A Constitutional Counterpunch to Georgia's Anti-SLAPP Statute

Authors

Nick Phillips
Ryan Pumpian

Publication Date

3-2018

Document Type

Article

Abstract

A "Strategic Lawsuit Against Public Participation"-commonly referred to as a "SLAPP-is a lawsuit intended to chill free speech and healthy public debate and to otherwise intimidate people from speaking out on issues of public concern. True SLAPP suits strike at the heart of the United States and Georgia Constitutions, specifically the rights to free speech and to petition the government enshrined therein. In recent years, state legislatures, including the Georgia General Assembly, have attempted to ward off SLAPP suits through legislation-commonly referred to as "anti-SLAPP" statutes-aimed at the early dismissal of SLAPPs and the award of attorney's fees and costs to the SLAPP target.

Anti-SLAPP statutes are, arguably, well-intended. The expressed aim of anti-SLAPP statutes is to promote the right to free speech and to petition-and some would argue, democracy as we know it-by attempting to prevent or discourage SLAPP suits and provide for their quick dismissal if filed. Yet, in attempting to promote the SLAPP target's constitutional rights to free speech and to petition the government, anti-SLAPP statutes often infringe on the plaintiffs constitutional rights, including the right to a jury, due process, equal protection, and ironically, the right to petition. Georgia's anti-SLAPP statute is no exception.

This Article explores the constitutionality of section 9-11-11.1 of the Official Code of Georgia Annotated (O.C.G.A.), Georgia's anti-SLAPP statute. Part I offers a brief historical perspective on SLAPP suits and the different judicial and legislative remedies to SLAPPs used or suggested by commentators. Part II discusses the framework, procedure, and applicability of Georgia's anti-SLAPP statute. Part III discusses the constitutional infirmities of Georgia's anti-SLAPP statute, concluding that the statute is likely unconstitutional. Finally, Part IV proposes alternatives to Georgia's anti-SLAPP statute that both better promote the aims of the statute and do not run afoul of the United States or Georgia Constitutions.

Recommended Citation

Phillips, Nick and Pumpian, Ryan (2018) "A Constitutional Counterpunch to Georgia's Anti-SLAPP Statute," Mercer Law Review: Vol. 69: No. 2, Article 2.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol69/iss2/2