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The issue before the Georgia Supreme Court on Tuesday was free speech, but the justices did little speaking. Except for a few brief questions, the members of the court sat silently as lawyers debated whether a hog farmer from South Georgia should be punished for typing on an Internet message board that a waste management executive there was a “crook” and a “thief” who had been fired by a previous employer. Lawyers for the farmer, Bruce Mathis, said that the First Amendment protected his late-night insults toward the executive, who they said was a key player in the development of a controversial garbage dump in Crisp County, Ga. An attorney for the executive, Thomas C. “Chris” Cannon, said Mathis had abused his free speech rights by committing “character assassination” and urged the justices to uphold lower court rulings finding the farmer committed libel per se. Notwithstanding the justices’ near-mute appearance, the case has drawn a great deal of interest and comment from media lawyers around the state. This week, the Georgia First Amendment Foundation and New World Communications of Atlanta Inc., which owns the WAGA FOX5 television station, filed a friend-of-the-court brief supporting the farmer. In the brief, by Joseph R. Bankoff and Jamie Nordhaus Shipp of Atlanta-based King & Spalding, the groups argue that the First Amendment protected Mathis’ “rhetorical hyperbole” and that the executive should have to prove “actual malice” to collect punitive damages. Another amicus brief submitted by Cable News Network, Gannett Co. Inc. and the Georgia Association of Broadcasters Inc. supported Mathis. In that brief, James C. Rawls and Eric P. Schroeder of Atlanta-based Powell, Goldstein, Frazer & Murphy argue for the elimination of punitive damages altogether in defamation actions concerning speech on matters of public concern. “The reasons are compelling: punitive damages serve no legitimate state interest yet punish speech at the heart of the First Amendment and discourage public debate on public issues,” Rawls and Schroeder wrote. Later this week, the local chapter of the American Civil Liberties Union was expected to file another brief supporting Mathis, according to the ACLU’s Gerald R. Weber Jr., who attended the oral argument. ORIGINS IN RECYCLING PLANT DISPUTE The case grew out of a dispute over a $70 million recycling plant of the Crisp County Solid Waste Management Authority. Mathis was a member of a vocal group of citizens that opposed the dump and the company that hauled trash to it, Waste Industries Inc., a subsidiary of Raleigh, N.C.-based TransWaste Services Inc. Around 11 p.m. on Nov. 4, 1999, Mathis went to the Yahoo message board about Waste Industries Inc., a site visited by investors, employees and stock analysts. In shorthand typical on the Web, Mathis typed, “stop the trash flow cannon we would love u for it-our county not a dumping ground and sorry u and lt governor are mad about it-but that is not going to float in crisp county-so get out now you thief.” At 11:27 p.m., Mathis added a second message, titled “cannon a crook????,” adding “explain to us why u got fired from the calton company please????” At 11:52 p.m., Mathis sent a third message, “cannon a crook,” in which he wrote, “if u deal with cannon u a crook too!!!!!!!” Cannon’s lawyer, Robert C. Norman Jr. of Macon, Ga.’s Jones, Cork & Miller said Lt. Gov. Mark F. Taylor has nothing to do with the matter. Cannon sued Mathis in Crisp County Superior Court, claiming Mathis’ statements were untrue. Further, they constituted libel per se, he said, because they suggested Cannon committed a crime and were intended to hurt Cannon’s business interests. Cannon, who by affidavit denied being a thief or having been fired by the Carlton Co., a former employer, asked for unspecified compensatory damages and $1 million in punitive damages. LIBEL PER SE DECISION In February 2001, Crisp County Superior Court Judge T. Christopher Hughes agreed that Mathis committed libel per se, noting, “The record is clear that none of the rumors and innuendo upon which Defendant based his comments provide any support or justification for them.” Cannon v. Mathis, No. 99V-503 (Crisp Super. Feb. 13, 2001). Damages would be decided at trial. Last November, a Georgia Court of Appeals panel of Chief Judge G. Alan Blackburn, Presiding Judge Marion T. Pope Jr. and Judge Charles B. Mikell Jr. affirmed Hughes’ ruling. Chief Judge Blackburn wrote for the panel that Mathis committed libel per se; that, despite evidence Cannon had attended closed meetings of the waste management authority, he was a private figure “involuntarily drawn into the controversy” of the recycling plant; and that Cannon’s failure to demand a retraction did not protect Mathis from punitive damages. Mathis v. Cannon, 252 Ga. App. 282 (2001). PROVING ACTUAL MALICE? In granting certiorari this spring, the state high court justices said they were particularly interested whether a private plaintiff must prove actual malice to recover punitive damages, referring to a 1974 U.S. Supreme Court decision on the subject, Gertz. v. Welch, 418 U.S. 323. In briefs, the lawyers debated the significance of Gertz. Mathis’ lawyer James W. Hurt of Cordele, Ga.’s Hurt and Associates, argued that since matters of public concern were involved in this case, it’s Cannon’s burden to prove Mathis knew his insults were false or that he acted with reckless disregard. Cannon’s lawyer, Norman, argued that Gertz held that libel defendants who defame a private figure “may not claim the benefit of the ‘actual malice’ standard for liability on the basis that the libel involved matters of public interest or concern.” On Tuesday, Justice George H. Carley started one of the only substantive colloquies of the argument. He pressed another of Mathis’ lawyers, Thomas Harry Hurt, on whether their argument would mean that the chief executive officer of any company in litigation — and therefore a matter of public concern — would be a public figure and therefore subject to having to prove actual malice to collect punitive damages. Hurt launched into a history of the First Amendment, reminding Carley that the Framers added it to the U.S. Constitution to make sure citizens could criticize the government. “So you’re saying everyone has to show actual malice,” Justice Carley pressed. “Yes sir,” Hurt said, if the subject matter was newsworthy and a matter of public concern. But Justice Carol W. Hunstein interrupted, “That’s not the rule here in Georgia,” adding that Hurt sounded like he wanted to expand the Gertz rule beyond media defendants. Hurt responded that the Georgia high court had to follow the U.S. Supreme Court’s Gertz rule, “just as we’re bound by Brown v. Board of Education.”

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