While a superior court judge earlier dismissed attorney Reid Zeh’s defamation allegations against The News, similar allegations against the American Civil Liberties Union passed muster, and as a result the ACLU appealed the decision to the state Court of Appeals, which heard arguments in the matter Thursday.

Judge William Woodrum Jr. ruled May 15 that Zeh’s suit against The News ran afoul of the law against what are termed strategic lawsuits against public participation, or SLAPPs. Such suits are known among 1st Amendment advocates as tools to intimidate and silence critics. The News argued in its motion to dismiss that the news story that led to the suit simply repeated allegations made by and attributed to the ACLU regarding Zeh’s actions as a misdemeanor public defender in state court.

The ACLU alleged Zeh had “a policy of not visiting public defense clients in the detention center, representing clients at their bail-setting hearing or requesting a preliminary hearing or bail-modification on their behalf.” The organization further accused him of essentially shaking down a client and the client’s mother for services he was already being paid for by the county to provide.

Zeh disputes that characterization. He said in an affidavit that in April 2015, the client, Robert Cox Jr., attempted to plead guilty to a misdemeanor charge, but the prosecutor had the case bound over to superior court as a felony because it would’ve been Cox’s sixth conviction for shoplifting.

Zeh said he had discussions with Cox and mother Barbara Hamilton regarding private representation in superior court, and they agreed to pay the $2,500 fee. He said at no time did Cox ask about receiving a public defender for superior court.

Ultimately, the Glynn County Board of Commissioners decided to settle the lawsuit the ACLU brought against Glynn County and several public officials — including Zeh — over the county’s cash bond system. It was this suit, and the ACLU comments about it, that led to The News’ story and Zeh’s subsequent suit.

In the Court of Appeals hearing, ACLU attorney Brian Hauss argued Woodrum erred in denying the organization’s motion to dismiss.

“First, the ACLU’s comments are constitutionally protected opinions based on facts disclosed in the Cox and Hamilton declarations, (which are) hyperlinked to the ACLU’s blog post,” Hauss said. “Second, the ACLU’s commentary is conditionally privileged under Georgia law, as statements on matters of public concern, and Mr. Zeh cannot demonstrate actual malice. And finally, the ACLU’s comments enjoy special protection under the 1st Amendment because they concern allegations of official misconduct.”

Hauss said any one of these reasons is justification enough to grant the ACLU’s motion to dismiss on anti-SLAPP grounds.

“Numerous courts have held that when a publisher expresses an opinion based on disclosed facts, and that opinion has a legal conclusion, such as, ‘This amounts to a violation of the statute,’ or, ‘This constitutes a breach of contract,’ that opinion is protected so long as the underlying facts are privileged or non-defamatory,” Hauss said.

Court of Appeals Judge Carla Wong McMillian asked Hauss about the argument that the underlying facts in the matter were in dispute, and the ACLU should have done a better job in researching the matter before using loaded language in accusations about Zeh its blog post.

Hauss said if you look at the complaint, Zeh’s allegations about defamatory statements don’t include any from the Cox and Hamilton declarations, and the only statements he identified are those “that he violated a legal duty to Cox and Hamilton.” Hauss said the ACLU’s position in the underlying cash bond suit is that regardless of Cox’s case turning into a felony matter, Zeh entered into a private representation agreement for Cox while Cox was still only charged with a misdemeanor.

“I think the underlying facts of the Cox and Hamilton declarations generally show that they were confused about the nature of the representation, but it was Mr. Zeh’s responsibility as the misdemeanor public defender, seeing an indigent defendant charged with a misdemeanor, to explain to Mr. Cox the circumstances,” Hauss said, arguing that Zeh didn’t do so and as such provided another example that he violated his duties as a public defender.

Zeh’s attorney, Brian Tanner, said the ACLU’s post didn’t simply rely on the declarations.

“This is what’s on the ACLU’s blog,” Tanner said, providing the court with the excerpt. “‘Rather than trying to get his clients out of jail, this public defender extorts money from them.’ And to your point, Judge (Clyde) Reese, they have one example, and they magnified that to make Reid Zeh look terrible. To make it look like this was his pattern and practice.

“That instead of getting people out of jail and doing what he should do as the public defender in Glynn County, he routinely extorted money from them. So, when they say in the blog post they link to, here at the bottom, ‘Rather than do his job, Zeh routinely ignores his clients, or worse, extorts them to enrich himself,’ again, this isn’t limited to the one example they had. They were making him look bad based on nothing.”

Tanner also quoted from an associated ACLU news release that contained a statement from ACLU attorney Andrea Woods who, Tanner argued, made an assertion as to Zeh’s behavior that went beyond the Cox matter and which they had no evidence on which to rely.

Zeh’s contention is that he didn’t enter into the private representation agreement with Cox until after the prosecutor announced the case would turn from a misdemeanor into a felony. That leaves room for both sides to be correct here — Zeh could have entered into the agreement before the felony charge became official, but following notice from the District Attorney’s Office that the matter was moving from state court to superior court.

“His office confirmed that it was going to be bound up, and that day, we have in the record an email from the prosecutor saying, hey, let’s bind this case up to superior court,” Tanner said. “That was on April 1. April 6, which was the following Monday, it’s transferred up to superior court just like everybody said.”

McMillian said an opinion on the case will be forthcoming in a few months.

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