under Georgia's anti-SLAPP statute (OCGA § 9-11-11.1), a law letting defendants quickly end lawsuits meant to punish protected speech, involves two steps: first showing the claim arises from protected speech, then requiring the plaintiff to show a probability of winning on the merits.
2. Because Zeh's claim clearly arose from protected activity, the dispositive question was whether he could show a probability of prevailing on his defamation claim, which under the First Amendment depends on whether he counts as a 'public official' subject to the tougher New York Times actual malice standard requiring proof the speaker knew a statement was false or recklessly disregarded its truth.
3. Applying the test from Rosenblatt v. Baer, which asks whether a government position carries apparent importance giving the public an independent interest in the officeholder's performance, the court found Zeh, as Glynn County's sole appointed misdemeanor public defender responsible for deciding who received representation, met that standard, disapproving a prior Georgia case's narrower reasoning.
4. Reviewing the record independently, as required for public-official defamation claims, the court found the ACLU relied on sworn federal court filings and declarations from Cox and Hamilton, had no obvious reason to doubt them, and its failure to further investigate court records or contact Zeh before publishing did not amount to clear and convincing evidence of actual malice.
5. Because the trial court had never ruled on Zeh's pending discovery requests, which could potentially uncover new evidence of actual malice, the court could not finally resolve the anti-SLAPP motion and instead sent the case back for the trial court to decide those discovery motions first.

• defamation lawsuit
• anti-SLAPP motion
• public official standard
• ACLU blog post
• public defender