High court secures free speech protections in Georgia

In a court victory with First Amendment implications, the Supreme Court of Georgia has ruled that the state’s anti-SLAPP statute protects a speaker from being sued for defamation for criticizing a public official, unless the speaker was aware their statements were probably false.

The Georgia Supreme Court further held that the speaker’s failure to exhaustively investigate before making the critical statements does not establish a reckless disregard for the truth. This decision reinforces Georgia’s anti-SLAPP statute.

Strategic lawsuits against public participation, or SLAPPs, once emboldened litigants seeking to use groundless defamation and other claims to chill free speech in Georgia. With its Oct. 19 opinion in ACLU v. Zeh, the state’s highest court corrected a lower court decision that would have weakened free-speech protections codified by Georgia’s anti-SLAPP statute.

The Georgia First Amendment Foundation partnered with the University of Georgia School of Law’s First Amendment Clinic in April 2021 on a friend-of-the-court brief in ACLU v. Zeh, arguing that the Court of Appeals of Georgia failed to apply the “actual malice” standard when determining whether a defamation lawsuit against the ACLU survived a motion to strike under Georgia’s anti-SLAPP statute. It expanded upon a previous friend-of-the-court brief filed in July 2020.

In 2016, the foundation supported efforts by CNN and other media companies to curb SLAPPs in the state. The resulting law was the most effective legislative protection of free speech rights in Georgia in 20 years.

Go to the First Amendment Clinic’s website for background on the case and a summary of the legal arguments.

Release of documents aligns with law on public access to government contractors’ records

By Clare Norins and Nneka Ewulonu

Atlanta Falcons Stadium Co. voluntarily released records of its work on behalf of a government agency, rather than face a potentially unfavorable appellate court ruling in an open records lawsuit. With the public documents released, the Georgia Court of Appeals dismissed the appeal.

When a Georgia government agency contracts a private entity to carry out a function or service for the agency, documents relating to that activity must be open to the public. The Atlanta Falcons Stadium Co. tacitly acknowledged as much when it handed over 1,500 pages of records before the the Appeals Court of Georgia could rule on whether the records should be made public. Because the records were released, the Court of Appeals in June dismissed the case, Love v. Atlanta Falcons Stadium Co., as moot.

The Georgia Open Records Act gives the public the broad right to see, inspect, and copy all public records. That includes “all documents … prepared and maintained or received … by a private person or entity in the performance of a service or function for or on behalf of an agency.” [See Sunshine Laws: A Guide to Open Government in Georgia or O.C.G.A. § 50-18-70(b)(2).] In the past, this has assured public access to records relating to, for instance, private companies contracted by government agencies to provide public health services, administer state insurance plans and execute large public construction projects.

Documents covered by ‘plain language’ of law

Here’s the background of Love v. Atlanta Falcons Stadium Co. The Georgia World Congress Center Authority is a state agency that promotes recreation, athletics and tourism. In 2013, the authority contracted with private entity Atlanta Falcons Stadium Co., called StadCo, to build and maintain the Mercedes Benz Stadium in Atlanta. The stadium, like the Georgia Dome it replaced, is a sports and retail venue. It’s the home stadium for the Atlanta Falcons professional football team and Atlanta United FC professional soccer club, and the stadium regularly hosts college and high school championship games.

Rather than build and maintain the Mercedes Benz Stadium itself, as its legal mandate authorizes, the Georgia World Congress Center Authority contracted the work to StadCo. In addition, taxpayer dollars were used to finance a portion of the stadium’s construction, as was detailed by the Atlanta Journal-Constitution in 2016.

At the heart of the Love case is a request by a member of the public to inspect and copy construction documents and loan agreements held by StadCo relating to its stadium contract with the Georgia World Congress Center Authority. These documents clearly fall within the plain language of the Georgia Open Records Act’s definition of “public records.” Additionally, Georgia courts have recognized that spending taxpayer dollars to pay a private entity creates a strong public interest in disclosure of related records.

Nonetheless, StadCo asserted that because it is a private entity, it is not subject to the Open Records Act. And, in June 2020, the Fulton County Superior Court erroneously agreed. The flawed decision: Since the Georgia World Congress Center Authority was not required by its legislative charter to build the stadium, but was merely authorized to do so, records relating to the authority’s contract with StadCo to construct and maintain the stadium were not open to the public.

Fabricated distinction does not reflect Sunshine Laws

The holding by the trial court fabricated a distinction between mandatory and discretionary work of a government agency under the Georgia Open Records Act. This distinction appears nowhere in the Act itself, nor in any other case law interpreting the Act. In fact, the trial court’s reading of the statute runs directly counter to the law’s explicit public policy goals of promoting transparent government. The Open Records Act states, “Public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.”

Our friend-of-the-court brief, filed on behalf of the Georgia First Amendment Foundation and other interested parties, further explains the disconnect between the trial court’s ruling and the state’s Open Records Act.

By turning over the documents voluntarily, StadCo avoided the possibility of an appellate court ruling against them. StadCo’s decision to turn over these documents is now itself part of the court record, signaling that documents about work done by a private entity on behalf of a government agency must be accessible to the public, as the law requires.

Clare Norins is an assistant clinical professor and director of the First Amendment Clinic at the University of Georgia School of Law. She is also a member of GFAF’s board of directors.

Nneka I. Ewulonu is a May 2021 graduate of the University of Georgia School of Law and was enrolled in the First Amendment Clinic during the fall 2020 semester.

Photo: Mercedes Benz Stadium under construction in 2017. Courtesy of Curtis Compton/AJC

First Amendment groups demand journalist be given access to cover Ga. GOP convention

On Friday, June 4, 2021, Georgia Public Broadcasting’s primary political correspondent, Stephen Fowler, was excluded from covering the Georgia Republican Party’s state convention. The University of Georgia School of Law’s First Amendment Clinic, the Georgia First Amendment Foundation and the Atlanta Press Club sent a letter to the state GOP demanding that Fowler be allowed access to cover the convention. The Society of Professional Journalists’ Georgia Chapter Board of Directors also supports the effort.

When Fowler arrived at the Jekyll Island Convention Center Friday morning for press credentialing, he was told that only a select group of media had been invited and that he was not on the list. Fowler was asked to leave the Convention Center, first by a staffer and then by Georgia Republican Party Executive Director Stewart Bragg. Meanwhile, reporters from other media outlets were granted entrance, including from the Atlanta Journal-Constitution, Atlanta’s WABE radio station and members of the Georgia Press Association. The Georgia GOP’s bylaws state that their conventions shall be open to the public.

The Georgia GOP Convention is an event of intense public concern. Elected officials from across the state, including Gov. Brian Kemp, are scheduled to give speeches at the convention, speaking publicly on matters of importance to every Georgian. The convention also is where the state Republican party selects its leaders and sets its platform for coming years.

Fowler is an award-winning reporter and photographer. In January 2021, he reported extensively on then-President Donald Trump’s recorded telephone call to Georgia Secretary of State Brad Raffensperger. In that call, Trump urged Raffensperger to overturn the state’s 2020 presidential election results and declare Trump the winner. Fowler also has reported on the Georgia GOP’s perpetuation of false claims of voter fraud in the presidential election.

Excluding Fowler while other journalists were allowed entrance to do their work is discriminatory and goes against the principles of press freedoms and public access enshrined in Georgia’s Sunshine Laws and the U.S. Constitution, as the letter details.

The First Amendment Clinic, GFAF, the Atlanta Press Club and SPJ Georgia’s board of directors condemn the state GOP’s exclusion of Fowler from its ongoing convention and demand that he be allowed access.

GFAF partners on media training for law enforcement

The Georgia First Amendment Foundation has partnered with the Society of Professional Journalists Georgia Chapter to develop an online training course for the Georgia Public Safety Training Center (GPSTC).

The course, led by SPJ GA and produced with guidance from GFAF and the University of Georgia Law School’s First Amendment Clinic, trains law enforcement and other public safety officials on effectively handling interactions with the news media during volatile events of public interest, such as protests and riots.

The goal of the course is to develop greater understanding that leads to more respectful interactions between law enforcement officers and members of the press and avoids police use of force.

Read SPJ GA’s press release for more information, and watch the video of “Police & the Press: Get the Facts about News Coverage of Protests” —  a May 6, 2021, panel discussion about what journalists and law enforcement officers need to know about one another’s roles and rights.

 

Will knowing less about cyberattacks really make Georgians safer?

By Sarah Brewerton-Palmer and Nneka I. Ewulonu

Proposed legislation would limit Georgians’ right to know about cybersecurity activities and incidents.

Georgia lawmakers are taking swift action on cybersecurity bills with open government implications. The Georgia First Amendment Foundation stated our opposition to these bills, which we believe would limit visibility into what government agencies at all levels are doing. We also contend that existing laws provide the exceptions government officials need to protect against cyberattacks.

Nonetheless, lawmakers from both parties are resoundingly behind the proposals. Both bills passed the House with 0 nays. One measure, House Bill 156, already has passed both chambers. The pace is troubling.

Proponents of these bills say they would make Georgians — and the government technology systems we all rely on — more secure. But dig into the details, and it’s clear that these protections would come at the expense of Georgians’ right to know. Protecting government agencies against cyberattacks is important and requires some secrecy, but the foundation is concerned that these bills are an unnecessary departure from the principles of open government. They give public institutions broad leeway to close meetings or shield records.

Proposals would erode the public’s right to know

HB 156 requires public agencies and utility companies to report cyberattacks and data breaches to homeland security and emergency management officials. The bill further provides that “[a]ny reports or records produced pursuant to this code section shall not be subject to public inspection or disclosure” under the Georgia Open Records Act.

House Bill 134 would allow government agencies to close meetings “when discussing or deliberating upon cybersecurity plans, procedures, and contracts regarding the provision of cybersecurity services.” While the identity of the contractor and terms of the agreement must be disclosed in a public meeting before voting to approve a cybersecurity contract, the proposed legislation would permit the government to hide all other discussions involving cybersecurity.

The bill would also exempt from the Open Records Act “[a]ny document or plan for protection relating to the existence, nature, location, or function of cybersecurity devices, programs, or systems designed to protect computer, information technology, or communications systems against terrorist or other attacks.”

That sweeping language has the potential to hide information about how governments pay for or manage computer networks — information that might not be directly related to combating cyberattacks. Taken to the extreme, it could allow government agencies to keep information about data breaches secret — even if the cause is public officials’ incompetence or malfeasance.

The foundation sees three major problems with HB 134. First, it does not sufficiently define the type of cybersecurity discussion that would qualify for public officials to go into executive session behind closed doors. Second, it would shield from the public essentially any record that touches upon cybersecurity — regardless of whether disclosure of the record would harm cybersecurity efforts. Third, its secretive provisions simply are not necessary. Georgia’s existing Sunshine Laws already allow officials to shield public records related to “[s]ecurity plans and vulnerability assessments for … technology infrastructure” where the disclosure of the requested records would compromise security (O.C.G.A. § 50-18-72(25)(A)(i)).

Without appropriate limitations, HB 134 would weaken the spirit and purpose of our state’s Open Meetings Act and Open Records Act.

Lawmakers can balance cybersecurity and transparency

The foundation recommends that lawmakers amend HB 134’s provisions related to closed meetings and public records to allow for secrecy only when necessary to provide essential cybersecurity protection. Specifically, lawmakers should amend the bill to make it consistent with existing open records laws, allowing meetings to be closed or public records to be withheld only when the disclosure of those deliberations or records “would compromise security against sabotage or criminal or terrorist acts” and when the secrecy of those deliberations or records “is necessary for the protection of life, safety, or public property.”

Changing House Bill 156 is more complicated because the bill already has passed both the House and Senate and soon will head to Gov. Brian Kemp for his signature. But the law could be improved in a future General Assembly session to shield from the public only narrow, relevant portions of public records that could “compromise security against sabotage or criminal or terrorist acts.”

These immediate amendments to HB 134 and future improvements to HB 156 would better protect Georgians’ right to know, while also protecting our government agencies against cyberattacks.

Lawmakers — and especially the Georgians they represent — should pause to grasp the consequences of allowing these bills to become law in their current forms. These measures attempt to increase our security by limiting our understanding of what our government is doing. Does that really make us safer?

Sarah Brewerton-Palmer, a foundation board member and chair of GFAF’s Legislative Committee, is an attorney at Caplan Cobb in Atlanta.

Nneka I. Ewulonu is a third-year student at the University of Georgia School of Law.

Photo courtesy of Ross Williams/Georgia Recorder

GFAF supports Clarke parent’s fight for access to school data about COVID

A parent denied access to Clarke County School District records about COVID-19 case counts has filed a complaint with the Georgia Attorney General’s Office, and the Georgia First Amendment Foundation is supporting her fight.

A Feb. 25 letter from the Foundation argues that the Clarke County School District intentionally delayed access to public records sought by Carrie Bishop, whose child is a student in the district. In addition, the Foundation argues that the school district’s rationale for denying records was based on an erroneous interpretation of the Georgia Open Records Act. (Read the full letter.)

The Georgia First Amendment Foundation is a nonprofit, nonpartisan organization committed to supporting Georgians’ access to public records, meetings and court proceedings and protecting free speech rights.

Court rules investigation records, once released, can’t be kept from the public

Investigation records released to the public can’t later be restricted from public access, according to an Oct. 14 ruling in Cobb Superior Court.

The ruling requires the Cobb County Sheriff’s Office to provide to WXIA-TV previously released records about inmate deaths at the Cobb County Adult Detention Center.

The decision by Cobb Superior Court Judge A. Gregory Poole is a win for government transparency. Poole’s ruling means that once files related to an investigation are made public, those records no longer qualify for an exemption under the Georgia Open Records Act.

The Georgia First Amendment Foundation joined with other government transparency advocacy groups to file a friend-of-the-court brief supporting WXIA’s argument that the Atlanta broadcaster was entitled to investigation records previously released to other media outlets. WXIA successfully argued that the records could not be clawed back from public access simply because they also were being used in a separate investigation into another inmate death at the detention center.

Read coverage of the case by WXIA and the Atlanta Journal-Constitution.

 

Law enforcement and the First Amendment: What you need to know

The Georgia First Amendment Foundation’s Law Enforcement and the First Amendment virtual training session on Oct. 9 explored ways the First Amendment protects the public’s right to record police; the rules of engagement when journalists and citizens record police in action; and how free speech rights come into play in encounters between the public and police.

Watch the video to get the facts from our panel of experts:

  • Vic Reynolds, Director, Georgia Bureau of Investigation
  • Zoe Bambara, Community Organizer & Activist
  • Sarah Brewerton-Palmer, First Amendment Attorney, Caplan Cobb LLP
  • Clare Norins, Director, First Amendment Clinic, UGA School of Law
  • Gerry Weber, First Amendment Attorney, Gerry Weber LLC and Southern Center for Human Rights

Want to know more? Check out these additional resources:

Georgia Supreme Court stays ahead of the pandemic — to the public’s benefit

Justices’ foresight in creating a pandemic plan has kept Georgia courts operational and accessible to the public during COVID-19. We applaud the Georgia Supreme Court’s leadership at our 2020 Weltner event, happening online Oct. 15.

By Peter Canfield and Richard T. Griffiths

Across the country courts have struggled with accommodating public access to court proceedings during the pandemic, but not the Supreme Court of Georgia.

Over a decade ago when then Chief Justice Leah Ward Sears handed junior Justice Harold D. Melton the assignment to come up with a pandemic plan for Georgia’s courts, he admits he was skeptical.

“You know, anybody who is doing work, anything on a daily basis, can think of things that they need to be doing instead of planning for something that may or may not happen,” Melton recalled.

But his views changed when he started working on the pandemic plan.

In 2009, Melton and a volunteer group of lawyers and public health experts completed a 177-page Georgia Pandemic Influenza Bench Guide, updated and revised in 2018, that, this spring, allowed now Chief Justice Melton to act with speed and clarity in response to the COVID-19 coronavirus pandemic.

“When the pandemic hit, there was a great deal of panic initially, and it was immeasurably comforting to know that there had been some intentional thought and planning that had taken place out of the panic mode,” Melton said. “It got us going until we could get our COVID sea legs underneath us.”

And that time and planning has allowed the Court to preserve and protect public transparency.  In every emergency order and extension issued since March, Melton and the Court have worked hard to keep Georgia’s courts open and accessible virtually during the COVID-19 emergency, not just for judges, lawyers and litigants, but also for journalists and the public. In contrast to those of other states, the Georgia Supreme Court’s orders permitting judicial business to proceed online have been carefully written to ensure that the public is afforded notice and an opportunity to attend.

That’s in keeping with Georgia judicial tradition.

More than 40 years ago, the Georgia Supreme Court made the state one of the first in the country to permit cameras in its courtrooms.  Then Chief Justice H.E. Nichols reasoned, “Our courts don’t belong to our judges or our lawyers or our litigants. They belong to the people.”

And the Court has reinforced that view in the years since with strong reversals of lower court decisions that sought to close court proceedings and records. “Like a candle,” the Court has said, “court records hidden under a bushel make scant contribution to their purpose.” “This court,” it has explained, “has sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that open courtrooms are a sine qua nonof an effective and respected judicial system which, in turn, is one of the principal cornerstones of a free society.”

Melton channeled this long-standing policy and sentiment this spring by ensuring that as Georgia courts moved to virtual proceedings, the public moved with them. He’s grateful Georgia was prepared, especially because he can recall thinking that the pandemic plan he worked on a decade ago was unlikely to be needed. Melton modestly admits the experience has taught him a valuable lesson.

“I still wonder if I had been in the [then] chief’s spot, would I have taken the initiative to create this commission to plan ahead? And I don’t know that I would have,” Melton said. “I do think it is good for public officials to think about the things that you hope don’t happen.”

The Georgia First Amendment Foundation and its annual Weltner Freedom of Information event are dedicated to applauding those whose work has demonstrated the importance and power of First Amendment principles foundational to our democracy, especially in this unparalleled year.

The Georgia Supreme Court certainly fits that description and will be honored at this year’s Oct. 15 virtual Weltner event as a First Amendment Hero. Unlike a number of other courts across the country, which have found protecting public access now too difficult, the Court has continued to honor in deed the constitutional command recognized by the event’s namesake, the late Chief Justice Charles Weltner, “Because public men and women are amenable ‘at all times’ to the people, they must conduct the public’s business out in the open.”

Peter Canfield is a founding board member and Richard T. Griffiths is president emeritus of the Georgia First Amendment Foundation.

Register now for GFAF’s annual Weltner Freedom of Information celebration

Attendees to our virtual event will participate in our tribute to First Amendment heroes, preview the foundation’s legislative agenda and gain exclusive access to a bonus training event on law enforcement and the First Amendment.

Join the Georgia First Amendment Foundation for our virtual 2020 Charles L. Weltner Freedom of Information event from 1-2 p.m. on Oct. 15.

REGISTER NOW

Our 19th annual Weltner event will commemorate how First Amendment rights have helped shape this unprecedented year. We also will look ahead to our legislative agenda and initiatives to protect and expand government transparency, accountability journalism and free speech in Georgia in 2021 and beyond.

Commemorating this year’s First Amendment heroes

In a break from tradition, we are not naming a 2020 Charles L. Weltner Freedom of Information honoree because of the unparalleled circumstances of the pandemic. Instead, we are applauding those whose work has demonstrated the importance and power of First Amendment principles that are foundational to our democracy, particularly in this challenging year. During our virtual event, we will recognize as 2020 First Amendment heroes:

  • The Supreme Court of Georgia for vision, preparation and leadership that have allowed courts in our state to remain operational and open to the public during the COVID-19 coronavirus pandemic.
  • The late state Rep. Jay Powell for ushering an expansion of Georgia’s Sunshine Laws through the General Assembly in 2012. The resulting laws improved citizens’ access to their government and established a legal framework for the virtual public meetings that have become so essential this year.
  • Nineteen-year-old community organizer and activist Zoe Bambara, who leveraged our right “peaceably to assemble” by helping organize protests in late May calling for an end to police brutality and discrimination. The protests raised awareness and sparked change; two months later, Georgia’s first hate crimes law took effect.

We also will preview the foundation’s legislative agenda for the 2021 General Assembly session; celebrate the life and legacy of the late U.S. Rep. John Lewis, a former Weltner Award honoree; and pay tribute to long-serving foundation member Tom Budlong, who died this year.

In addition, we’ll auction a one-of-a-kind cartoon from Pulitzer Prize-winning Atlanta Journal-Constitution editorial cartoonist Mike Luckovich — framed and ready to hang on your wall.

Bonus training event: Law Enforcement and the First Amendment

Recordings of police activities have become catalysts for change. How does the First Amendment protect citizens’ right to record police on the job? What rights do the public and the media have to access video from officer body cams and other official sources? What are the rules of non-engagement when journalists and citizens record police in action? How do free speech rights come into play in encounters between the public and police? On the panel:

  • Vic Reynolds, Director, Georgia Bureau of Investigation
  • Zoe Bambara, Community Organizer & Activist
  • Sarah Brewerton-Palmer, First Amendment Attorney, Caplan Cobb LLP
  • Clare Norins, Director, First Amendment Clinic, UGA School of Law
  • Gerry Weber, First Amendment Attorney, Gerry Weber LLC and Southern Center for Human Rights

Register now for this free hour-long training event at 1 p.m. on Oct. 9.

Your support matters more than ever

Our annual Weltner event is the greatest source of regular financial support for the foundation. 2020 has highlighted the crucial role our organization plays in protecting and expanding the public’s right to know in Georgia. We’ve educated elected officials on keeping meetings accessible to the public during the pandemic. We’ve pushed for greater transparency in public health data. We have helped journalists understand their rights when covering protests. And we have called for police departments across the state to adopt Citizens’ Right to Record policies.

This is all possible because of backing from our members and donors. Here are three ways you can support the foundation today:

  1. GFAF members have free access to both our Weltner celebration on Oct. 15 and our Law Enforcement and the First Amendment training event on Oct. 9. Become a member.
  2. Buy a $50 ticket to our 2020 Weltner event and also receive free access to the Oct. 9 training session.
  3. Donate to support our work to protect and expand Georgians’ right to know.

We look forward to seeing you online for our 2020 Weltner events!