By Kathleen Baydala Joyner From Daily Report

A DeKalb County State Court judge who greenlighted a defamation case against an Atlanta television news station has worried some national media groups, who say his interpretation of the law could chill free speech rights.

On the opposing side, the lawyer who claims Fox 5 Atlanta defamed his client has argued that those groups want a protection so broad that it would effectively nullify defamation law in Georgia.

Judge Alvin Wong in October denied Fox 5’s motion to dismiss a 2014 suit brought against it by a man named Shane Ladner. The station had reported on television and online that Ladner faked having a Purple Heart to get a free military award license plate.

In his order, Wong rejected Fox 5’s argument that the case should be dismissed on the grounds that the station’s reporting was covered by the state’s law protecting speech related to government proceedings. O.C.G.A. § 9-11-11.1 is called an anti-SLAPP statute, which prohibits “strategic lawsuits against public participation.”

The reports highlighted the need for more government scrutiny of Purple Heart claims and sparked a law enforcement investigation into the man, Fox 5’s attorney Cynthia Counts argued in an August letter to Wong. A Cherokee County grand jury indicted Ladner last month on six counts of theft by deception and making false statements related to his claim of receiving a Purple Heart and using it to obtain a free license plate. Ladner pleaded not guilty to the charges earlier this month, according to the Cherokee Tribune.

Wong disagreed, holding that the anti-SLAPP statute didn’t apply to the case. The law enforcement investigation and arrest of the plaintiff for filing a false license plate application “were merely incidental to the broadcasts,” he wrote. Fox 5 “would have aired these reports because it was a sensational story. The defendant did not air these stories to prompt official action.”

Counts has since appealed Wong’s order. The state Court of Appeals declined to accept the appeal, and Fox 5 now has a petition for certiorari pending at the state Supreme Court. Counts and Fox 5 declined to comment on the case.

Peter Canfield, a media lawyer with Jones Day, filed an amicus brief with the high court earlier this month on behalf of the Reporters Committee for Freedom of the Press, The Associated Press and Gannett, as well as the Georgia Press Association. (The Daily Report is a member of the Georgia Press Association.)

In the brief, Canfield wrote that Wong applied “an unduly narrow” interpretation of the anti-SLAPP statute and urged the Supreme Court to find that “media reports discussing official proceedings are protected under the statute as they are statements made in connection with the proceedings.”

“It’s an unusual interpretation that the statute only protects actual requests for official action,” he said in an interview.

Ladner’s lawyer, Randolph Mayer, said in an interview that the anti-SLAPP statute was never intended to provide extra protection for the media.

“There is already the fair reporting privilege,” he said. “And there is no appellate decision in this state that has ever provided anti-SLAPP protection to the media. The statute’s real purpose is to protect protesters, particularly in a zoning context, who otherwise would become overburdened with litigation that would be expensive and prohibit them from exercising their voice.”

But Canfield said there is precedent in Georgia and around the country that reporters and news agencies are covered by anti-SLAPP statutes. He pointed out that 28 states have some form of anti-SLAPP statute.

“These statutes all rely on the central premise espoused by the U.S. Supreme Court of the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open,'” Canfield wrote, citing the 1964 case New York Times v. Sullivan, 376 U.S. 254.

“Members of the news media have a great interest in a clarification of the law that will recognize their importance to the process of examining government action and informing the citizenry of the results of that scrutiny,” he wrote.

Mayer said the position of the media outlets in the amicus brief would protect any media statements about anyone no matter their veracity.

Counts countered, stating that anti-SLAPP protection would not absolve reporters who actually publish false and defamatory statements with actual malice.

“Contrary to Ladner’s contention, a broad construction of Georgia’s anti-SLAPP statute does not threaten to ‘end media libel law in Georgia,'” Counts wrote in her reply in support of Fox 5’s petition for certiorari. “The statute simply provides a speedy method for unmasking and dismissing claims (and related claims) that eventually would be dismissed as lacking in legal merit.”

The lawsuit against Fox 5 stems from an incident in Texas in 2012 involving Ladner, an Army veteran, and his wife. The couple were injured in a parade honoring Purple Heart veterans and their families when a Union Pacific train crashed into their float. As a result, Ladner’s wife lost a leg, and the Ladners filed a lawsuit against the railroad company, which is pending trial in Texas. News outlets in Georgia picked up the story because Ladner is from Canton and reported on the parade accident and the suit.

“During the midst of this ongoing publicity,” Counts wrote in her answer, Fox 5 investigative reporter Randy Travis received a tip that Ladner’s claims of being a Purple Heart recipient were in question.

After checking with the National Personnel Records Center, the U.S. Army Personnel Office and the Georgia Department of Veterans Services, which all told Travis they had no record that Ladner was wounded in combat or had been awarded a Purple Heart, Travis “in good faith questioned Ladner’s claims,” Counts said. The station aired several reports in 2013.

“Fox 5 was seeking to raise the public’s awareness and highlight the need for greater government scrutiny of Ladner and his potential procurement of a Purple Heart license plate,” Counts wrote in an answer to the complaint.

But Mayer has maintained that Ladner does have a Purple Heart and that Travis purposefully ignored evidence supporting that assertion, such as specific discharge papers showing that he has a Purple Heart that Ladner personally gave to Travis.

“The damages to [Ladner] as a result of the defamatory statements have been severe,” Mayer wrote in the complaint filed in April 2014. Mayer stated that, as a result of Travis’ reporting, Ladner was arrested in front of his disabled wife, lost his ability to work as a police officer and had his reputation destroyed.

“He has suffered fear, humiliation, depression and extreme mental anguish,” Mayer said.

In reply briefs, Counts said that Travis and Fox 5 could not authenticate the documents provided by Ladner. She also noted that Ladner admitted to lying about parts of his service record, such as claiming he served in Panama during Operation Just Cause (the 1989 U.S. invasion that resulted in the overthrow of Panamanian dictator Manuel Noriega).

Counts also argued that Fox 5 did not act with actual malice—”Fox 5 reporter Randy Travis conducted a three-month investigation, relied on multiple military sources and believed (and still believes) his statements to be true.”

IMAGE: Judge Alvin Wong

For more on this story go to: http://www.dailyreportonline.com/id=1202717922836/Judges-Order-in-Defamation-Case-Worrisome-to-Media-Groups#ixzz3SCxECj00