Foundation urges high court to secure free speech protections in Georgia

Leading up to the Georgia Supreme Court’s June hearing in a case with significant First Amendment implications, the Georgia First Amendment Foundation has once again partnered with UGA School of Law’s First Amendment Clinic to urge the high court to correct a lower court decision that weakens free-speech protections in Georgia.

In the latest friend-of-the-court brief in ACLU v. Zeh, filed April 29, the foundation argues 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 expands upon a previous friend-of-the-court brief, filed July 23, 2020.

Strategic lawsuits against public participation, or SLAPPs, once emboldened litigants seeking to use groundless defamation and other claims to chill free speech in Georgia. In 2016, the foundation supported efforts by CNN and other media companies to curb SLAPPs in the state. We recognized the Motion Picture Association of America for working to educate and encourage state lawmakers to institute an anti-SLAPP statute. The resulting law was the most effective legislative protection of free speech rights in Georgia in 20 years.

In ACLU v. Zeh, the lower court ruling erodes the strength of that law, chilling the right to speak or report on allegations made in legal proceedings, or on legislative activities and other newsworthy public affairs. We believe allowing the lower court ruling to stand would inhibit newsgathering, reporting and public debate.

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

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!

Civil rights leader U.S. Rep. John Lewis, 2012 Weltner Award honoree, dies at 80

U.S. Rep. John Lewis, an advocate for citizens’ right to access and shape American democracy, died Friday after battling cancer. He was 80.

Lewis represented Georgia in Washington for more than 30 years and came to be known as the “conscience of the Congress.” He fought for voting rights and equality and promoted and practiced the First Amendment right to peaceful protest. The Georgia First Amendment Foundation honored Lewis with our Weltner Freedom of Information Award in 2012.

A statement released by the Lewis family early Saturday said, “It is with inconsolable grief and enduring sadness that we announce the passing of U.S. Rep. John Lewis. He was honored and respected as the conscience of the US Congress and an icon of American history, but we knew him as a loving father and brother.

“He was a stalwart champion in the on-going struggle to demand respect for the dignity and worth of every human being,” the statement said. “He dedicated his entire life to non-violent activism and was an outspoken advocate in the struggle for equal justice in America. He will be deeply missed.”

Lewis was selected as GFAF’s Weltner Award honoree because his life and career embodied a belief that government of, by and for the people must be open and accessible to the public.

First Amendment rights spark justice and seed change in Georgia

By Lisa N. Cupid

Georgia’s new hate crimes law is welcome and long overdue. But as the headlines marked this historic moment last week, I kept thinking about what finally forced change in Georgia. The shooting death of Ahmaud Arbery and the subsequent delay of justice were just too horrifying to ignore. That injustice was brought to light and the seeds of change were sown because we are empowered by First Amendment rights.

The shameful case of an unarmed Black man shot by white pursuers as he jogged through a Brunswick neighborhood was a stark reminder that we are far from the equality that a robust democracy can provide. Despite civil rights gains of the past 60 years, we still have not protected, respected and advocated for all of our citizens with the same diligence. Arbery’s killing laid that bare.

But the Arbery case — and the cases of George Floyd’s death in Minneapolis and Breonna Taylor’s death in Louisville, Kentucky — also remind us that democracy, despite its flaws, comes with checks and balances. Democracy is designed to be truly of the people. When Americans want change, they have a First Amendment right to peaceably assemble and to petition the government for a redress of grievances. The last few weeks have undeniably demonstrated the power of our right to protest.

Lisa Cupid

The First Amendment also protects the right to record in public spaces, whether what’s being captured on video is police activity, as happened with Floyd’s killing, or the actions of public officials in public buildings, a right reinforced by a recent ruling in the U.S. District Court in Macon.

And here’s another way the First Amendment and companion laws in Georgia ensure that our elected government belongs to every citizen — and enable the justice that stems from that. The public and the press have a legally protected right to know what elected officials are doing with the power granted to them by the people.

The checks and balances that first brought scrutiny in the Arbery case involved the public’s access to government records. New York Times journalist Richard Fausset in April filed an open records request that revealed a memo from the then-prosecutor on the case. In the memo, the prosecutor detailed why he believed there was not sufficient probable cause for arrest warrants.

The story got national attention, and, a few days later, the release of a video of Arbery being shot sparked international outrage. The Georgia Bureau of Investigation ultimately arrested three men, all of whom were indicted on murder charges on June 24.

As an elected official on the Cobb County Commission, I believe that government transparency created by open records and open meetings adds accountability that is beneficial both to the voters who put me into office and to me. The public expects that they will have access to information about what I and other commissioners do, and I take every action with the knowledge that the public has that oversight.

As an elected official, I also know that enabling public access can be cumbersome and sometimes confrontational. But in a democracy, it is essential. That’s why I joined the Georgia First Amendment Foundation’s board of directors in 2016. That’s why in a world filled with so much need and so many opportunities to make a difference, government transparency is a cause worth my time and energy.

As the African-American mother of two young sons, I understand and fear the consequences of having officials empowered by the people who take power from the people instead. That’s why the on-the-record accountability of open government matters.

In the Arbery shooting death, public records opened the door to justice. My hope is that we will get to a place in our democracy where government officials’ commitment to transparency is about more than just answering records requests in three days or guaranteeing that citizens can attend meetings. It is operating with the public’s best interests in mind, with a commitment to justice and with the knowledge that the people are paying attention.

Lisa N. Cupid is a Cobb County commissioner and a board member of the Georgia First Amendment Foundation.