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ATLANTA � Justices at the Supreme Court of Georgia on Tuesday sounded sympathetic to a woman sued for defamation after she sent e-mails to officials in the news media and the state government complaining about her disabled son’s alleged treatment from caregivers. At issue was Georgia’s 1996 “anti-SLAPP” law, which attempts to stop powerful entities from silencing critics through “Strategic Lawsuits Against Public Participation.” The law requires plaintiffs bringing claims for torts such as defamation to submit a written verification that the claim is grounded in fact and law and that the basis for the claim is not a privileged communication. That law is one of Shirley Berryhill’s defenses to a suit brought by Georgia Community Support and Solutions Inc., a nonprofit organization that in July 2000 contracted a home-based caregiver for Berryhill’s mentally disabled son, Robert. GCSS says that Berryhill disseminated false statements about the organization and its executive director Whitney Fuchs in e-mails and on a Web site. According to court records, in July 2002 Berryhill posted a message on a Web site for families of disabled adults, saying that after not being told where her son was housed, she eventually found him in a basement garage with no clothes and no bed, having been beaten up, fed chicken bones and left in the yard all day as punishment. In February 2003, Berryhill sent an e-mail containing similar statements to about 40 recipients, including The Atlanta Journal-Constitution and the Georgia Department of Human Resources, according to court records. GCSS brought suit against Berryhill in DeKalb County Superior Court. Superior Court Judge Linda Hunter dismissed the suit, saying that GCSS had not complied with the verification requirements of the anti-SLAPP statute. Last August, a three-judge panel of the Court of Appeals of Georgia reversed. Judge Herbert Phipps said that the case should not have been dismissed as a result of anti-SLAPP requirements because that statute did not apply. According to the panel, the statute applies only to statements “made in relation to some official proceeding.” “There is no evidence that any such proceeding was involved here, either before or after Berryhill’s statements,” wrote Phipps, joined by Presiding Judge Gary Blaylock Andrews and Judge Charles Mikell Jr. “Nor is there any evidence that Berryhill sought to initiate an official proceeding by making the statements.” Berryhill asked the Supreme Court of Georgia to hear the case, and the court granted her request, leading to Tuesday’s argument. WAS THE GOVERNMENT ASKED FOR HELP? GCSS’ attorney, Richard Witterman of Roswell, said he was concerned that the court was too focused on Phipps’ statement that the statute required the words at issue be made in relation to an “official proceeding.” Instead, argued Witterman, the anti-SLAPP defense did not apply to the case against Berryhill because her messages did not ask the government for help. Noting that Berryhill had sent her e-mail to the state’s health and human services department, Justice Harold Melton asked, “How is that not a petition to the government?” Witterman responded by saying that it was not enough to copy the government on an e-mail, but Melton did not let up. Chief Justice Leah Ward Sears and Justice Hugh Thompson chimed in, each suggesting that the likely purpose of including the Department of Human Resources on the e-mail was to ask the department to take some regulatory action. “I get these all the time,” said Sears, referring to e-mails that she receives from citizens: “Even if they’re not very articulate � they’re asking for help.” Witterman argued that Berryhill was sufficiently sophisticated to know how to get assistance from the government more effectively. “Not everybody’s � able to express themselves like that,” Sears responded. Justice George Carley tried to help Witterman get back on track. “What you don’t want us to forget is we’ve got to establish the scope of this anti-SLAPP statute and not have it cover everything,” said Carley. Representing Berryhill, Torin Togut of Lawrenceville tried to assure the justices that a decision in his client’s favor would not signal the end of libel suits in Georgia. The only issue before the high court, he said, was whether anti-SLAPP’s verification requirements applied, and lower courts still would be called upon to decide whether plaintiffs met those requirements in bringing certain suits. The justices had fewer questions for Togut, although Melton tried to get him to focus on the statute and not on the constitutional free speech concepts that might lie behind the law. “Calling it free speech doesn’t really help our analysis,” Melton told Togut. Togut acknowledged the case was about the statute but also argued that the case is important because it involves speech and, depending on how the court rules, could “severely dampen and chill” speech of Georgians. The case is Berryhill v. Georgia Community Support & Solutions Inc., S06C0038. Alyson M. Palmer is a reporter with the Fulton County Daily Report, a Recorder affiliate based in Atlanta.

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