Supreme Court of Georgia
Oskouei v. Matthews
S24G03350 citations·
Summary of the case Oskouei v. Matthews
Dr. Armin Oskouei filed a defamation lawsuit against attorney Zachary Matthews, who allegedly made defamatory statements suggesting Oskouei performed illegal surgeries. Matthews moved to strike the lawsuit under Georgia’s anti-SLAPP statute, which the trial court denied. The Court of Appeals reversed, finding Matthews's statements conditionally privileged and that Oskouei failed to show 'actual malice.' The Supreme Court of Georgia vacated this decision, clarifying that 'actual malice' under New York Times does not apply to private-figure plaintiffs in cases not involving public concern, and remanded the case.
Key Issues of the case Oskouei v. Matthews
- Whether the 'actual malice' standard applies to conditional privilege defenses in defamation cases involving private figures.
- The proper standard for overcoming a conditional privilege under Georgia law.
Key Facts of the case Oskouei v. Matthews
- Oskouei owned medical facilities and was accused by Matthews of performing illegal surgeries.
- Matthews's statements were made during litigation and were deemed conditionally privileged by the Court of Appeals.
Decision of the case Oskouei v. Matthews
The Supreme Court of Georgia vacated the Court of Appeals's decision and remanded the case.
Impact of the case Oskouei v. Matthews
Clarified that the 'actual malice' standard from New York Times does not apply to private-figure plaintiffs in defamation cases not involving matters of public concern.
Opinions
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: February 18, 2025
S24G0335. OSKOUEI v. MATTHEWS.
WARREN, Justice.
Dr. Armin Oskouei, the owner of two medical facilities, filed a
lawsuit alleging that Zachary Matthews, a defense attorney who
represented clients in cases that tangentially involved the medical
facilities, made defamatory statements suggesting that Oskouei
performed “illegal” surgeries, among other things. Matthews moved
to strike the defamation lawsuit pursuant to Georgia’s anti-
Strategic Lawsuits Against Public Participation (“anti-SLAPP”)
statute, OCGA § 9-11-11.1, which allows a trial court to strike
certain claims based on a person’s right of petition or free speech
when there is no “probability that the nonmoving party will prevail
on the claim.” OCGA § 9-11-11.1 (b) (1). The trial court denied the
motion to strike, but the Court of Appeals reversed that ruling in
Matthews v. Oskouei, 369 Ga. App. 568 (894 SE2d 141) (2023). The
Court of Appeals held that Oskouei could not establish a probability
of prevailing on his defamation claims because he had not overcome
Matthews’s defense of conditional privilege. Id. at 573-575. In this
respect, the court determined that Oskouei had not established that
Matthews acted with “actual malice,” such that “Matthews knew
that his statements were false or that he made them with a reckless
disregard for the truth.” Id. at 575.
We granted Oskouei’s petition for certiorari to address an issue
of first impression in this Court: whether a plaintiff is required to
show that the defendant acted with “actual malice” (i.e., knowledge
of falsity or reckless disregard for the truth) to defeat his defense of
conditional privilege. We conclude that the “actual malice” standard
does not apply in such cases. As we explain below, under OCGA §
51-5-9, to overcome a conditional privilege, a plaintiff must show
that the defendant used the privilege “merely as a cloak for venting
private malice and not bona fide in promotion of the object for which
the privilege is granted.” And in light of the legal and historical
2
context of the text of OCGA § 51-5-9—which was originally codified
in 1860—we conclude that a plaintiff meets his burden under that
statute by establishing that the defendant’s claim of privilege is a
sham and that he made the allegedly defamatory statement with ill
will toward the plaintiff or with an intent to injure him.
That is not the “actual malice” standard that the Court of
Appeals applied in this case. It instead applied the “actual malice”
standard the United States Supreme Court first announced in New
York Times Co. v. Sullivan, 376 U.S. 254 (84 SCt 710, 11 LE2d 686)
(1964)—a constitutional standard that applies only in certain
defamation cases. In particular, the “actual malice” standard does
not pertain to defamation cases brought by private-figure plaintiffs
relating to statements that do not involve matters of public concern.
Because the Court of Appeals incorrectly imported the “actual
malice” standard into OCGA § 51-5-9 in this case, we vacate the
Court of Appeals’s opinion and remand the case to that court for
further proceedings consistent with this opinion. We also overrule
several other Court of Appeals cases holding that a plaintiff must
3
establish “actual malice” under New York Times to overcome a
conditional-privilege defense under OCGA § 51-5-9.
1. Background and Procedural History
(a) Oskouei’s Defamation Claims
As summarized by the Court of Appeals:
The record reflects that Oskouei is the sole owner of
a medical practice, Ortho Sport & Spine Physicians, LLC
(“Ortho Sport”), and the practice’s affiliated ambulatory
surgery center, Orthopedic Surgery Center of Sandy
Springs (“the surgery center”). In January 2021, the
[Georgia Department of Community Health (“the
Department”)] issued a cease and desist order,
prohibiting the surgery center from performing
orthopedic surgeries because it found that Oskouei did
not have the requisite board certification in orthopedic
surgery to justify the center’s exemption from the
certificate of need program.
The surgery center filed a timely administrative
appeal of the cease and desist order, but it was affirmed
by both an administrative hearing officer and the agency
commissioner. In November 2022, after the surgery
center petitioned the superior court for judicial review of
the final agency order, the court entered a consent order,
granting the petition and vacating the cease and desist
order.
Matthews is a defense attorney who was
representing clients adverse to parties that had been
treated at Ortho Sport and the surgery center. As a result
4
of his investigation and discovery efforts regarding the
medical bills of adversarial parties in his clients’ cases,
Matthews became aware of the cease and desist order,
and developed evidence that the surgery center was still
performing orthopedic surgeries despite the order.
In March 2021, Matthews sent an e-mail to his
opposing counsel, David Byrd, to discuss settlement of a
pending suit brought by Byrd’s client. Matthews had
previously sent Byrd a copy of the cease and desist letter.
In the e-mail to Byrd, Matthews wrote:
“As I advised, Ortho Sport & Spine have [sic] been sent a
cease-and-desist order for illegally operating what
appears to be the very same facility at which your client
had treatment. Some or all of those bills . . . appear to
have been illegally issued. . . . In the case of Ortho Sport,
Dr. Oskouei made misrepresentations of his board
certification to even operate the [surgery center] in the
first place. Accordingly, it should never have been
approved, and the [Department] is presently taking steps
to rectify that. At a minimum[,] this situation raises
reasonable questions about whether the [surgery center’s]
facility fee liens would be collectible, as they appear to
arise out of fraud.”
(Emphasis in original.)
In her March 2022 affidavit, Stella Adhisurya,
Matthews’s opposing counsel in another such claim
against one of his clients, recounted certain statements
Matthews made during a May 2021 phone call regarding
a discovery dispute. Specifically, Adhisurya recalled that
Matthews told her Oskouei was performing illegal
surgeries; equated Oskouei to a “back alley” surgeon or
5
one who was “doing surgeries in a hotel”; referred to
Oskouei as “bad news”; and cautioned her against sending
clients to Oskouei for treatment.
Matthews, 369 Ga. App. at 568-569.
In January 2022, Oskouei filed a lawsuit against Matthews in
Fulton County State Court, alleging claims of slander and libel, as
well as slander per se and libel per se, such that damages were
presumed, see OCGA § 51-5-4 (b), with respect to the statements he
made to Byrd and Adhisurya. The complaint also sought
compensatory and punitive damages, attorney fees, and costs of
litigation. In March 2022, Matthews filed a motion to strike
Oskouei’s complaint under the anti-SLAPP statute, which required
Matthews to make a threshold showing that the challenged claim is
one “arising from” protected activity; if so, Oskouei would then be
required to establish that there was “a probability that [he] will
prevail on the claim.” OCGA § 9-11-11.1 (b) (1).1 Matthews
1 OCGA § 9-11-11.1 (b) (1) says:
A claim for relief against a person or entity arising from any act of
such person or entity which could reasonably be construed as an
act in furtherance of the person’s or entity’s right of petition or free
6
contended, among other things, that Oskouei could not establish a
probability that he would prevail on his defamation claims because
the allegedly defamatory statements were conditionally privileged.
In his responses to the motion to strike, Oskouei argued, among
other things, that the statements were not conditionally privileged
because Matthews lacked a good-faith belief in the truth of the
statements and because the statements were “malicious.”
In November 2022, the trial court issued an order denying
Matthews’s anti-SLAPP motion to strike. The court concluded
under the first part of the anti-SLAPP analysis that Matthews had
established that Oskouei’s defamation claims arose from protected
activity under OCGA § 9-11-11.1 (c) (2). 2 And under the second part
speech under the Constitution of the United States or the
Constitution of the State of Georgia in connection with an issue of
public interest or concern shall be subject to a motion to strike
unless the court determines that the nonmoving party has
established that there is a probability that the nonmoving party
will prevail on the claim.
2 OCGA § 9-11-11.1 (c) (2) says that “the term ‘act in furtherance of the
person’s or entity’s right of petition or free speech under the Constitution of
the United States or the Constitution of the State of Georgia in connection with
an issue of public interest or concern,’” as it is used in OCGA § 9-11-11.1 (b),
7
of the analysis, the court determined that Oskouei had established
a probability of prevailing on his defamation claims. As pertinent to
the issue of whether the allegedly defamatory statements were
conditionally privileged, the trial court noted that the cease and
desist order said that Oskouei could appeal the Department’s
findings and then determined that “a reasonable jury could infer
that the findings were not final and therefore [Matthews] did not
have a good faith basis to make the alleged statements.” The court
also concluded that the question of whether the statements were
privileged “is within the province of the jury.”
(b) The Court of Appeals’s Decision
Matthews appealed, and in October 2023, the Court of Appeals
reversed the denial of the anti-SLAPP motion to strike. See
Matthews, 369 Ga. App. at 576. The Court of Appeals noted that it
would not review the trial court’s finding as to the first part of the
analysis of an anti-SLAPP motion—that the allegedly defamatory
includes “[a]ny written or oral statement or writing or petition made in
connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law.”
8
statements arose from protected activity—because Oskouei had not
filed a cross-appeal challenging that finding. See id. at 571. The
court accordingly turned to the second part of the test: whether
Oskouei had established a probability of prevailing on his
defamation claims. See id. at 572.
In this respect, the Court of Appeals set forth the elements of
a defamation claim under Georgia law:
(1) a false and defamatory statement concerning the
plaintiff; (2) an unprivileged communication to a third
party; (3) fault by the defendant amounting at least to
negligence; and (4) special harm or the actionability of the
statement irrespective of special harm.
Matthews, 369 Ga. App. at 572 (citation, punctuation, and emphasis
omitted). The court pretermitted whether Oskouei had established
the first, third, and fourth elements and concluded that he had not
shown a probability of prevailing on his claims because Matthews’s
allegedly defamatory statements were conditionally privileged as a
matter of law. See id. at 568. Noting that although “the issue of
conditional privilege is typically a question for the jury,” the court
also stated that privilege can apply “as a matter of law in clear and
9
certain cases.” Id. at 573. It then determined that Matthews’s
statements to Byrd and Adhisurya fell within the ambit of OCGA
§ 51-5-7 (7), which deems conditionally privileged “[c]omments of
counsel, fairly made, on the circumstances of a case in which he or
she is involved and on the conduct of the parties in connection
therewith,” because the statements “were made in the course of
pending litigation, and concerned the relative settlement values of
the claims of opposing counsels’ clients.” Id.
The Court of Appeals outlined the elements Matthews was
required to establish to show that the allegedly defamatory
statements were conditionally privileged: that “‘(a) [he] acted in good
faith; (b) in connection with an interest to be upheld; (c) the
statement was properly limited in its scope and occasion; and (d)
publication was made to proper persons.’” Matthews, 369 Ga. App.
at 574 (citation omitted). After reciting that “‘[s]tatements are
deemed to have not been made in good faith, but rather with malice,
if the evidence shows in a clear and convincing manner that a
defendant in fact entertained serious doubts as to the truth of his
10
statements,’” the court determined that Matthews made the
statements in good faith because there was no evidence of any such
doubts; rather, Matthews relied on the cease and desist order in
making the statements. Id. (citation omitted). The court also
concluded, as a matter of law, that Matthews had established the
other three elements of conditional privilege, such that he had
“made a prima facie showing that the statements at issue were
conditionally privileged.” Id. at 574-575.
The Court of Appeals then said that “[t]o defeat Matthews’s
privilege defense, Oskouei bears the burden to show that Matthews
acted with actual malice,” Matthews, 369 Ga. App. at 575, citing its
own precedent and OCGA § 51-5-9, which says, “In every case of
privileged communications, if the privilege is used merely as a cloak
for venting private malice and not bona fide in promotion of the
object for which the privilege is granted, the party defamed shall
have a right of action.” The court stated that Oskouei could meet
this burden by establishing by clear and convincing evidence that
“Matthews knew that his statements were false or that he made
11
them with a reckless disregard for the truth.” Id. The court
determined that Oskouei had not pointed to any evidence that
Matthews knew at the time he made the statements that Oskouei’s
credentials were unblemished or that the surgery center was not
illegally performing surgeries after the cease and desist order
issued. See id. Concluding that Oskouei had thus failed to show
actual malice to defeat Matthews’s defense of conditional privilege,
the Court of Appeals held that the trial court erred by finding that
there was a probability that Oskouei would prevail on his
defamation claims, reversed the denial of Matthews’s anti-SLAPP
motion to strike, and remanded the case to the trial court for it to
consider Matthews’s request for attorney fees and litigation
expenses. See id. at 576.
Oskouei filed a petition for certiorari in this Court, arguing,
among other things, that the Court of Appeals erred by requiring
him to show that Matthews acted with “actual malice” as defined in
New York Times to defeat Matthews’s conditional-privilege defense
because OCGA § 51-5-9 requires only a showing of “private malice.”
12
We granted the petition to address that issue. 3
2. The Undisputed Legal Principles that Apply to this Case
The parties do not dispute the legal framework that applies to
the analysis of Matthews’s anti-SLAPP motion to strike, the well-
settled elements of a claim for defamation, or the elements required
for a defendant to establish that an allegedly defamatory statement
is conditionally privileged. We therefore briefly set forth these
undisputed legal principles before addressing the issue at the crux
of this case: what a plaintiff must establish to defeat a showing of
conditional privilege under OCGA § 51-5-9.
(a) The Analysis of an Anti-SLAPP Motion to Strike
3 We did not grant Oskouei’s petition for certiorari to address the Court
of Appeals’s conclusion that Matthews’s allegedly defamatory statements fell
within the type of communication set forth in OCGA § 51-5-7 (7), whether the
test set forth above for establishing a conditional privilege applies to OCGA
§ 51-5-7 (7), or whether the Court of Appeals erred by determining that
Matthews had satisfied that test, such that he made a prima facie showing
that his statements were conditionally privileged. We therefore do not address
those issues.
We note that the Atlanta Journal-Constitution, WSB-TV, and the
Georgia First Amendment Foundation jointly filed an amicus curiae brief in
this case, arguing that the Court of Appeals was correct in its assessment of
the “actual malice” required to overcome Matthews’s conditional-privilege
defense. We thank them for their amicus brief.
13
As discussed above, the analysis of an anti-SLAPP motion to
strike involves two steps. See OCGA § 9-11-11.1 (b) (1). See also
American Civil Liberties Union, Inc. v. Zeh, 312 Ga. 647, 650 (864
SE2d 422) (2021); Wilkes & McHugh, P.A. v. LTC Consulting, L.P.,
306 Ga. 252, 261 (830 SE2d 119) (2019). First, the court must
determine whether the party filing the anti-SLAPP motion (here,
Matthews) “has made a threshold showing that the challenged claim
is one arising from protected activity.” Zeh, 312 Ga. at 650 (citations
and punctuation omitted). If so, the court must “decide whether the
plaintiff has established that there is a probability that [he] will
prevail on the claim.” Id. (citations and punctuation omitted).4
4 To make such a showing, “the plaintiff must demonstrate that the
complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by
the plaintiff is credited.” Zeh, 312 Ga. at 653 (citations and punctuation
omitted).
For purposes of this inquiry, the trial court considers the pleadings
and evidentiary submissions of both the plaintiff and the
defendant; though the court does not weigh the credibility or
comparative probative strength of competing evidence, it should
grant the motion if, as a matter of law, the defendant’s evidence
supporting the motion defeats the plaintiff’s attempt to establish
evidentiary support for the claim. In making this assessment[,] it
is the court’s responsibility to accept as true the evidence favorable
14
With respect to the first step, the trial court concluded here
that Oskouei’s defamation claims arose from protected activity
under OCGA § 9-11-11.1 (c) (2), and as noted above, that conclusion
is not at issue in this appeal. See Wilkes, 306 Ga. at 262 (explaining
that a challenged claim arises from protected activity when it could
reasonably be construed as fitting within one of the categories set
forth in OCGA § 9-11-11.1 (c)). Thus, the dispositive issue on appeal
before this Court is whether Oskouei has met his burden of
establishing under the second step of the anti-SLAPP analysis that
there is a probability that he will prevail on his defamation claims.
(b) The Elements of a Defamation Claim
In Georgia, a claim for defamation has four elements:
(1) a false and defamatory statement concerning the
plaintiff; (2) an unprivileged communication to a third
party; (3) fault by the defendant amounting at least to
negligence; and (4) special harm or the actionability of the
statement irrespective of special harm.
Zeh, 312 Ga. at 650 (citation and punctuation omitted). As discussed
to the plaintiff. In this regard, the merits of the plaintiff’s claim
are evaluated using a summary-judgment-like procedure at an
early stage of the litigation.
Id. (citation and punctuation omitted).
15
above, the Court of Appeals determined that Oskouei could not
establish a probability of prevailing on his defamation claims
because he could not prove the second element: an unprivileged
communication to a third party. See Matthews, 369 Ga. App. at 570.
Georgia law recognizes two kinds of privileged
communications: absolute and conditional. 5 Absolutely privileged
communications, such as allegations contained in pleadings filed in
court, cannot form the basis for a defamation action. See OCGA
§ 51-5-8 (providing in pertinent part that “[a]ll charges, allegations,
and averments contained in regular pleadings filed in a court, which
are pertinent and material to the relief sought, whether legally
sufficient to obtain it or not, are privileged”). See also, e.g., Saye v.
Deloitte & Touche, LLP, 295 Ga. App. 128, 131 (670 SE2d 818) (2008)
(explaining that an absolutely privileged statement “‘entirely free[s]
5 Historically, conditional privileges have also been referred to as
“qualified privileges,” and those terms have been used interchangeably in
Georgia decisional law. See, e.g., JOHN TOWNSHEND, A TREATISE ON THE
WRONGS CALLED SLANDER AND LIBEL, AND ON THE REMEDY BY CIVIL ACTION
FOR THOSE WRONGS, TOGETHER WITH A CHAPTER ON MALICIOUS PROSECUTION
§ 240 n.1 (4th ed. 1890); Murray v. Community Health Systems Professional
Corporation, 345 Ga. App. 279, 286 (811 SE2d 531) (2018).
16
the [defendant] from any liability to the person injured by the words
or the publication’”) (citation omitted).
By contrast, when a defendant makes a prima facie showing
that an allegedly defamatory statement is conditionally privileged,
the burden shifts to the plaintiff to make an additional showing of
proof to overcome the privilege defense. See Saye, 295 Ga. App. at
131. In this respect, OCGA § 51-5-7 sets forth the types of
communications that are conditionally privileged.6 Once the
6 OCGA § 51-5-7 says:
The following communications are deemed privileged:
(1) Statements made in good faith in the performance of a
public duty;
(2) Statements made in good faith in the performance of a
legal or moral private duty;
(3) Statements made with a good faith intent on the part of
the speaker to protect his or her interest in a matter in which
it is concerned;
(4) Statements made in good faith as part of an act in
furtherance of the person’s or entity’s right of petition or free
speech under the Constitution of the United States or the
Constitution of the State of Georgia in connection with an
issue of public interest or concern, as defined in subsection
(c) of Code Section 9-11-11.1;
(5) Fair and honest reports of the proceedings of legislative
or judicial bodies;
(6) Fair and honest reports of court proceedings;
(7) Comments of counsel, fairly made, on the circumstances
of a case in which he or she is involved and on the conduct of
17
defendant establishes that the allegedly defamatory statement falls
within a category of communications listed in OCGA § 51-5-7, he
bears the burden of showing “‘good faith, an interest to be upheld, a
statement properly limited in its scope, a proper occasion, and
publication to proper persons.’” Zeh, 312 Ga. at 661 n.16 (citation
omitted). The plaintiff then bears the burden of defeating the
defendant’s defense of conditional privilege. See, e.g., Saye, 295 Ga.
App. at 133. The plaintiff can do so by proving that “the privilege is
used merely as a cloak for venting private malice and not bona fide
in promotion of the object for which the privilege is granted.” OCGA
§ 51-5-9.
3. A Review of the History and Context of OCGA § 51-5-9 Shows
That the “Private Malice” Referenced in That Statute Is
Derived From Legal Principles Developed Before, and Apart
From, the New York Times “Actual Malice” Standard
The question we must answer in this case is whether the
the parties in connection therewith;
(8) Truthful reports of information received from any
arresting officer or police authorities; and
(9) Comments upon the acts of public men or public women
in their public capacity and with reference thereto.
18
“private malice” referenced in OCGA § 51-5-9 signifies the “actual
malice” defined by the United States Supreme Court in New York
Times—that is, knowledge of falsity or reckless disregard for truth.
The short answer is no.
The longer answer involves analysis of the original public
meaning of the phrase “private malice” as it is used in OCGA § 51-
5-9. In considering the meaning of OCGA § 51-5-9, “‘we must afford
the statutory text its plain and ordinary meaning, we must view the
statutory text in the context in which it appears, and we must read
the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.’” Seals v. State,
311 Ga. 739, 740 (860 SE2d 419) (2021) (citation omitted),
disapproved on other grounds by Gonzales v. State, 315 Ga. 661 (884
SE2d 339) (2023). “The ordinary public meaning of statutory text
that matters is the meaning the statutory text had at the time it was
enacted.” Id. (considering the original public meaning of a statute).
Cf. Olevik v. State, 302 Ga. 228, 235 (806 SE2d 505) (2017)
(explaining that “there are few principles of Georgia law more
19
venerable than the fundamental principle that a constitutional
provision means today what it meant at the time that it was
enacted”). Determining this meaning requires us to consider the
text of the statute in the context in which it was originally enacted.
See Seals, 311 Ga. at 740. “‘The primary determinant of a text’s
meaning is its context, which includes the structure and history of
the text and the broader context in which that text was enacted,
including statutory and decisional law that forms the legal
background of the written text.’” Id. (citation omitted).
The text of what is now OCGA § 51-5-9 was originally enacted
as part of Georgia’s first Code in 1860. See Georgia Code of 1860 §
2923 (effective Jan. 1, 1863). Accordingly, in determining the
original public meaning of OCGA § 51-5-9, we look to the text of the
statute in the context of its first enactment in 1860. See Seals, 311
Ga. at 740. Our search for the meaning of statutory text “always
begins with the text itself.” Sons of Confederate Veterans v. Henry
County Bd. of Commissioners, 315 Ga. 39, 47 (880 SE2d 168) (2022)
(conducting an original public meaning analysis of text that was
20
carried forward from the Georgia Constitution of 1798). Although
we typically focus on the ordinary meaning the text had at the time
it was enacted, see, e.g., Seals, 311 Ga. at 740, as explained more
below, in this case, it is apparent that “private malice” is a legal term
of art that around the time the text of the first version of OCGA §
51-5-9 was codified in 1860, was often used in the legal context of
explaining what a plaintiff must show to overcome a defendant’s
defense of conditional privilege in a defamation case. See, e.g., JOHN
TOWNSHEND, A TREATISE ON THE WRONGS CALLED SLANDER AND
LIBEL, AND ON THE REMEDY BY CIVIL ACTION FOR THOSE WRONGS,
TOGETHER WITH A CHAPTER ON MALICIOUS PROSECUTION § 225 (4th
ed. 1890) (“TOWNSHEND”) (explaining that a plaintiff can defeat a
conditional-privilege defense in a defamation case by showing that
the defendant “avail[ed] himself of his situation to gratify private
malice by uttering slanderous expressions”).7 So to determine the
7 As explained in footnote 11 below, although the legal showing necessary
to defeat a defense of conditional privilege was traditionally described using
the term of art “private malice,” other terms that encompassed the same
meaning, including “malice,” “actual malice,” and “express malice,” were also
21
meaning of the term “private malice” in the earliest version of OCGA
§ 51-5-9, we look to the legal usage of that term in the context in
which the statute was first enacted in 1860.
Generally, a key aspect in assessing the context in which a
statute was enacted is the body of pre-enactment decisions of this
Court interpreting the meaning of certain text that the drafters of
the statute chose to use. Cf. Olevik, 302 Ga. at 236. But prior to
1860, there was little Georgia appellate decisional law about civil
defamation principles, let alone conditional privilege to claims of
defamation—likely because this Court was established only 15 years
used.
We note that we often look to contemporaneous dictionaries from around
the time the statutory text was adopted to determine the ordinary meaning of
that text—although “[d]ictionaries cannot be the definitive source of ordinary
meaning in questions of textual interpretation because they are acontextual,
and context is a critical determinant of meaning.” State v. SASS Group, LLC,
315 Ga. 893, 898-899 (885 SE2d 761) (2023). The term of art “private malice”
was not included in the earliest version of Black’s Law Dictionary. See HENRY
CAMPBELL BLACK, A DICTIONARY OF LAW (1891). But dictionaries defining the
ordinary meaning of “private” and “malice” around the time the first version of
OCGA § 51-5-9 was enacted comport with the traditional legal meaning that
was ascribed to the term of art “private malice,” as explained further below.
See, e.g., NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE, 804, 1039 (1865) (defining “[p]rivate” in pertinent part as
“[b]elonging to, or concerning, an individual person” and defining “[m]alice” in
pertinent part as “ill-will” or “a disposition to injure others”).
22
earlier, see Acts of 1845, 18, and few decisions were reported at that
time. Indeed, the parties have not pointed us to, and we have not
found, any Georgia decisional law prior to 1860 that provides
significant clues about the meaning of the “private malice” required
to defeat a conditional privilege.
Thus, we look for guidance to other legal authority that existed
around the time OCGA § 51-5-9 was enacted in 1860 that
interpreted the term of art “private malice” within the context of
overcoming a conditional-privilege defense to a defamation claim.
Cf. Olevik, 302 Ga. at 236 (explaining that constitutions and
statutes “‘are properly to be expounded in the light of conditions
existing at the time of their adoption’”) (citation omitted). In so
doing, we look to the body of decisional law regarding conditional
privileges that developed in England around the nineteenth century
(around the time OCGA § 51-5-9 was codified in Georgia in 1860),8
8 It appears that although certain civil defamation principles developed
at English common law during the fifteenth and sixteenth centuries, the
doctrine of conditional privileges was not meaningfully developed until around
the nineteenth century. See generally C.G. ADDISON, et al., WRONGS AND
23
cases from American states from around that time that carried
forward the legal principles set forth in those English defamation
decisions, and prominent nineteenth century treatises describing
and analyzing the legal doctrine of conditional privilege as it applied
in both England and in American states in the early nineteenth
century. Although such authority is not binding on this Court, it
can be persuasive evidence of the original public meaning of OCGA
§ 51-5-9—the meaning that the drafters of the first version of OCGA
§ 51-5-9 understood that provision to have when it was originally
codified in 1860—especially to the extent that authority used and
interpreted language similar to (and within the same legal context
of) the text that the drafters of the first version of OCGA § 51-5-9
chose to use in that statute. Cf. Elliott v. State, 305 Ga. 179, 193-
195 (824 SE2d 265) (2019) (examining the backdrop of English
THEIR REMEDIES: A TREATISE ON THE LAW OF TORTS, Chapter XVII (4th ed.
1882) (“ADDISON”). Because the English common law of defamation as it
existed on May 14, 1776—which was adopted by our General Assembly except
to the extent that it was displaced by our own constitutional or statutory law,
see OCGA § 1-1-10 (c) (1)—did not comprise a body of law regarding conditional
privileges, it offers little guidance in determining the meaning of OCGA § 51-
5-9.
24
common law and early American decisional law in determining the
meaning of a provision in the Georgia Constitution of 1877).
(a) The Legal Backdrop Against Which OCGA § 51-5-9 Was
Enacted
(i) Malice in Law and Malice in Fact
In England and in the American states around the early
nineteenth century, defamation was a strict-liability tort that did
not require proof of falsity, fault, or actual damages. See Mathis v.
Cannon, 276 Ga. 16, 20 (573 SE2d 376) (2002). See also C.G.
ADDISON, et al., WRONGS AND THEIR REMEDIES: A TREATISE ON THE
LAW OF TORTS § 1087-1089 (4th ed. 1882) (“ADDISON”). “[T]he law
implie[d] malice from the very fact of the publication of the
defamatory matter.” ADDISON, supra, at § 1090. This sort of legal
“malice” (or “malice in law”) meant “a wrongful act, done
intentionally, without just cause or excuse,” and was distinct from
“malice in fact,” which in accordance with the general
understanding of the term “malice,” meant “ill will against a
person,” Bromage v. Prosser, 107 Eng. Rep. 1051, 1054 (1825), or an
intent “to injure,” Hart v. Reed, 40 Ky. 166, 169 (1840). See also,
25
e.g., ADDISON, supra, at § 1090; TOWNSHEND, supra, at §§ 87, 209.
Because legal malice was presumed in defamation cases, a
defendant was strictly liable for publishing a defamatory
statement—even in the absence of “malice in fact” (that is, “ill will
against a person” or an intent “to injure”)—unless he could establish
as his defense that the statement was true or that a privilege
applied. See ADDISON, supra, at § 1089.9
(ii) Privileges Applicable to Claims of Defamation
Early nineteenth century English and American law
recognized absolute privileges and conditional privileges. See
TOWNSHEND, supra, at § 209. The latter applied when an allegedly
defamatory statement was considered reasonably necessary to
further a particular societal interest. See ADDISON, supra, at § 1091
(noting that a privileged communication “is fairly made by one
person to another in the discharge of some public or private duty,
9 The truth of an allegedly defamatory statement was a complete defense
in England and the American states by the nineteenth century and remains so
under Georgia law today. See, e.g., ADDISON, supra, at § 1089; Dellinger-Allen
v. O’Brien, 355 Ga. App. 811, 817 (846 SE2d 124) (2020).
26
whether legal, moral, or social, or in the conduct of his own affairs
in matters where his interest is concerned”). In this respect,
conditional privileges attached to many sorts of “occasion[s],” or
types of communications, so long as the statement was made for the
protection of one’s own legitimate interests or the legitimate
interests of another person. TOWNSHEND, supra, at §§ 208-209. See
also, e.g., Dunn v. Winters, 21 Tenn. 512, 513 (1841). 10
A conditional privilege prevented the inference of legal malice
and afforded the defendant a “qualified defen[s]e.” Toogood v.
Spyring, 149 Eng. Rep. 1044, 1050 (1834). See also, e.g., Lewis v.
Chapman, 16 N.Y. 369, 373 (1857). In this sense, if a defendant
established that an allegedly defamatory statement was
conditionally privileged, the presumption of legal malice was
rebutted, such that the conditional-privilege defense constituted an
10 As pertinent to the circumstances in this case, we note that around the
nineteenth century in England and the American states, one such “occasion”
to which a conditional privilege applied included statements made by counsel
that were related to the circumstances of a pending legal proceeding. See
TOWNSHEND, supra, at § 225 (explaining that statements made by counsel
“that he may reasonably believe to be necessary for the successful maintenance
of his action or defense” were conditionally privileged).
27
exception to the general rule that malice was implied in every
defamatory publication. See TOWNSHEND, supra, at § 209.
A plaintiff could defeat a defense of conditional privilege,
however, by establishing that the defendant acted with malice in
fact when he made the allegedly defamatory statement. See
Toogood, 149 Eng. Rep. at 1050 (explaining that the “qualified
defen[s]e” provided by a conditional privilege “depend[ed] upon the
absence of actual malice”); TOWNSHEND, supra, at § 209 (noting that
a conditional privilege could be “destroy[ed]” if the plaintiff “prove[d]
that there was malice in fact”). As mentioned above, a showing of
“malice in fact” generally required a showing of something like “ill
will” or “an intent to injure.” ADDISON, supra, at § 1090;
TOWNSHEND, supra, at § 209.11 Such a showing by the plaintiff
11 Notably, in England and the United States around the nineteenth
century, the “malice in fact” that was required to defeat a conditional privilege
was described using multiple terms, such as “malice,” “actual malice,” “express
malice,” and “private malice.” See, e.g., ADDISON, supra, at § 1091 (noting that
a conditional privilege bars recovery “in the absence of express malice”); id. at
§ 1091 (l) (noting that a communication is conditionally privileged “in the
absence of malice or bad faith”); id. at § 1103 (explaining that “actual malice”
must be shown to destroy a conditional privilege “in the shape of proof that the
defendant was not actuated by a justifiable motive, but by some evil intention
28
established that the defendant’s assertion of conditional privilege
(i.e., that he made the allegedly defamatory statement with the bona
fide intent of protecting a legitimate societal interest) was a pretense
to cover up his true motive in making the statement: an intent to
injure the plaintiff. See, e.g., Wakefield v. Smithwick, 49 N.C. 327,
330 (1857) (explaining that to defeat a conditional privilege, “the
burden is upon the plaintiff to prove that [the allegedly defamatory
statement] was not made bona fide in consequence of such relation,
but out of malice, and that the existence of such relation was used
as a mere cover for [the defendant’s] malignant designs”) (italics in
original); Gilpin v. Fowler, 156 Eng. Rep. 263, 267-268 (1854)
(holding that there was evidence of malice to defeat a conditional
privilege where the defendant, a parson who oversaw a school,
distributed a letter to his parishioners containing defamatory
statements about a schoolmaster at a rival school under the pretext
towards the plaintiff”); TOWNSHEND, supra, at § 209 n.1 (explaining that
“malice” defeats a conditional privilege); id. at § 225 (noting that the privilege
does not apply when the defendant “avail[s] himself of his situation to gratify
private malice by uttering slanderous expressions”).
29
that the defendant was acting in the interests of his parishioners).
Specifically, a plaintiff in early nineteenth century England
and the American states could establish that the defendant acted
with ill will or an intent to injure, such that his claim of conditional
privilege was a pretext, by offering evidence of the defendant’s
improper motive in making the statement. See TOWNSHEND, supra,
at § 245. In determining whether the defendant’s motive was to
protect a legitimate interest (and thus bona fide) or not (and thus a
pretense to hide his true motive of malice), courts generally
considered all of the circumstances in a case, including for instance,
evidence showing that the allegedly defamatory statement “was
false within the knowledge of the publisher; or . . . showing a bad
motive in making the publication, as that it was made more publicly
than was necessary to protect the interests of the parties concerned,
or that it contained matter not relevant to the occasion, or that the
publisher entertained ill-will toward the person whom the
publication concerned.” Id. Whether a plaintiff had established
malice to defeat a defense of conditional privilege was generally a
30
question for the jury. See, e.g., Wakefield, 49 N.C. at 331; Gilpin,
156 Eng. Rep. at 268.
In sum, the early nineteenth century English and American
law cited above recognized a conditional privilege for statements
made with a bona fide view to protect a legitimate societal or
personal interest. But a plaintiff could defeat such a defense by
showing that the defendant used the privilege as a pretense to hide
his true motive of malice. To that end, if the plaintiff could establish
that the defendant made the allegedly defamatory statement with
ill will or an intent to injure the plaintiff—rather than with the
honest purpose of promoting a legitimate interest—the privilege
was lost. 12
12 In 1845, the United States Supreme Court reiterated these principles
in a defamation case in which the plaintiff, who held the office of collector of
customs, alleged that the defendants made defamatory statements about him
to the president and to other public officials. See White v. Nicholls, 44 U.S.
266, 267-278 (11 LE 591) (1845). Citing nineteenth century English cases, the
Court explained that a conditionally privileged statement meant “‘that the
occasion of making it rebuts the prima facie inference of malice arising from
the publication of matter prejudicial to the character of the plaintiff, and
throws upon him the onus of proving malice in fact.’” Id. at 287 (citation
omitted; italics in original). In this respect, the Court concluded that to defeat
a conditional privilege, a plaintiff bears the burden of showing that “express
31
(b) The Codification of Nineteenth Century Defamation
Principles in a Precursor to OCGA § 51-5-9 and Early
Georgia Decisional Law Applying Those Principles
The text that is now found in OCGA § 51-5-9 was first codified
in Section 2923 of the Georgia Code of 1860, which said: “In every
case of privileged communications, if the privilege is used merely as
a cloak for venting private malice, and not bona fide in promotion of
the object for which the privilege is granted, the party defamed has
malice” was “the true motive” of the defendant’s conduct. Id. at 291. The
plaintiff could make such a showing, the Court held, by establishing “falsehood
and the absence of probable cause.” Id. Concluding that the trial court had
erroneously charged the jury in several respects as to these principles and that
the issues of whether a conditional privilege existed and whether the plaintiff
had proved malice were for the jury, the Court remanded the case for another
trial. See id. at 291-292. We also note that more than 100 years later, the
Court explained, consistent with its decision in White, that “long before New
York Times was decided,” conditional privileges protected a publisher of an
allegedly defamatory statement from liability “unless the publication was
made with malice,” which “depended upon a showing that the defendant acted
with improper motive.” Herbert v. Lando, 441 U.S. 153, 163-164 & n.12 (99
SCt 1635, 60 LE2d 115) (1979). Although White and Herbert have no binding
effect on our interpretation of OCGA § 51-5-9, which is a question of state—not
federal—law, these cases (like the English and early American decisional law
and treatises we cite above) illustrate the principles that formed the basis of
early American defamation law in the states, including Georgia defamation
law. See, e.g., Stanley v. Patterson, 314 Ga. 582, 584 n.3 (878 SE2d 529) (2022)
(explaining that United States Supreme Court precedent, although not
binding, was persuasive in light of its “thorough assessment of the common-
law basis of federal judicial immunity that also formed the basis for Georgia’s
judicial immunity doctrine”).
32
a right of action.” (Italics in original). See also Code of 1860 §§ 2917
(explaining that in defamation cases, “malice is inferred from the
character of the charge” and that “in cases of privileged
communications,” proof rebutting the inference of malice barred
recovery); 2922 (listing certain types of conditionally privileged
communications).13 The text of Section 2923, which has been
included in substantially similar form in every subsequent version
of the Code, is consonant with the traditional English and early
American legal rule regarding the showing required to defeat a
conditional-privilege defense discussed above, and nothing in the
text of Section 2923 suggests that it altered that established rule.
We therefore conclude that Section 2923 codified the rule that a
13 Although not at issue here, we note that this Court has understood the
phrase “[i]n every case of privileged communications” in the text of what is now
OCGA § 51-5-9 to mean “every case of conditional privilege.” Wilson v.
Sullivan, 81 Ga. 238, 243 (7 SE 274) (1888). We also note that the text of
Section 2917 of the Georgia Code of 1860 has been carried forward in
substantially similar form in every version of the Code and is now found in
OCGA § 51-5-5. And many of the sorts of conditional privileges listed in
Section 2922 of the Code of 1860 are now enumerated in OCGA § 51-5-7,
including the conditional privilege that the Court of Appeals concluded applied
in this case: “Comments of counsel, fairly made, on the circumstances of a case
in which he or she is involved and on the conduct of the parties in connection
therewith.”
33
defense of conditional privilege cannot succeed if the plaintiff
establishes that the defendant made the allegedly defamatory
statement with ill will or an intent to injure rather than with the
honest purpose of promoting a legitimate interest.
Consistent with this conclusion, the first Georgia decisions
applying the predecessors to OCGA § 51-5-9 set forth the principle
that a plaintiff can defeat a conditional-privilege defense by showing
that the defendant acted with ill will or an intent to injure the
plaintiff when he made the allegedly defamatory statement. For
example, in Lester v. Thurmond, 51 Ga. 118 (1874), the plaintiff sued
the defendant, a lawyer, for defamation based on a statement that
he made during a criminal trial. See id. at 119. Explaining that the
defendant’s statement was “privileged” because it was made “in the
discharge of his duty in the regular course of judicial proceedings in
the courts,” this Court determined that the plaintiff was required to
prove “actual malice” or “express malice,” meaning that he must
establish that the defendant “avail[ed] himself of his position as an
advocate maliciously to slander another by uttering words wholly
34
unjustifiable.” Id. at 120 (emphasis in original). Concluding that
the plaintiff had failed to submit any evidence that the defendant’s
statement was “spoken maliciously,” this Court upheld the jury’s
verdict for the defendant. Id. (emphasis in original). 14 See also
Pearce v. Brower, 72 Ga. 243, 244-246 (1884) (reversing the trial
court’s grant of the defendant’s motion for a “non-suit” on the
grounds that the allegedly defamatory statement was conditionally
privileged and the plaintiff had failed to overcome the privilege by
“show[ing] malice” because that issue was for the jury to decide, and
noting that on remand, if the statement was “written in good faith,
without malice, and with no intent to injure the reputation of the
plaintiff,” the conditional-privilege defense would apply, “[b]ut if the
privilege was used merely as a cloak for venting private malice, and
not bona fide in promotion of the object for which the privilege is
14 The text of OCGA § 51-5-8, which as discussed above, provides that
“charges, allegations, and averments contained in regular pleadings” are
absolutely privileged, was first enacted in substantially similar form in 1895,
more than 20 years after Lester was decided. See Code of 1895 § 3842. Lester
did not address whether the allegedly defamatory statements in that case fell
within the ambit of absolute privilege.
35
granted, then the plaintiff could recover”) (italics in original); Jones
v. Forehand, 89 Ga. 520, 523-524 (16 SE 262) (1892) (explaining that
a conditionally privileged statement is “made with the bona fide
intent on the part of the defendant to protect his own interest in
[the] matter” and is “prima facie protected,” and “this protection
remains until overcome by proof of express malice; and, though the
language, if violent or excessive, may amount to proof of express
malice, it should be left to the jury to say whether it amounts to such
proof or not”) (italics in original).
Throughout the first half of the twentieth century, Georgia
appellate courts continued to follow the rule that a plaintiff, to
defeat a defense of conditional privilege, must establish that the
defendant acted with ill will or an intent to injure. See, e.g., Holmes
v. Clisby, 118 Ga. 820, 825 (45 SE 684) (1903) (explaining that the
question of conditional privilege is “dependent upon the intention
with which [the allegedly defamatory statement] was published. If
bona fide, with the sole purpose of protecting himself, it would be; if
otherwise, it would not” and noting that the issue should be
36
determined by a jury); Sheftall v. Central of Georgia Railway
Company, 123 Ga. 589, 592-593 (51 SE 646) (1905) (citing various
provisions of TOWNSHEND, supra, in explaining the defense of
conditional privilege; setting forth the elements of conditional
privilege that Georgia appellate courts still apply today—“good
faith, an interest to be upheld, a statement limited in its scope to
this purpose, a proper occasion and publication in a proper manner
and to proper parties only”; and noting that the privilege would be
lost if it “was used as a cloak for venting malice”); Atlanta News
Publishing Co. v. Medlock, 123 Ga. 714, 719-720 (51 SE 756) (1905)
(explaining that a conditional privilege could be defeated by “actual
malice” or “express malice”); Gillis v. Powell, 129 Ga. 403, 409-411
(58 SE 1051) (1907) (noting that “the law will not tolerate [the
conditional privilege] being used to vent the malice of any
individual, even though he may be one who thinks he has been
grievously wronged” and that if the defendant made the allegedly
defamatory statement “in good faith and without malice, and to the
proper persons, at proper times and places, he would be entitled to
37
a verdict in his favor. On the other hand, if it should appear that he
was animated by malice in his statements, the plaintiff would be
entitled to recover”); Nicholson v. Dillard, 137 Ga. 225, 231 (73 SE
382) (1911) (explaining that a statement is conditionally privileged
if the defendant makes it “with a bona fide intent to protect his own
interest in a matter where it is concerned; but in such a case he must
do so at his peril, if he exceeds the limit of his privilege and uses the
language, not merely to protect his interest, but to vent his private
malice on the person spoken of”); McIntosh v. Williams, 160 Ga. 461,
465 (128 SE 672) (1925) (explaining that if an allegedly defamatory
statement was conditionally privileged, such that “it was made in
good faith and without malice by the defendant to protect his
interest . . . , then the plaintiff could not recover”); Atlanta Journal
Co. v. Doyal, 82 Ga. App. 321, 332-333 (60 SE2d 802) (1950)
(explaining that the term “malice” in the law of defamation can “be
used in two senses”: “to denote absence of lawful excuse or to
indicate absence of privileged occasion,” which is “‘[i]mplied’ malice
or ‘malice in law,’” and to denote “intent of mind and heart, or ill will
38
against a person,” which is “‘express malice’ or ‘malice in fact’” and
saying that “[p]roof that the communication is privileged rebuts the
prima facie presumption of malice in law” and that the “only effect
of privilege is to require the plaintiff to prove actual malice”); Shiver
v. Valdosta Press, 82 Ga. App. 406, 411 (61 SE2d 221) (1950)
(concluding that a conditional privilege is defeated “if the defendant
acted with express malice and a desire to injure the plaintiff and
expose him to public hatred, contempt and ridicule in the
publication”). 15
Thus, consistent with the early nineteenth century legal
landscape discussed above, for nearly 100 years, appellate cases in
15 Consistent with early nineteenth century decisional law in England
and the American states, a plaintiff in Georgia could establish that the
defendant made an allegedly defamatory statement with ill will or an intent to
injure by showing that he knew that the statement was false or that he
harbored feelings of ill will toward the plaintiff. See, e.g., Jordan v. Hancock,
91 Ga. App. 467, 474 (86 SE2d 11) (1955) (noting that “under the pleadings and
proof in this case, there was an issue of fact as to whether the communication
referred to was made maliciously with conscious knowledge that it was false,
in which case there would be such abuse of the privilege claimed as to deny to
the defendants the right to claim its protection from liability”); Van Gundy v.
Wilson, 84 Ga. App. 429, 430 (66 SE2d 93) (1951) (noting in the “[s]yllabus by
the [c]ourt” that a plaintiff can show actual malice to defeat a conditional
privilege “by introducing in evidence extraneous circumstances which show an
actual spite, ill will or desire to injure the person defamed”).
39
Georgia applied the rule that a defamation plaintiff, to defeat a
defense of conditional privilege, must establish that the defendant’s
claim that he made an allegedly defamatory statement to promote a
legitimate interest is a sham or ruse—and that he made the
statement with “private malice,” meaning with ill will toward the
plaintiff or with an intent to injure him. But something happened
in 1964 that injected confusion into the Court of Appeals’s analysis
of private malice: the United States Supreme Court decided New
York Times, which formulated, as a matter of federal constitutional
law, a meaning for the term “actual malice” that differed from the
meaning that Georgia defamation law had ascribed to “private
malice.” In the wake of New York Times, it appears that the Court
of Appeals, over time and without analysis of the legal context of
OCGA § 51-5-9, developed a line of precedent that engrafted the
constitutional standard onto Georgia law. To better explain, we turn
to the federal constitutional law on defamation set forth in New York
Times and its progeny and the effect of those constitutional
requirements on state defamation law.
40
(c) New York Times and Its Progeny
In New York Times, the United States Supreme Court held that
the First Amendment places certain limitations on state defamation
law. In that case, a public official in Alabama sued the publisher of
the New York Times for defamation in state court based on a
political advertisement condemning the actions of local public
officials with respect to their handling of civil rights demonstrations
in Alabama. See New York Times, 376 U.S. at 256-259. It was
undisputed that some of the statements in the advertisement were
false, such that the publishing company would be strictly liable
under Alabama law unless it could establish that the statements
were true. See id. 256-263. Noting that a “rule compelling the critic
of official conduct to guarantee the truth of all his factual assertions”
would deter protected speech, the Court announced that the First
Amendment
prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct
unless he proves that the statement was made with
“actual malice”—that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.
41
Id. at 279-280.
The “actual malice” standard, which the Court has since
described as “a constitutional privilege,” Gertz v. Robert Welch, Inc.,
418 U.S. 323, 334 (94 SCt 2997, 41 LE2d 789) (1974), was later
extended beyond “public officials” to plaintiffs who are “public
figures,” see Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (87
SCt 1975, 18 LE2d 1094) (1967) (plurality opinion). 16 The United
States Supreme Court has also held that even a private-figure
plaintiff is required to prove “actual malice” in order to recover
presumed or punitive damages if the defamatory statement was
about a matter of public concern. See Gertz, 418 U.S. at 349-350.
See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.
749, 761-763 (105 SCt 2939, 86 LE2d 593) (1985) (explaining that
“‘[w]hether . . . speech addresses a matter of public concern must be
determined by [the expression’s] content, form, and context . . . as
revealed by the whole record’” and holding that a false credit report
16Such a “public-figure” plaintiff has assumed a role of “especial
prominence in the affairs of society,” either for all purposes or for the limited
purpose of the particular public controversy at issue. Gertz, 418 U.S. at 345.
42
regarding the plaintiff was not a matter of public concern) (citation
omitted).
In such cases, “actual malice” must be proved not merely by a
preponderance of the evidence but by clear and convincing evidence,
see New York Times, 376 U.S. at 285-286; Gertz, 418 U.S. at 342,
which is an “extremely high” standard of proof, Zeh, 312 Ga. at 669
(citation and punctuation omitted). And the United States Supreme
Court has made clear that “actual malice” in the constitutional sense
requires a plaintiff to show “that the defendant actually had a ‘high
degree of awareness of . . . probable falsity.’” Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (109 SCt
2678, 105 LE2d 562) (1989) (citation omitted). See also St. Amant
v. Thompson, 390 U.S. 727, 731 (88 SCt 1323, 20 LE2d 262) (1968)
(“There must be sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his
publication.”). Thus, the term “actual malice” as defined in New
York Times is more stringent than the sort of “malice in fact” that a
plaintiff was required to prove under the traditional rule to defeat a
43
conditional privilege. Indeed, the United States Supreme Court has
emphasized that “the actual malice standard is not satisfied merely
through a showing of ill will or ‘malice’ in the ordinary sense of the
term” and that the “phrase ‘actual malice’ is unfortunately confusing
in that it has nothing to do with bad motive or ill will.” Harte-Hanks,
491 U.S. at 666 & n.7. See also, e.g., Beckley Newspapers Corp. v.
Hanks, 389 U.S. 81, 82 (88 SCt 197, 19 LE2d 248) (1967) (explaining
that an instruction that the jury “could find for the [public-official
plaintiff] if it were shown that [the defendant] had published the
editorials ‘with bad or corrupt motive,’ or ‘from personal spite, ill will
or a desire to injure [the] plaintiff” misstated the “actual malice”
standard in New York Times, which requires a showing that the
defendant made the allegedly defamatory statement “‘with
knowledge that it was false or with reckless disregard of whether it
was false or not’”). 17
17 Notably, the United States Supreme Court borrowed the term “actual
malice” from the traditional rule that a plaintiff must show malice in fact or
“actual malice” to defeat a conditional privilege, although the Court defined
“actual malice”—in its constitutional sense—differently than that term was
44
The constitutional “actual malice” requirement does not
ordinarily understood. In this respect, in announcing the “actual malice”
standard in New York Times, the Court cited a 1908 Kansas Supreme Court
case, Coleman v. MacLennan, 78 Kan. 711 (98 P 281) (1908). See New York
Times, 376 U.S. at 280. The Court recounted that in Coleman, which involved
a defamation lawsuit brought by a Kansas public official against a newspaper,
the Kansas Supreme Court held that a “‘qualified’” privilege exists for
“‘matters of public concern, public men, and candidates for office’” and a
plaintiff in such cases “‘must show actual malice, or go remediless.’” New York
Times, 376 U.S. at 281-282 (quoting Coleman, 78 Kan. at 285-286). But the
United States Supreme Court did not mention, much less import into its
definition of “actual malice” in the constitutional sense, the meaning that
Coleman ascribed to the phrase “actual malice.” Coleman defined “actual
malice” in the same way that it was defined by the traditional nineteenth
century rule. See 78 Kan. at 711 (stating that “[i]f [the allegedly defamatory
statement] be conditionally privileged, the plaintiff must prove malice, actual
evil-mindedness, or fail” and explaining that the plaintiff can provide such
proof “from an interpretation of the writing, its malignity, or intemperance by
showing recklessness in making the charge, pernicious activity in circulating
or repeating it, its falsity, the situation and relations of the parties, the facts
and circumstances surrounding the publication, and by other evidence
appropriate to a charge of bad motives as in other cases”). See also, e.g., John
Bruce Lewis & Bruce L. Ottley, New York Times v. Sullivan at 50: Despite
Criticism, the Actual Malice Standard Still Provides “Breathing Space” for
Communications in the Public Interest, 64 DePaul L. Rev. 1, 23-24 (2014)
(noting that because Coleman’s definition of “actual malice” was “evil-
mindedness,” which was consistent with the traditional meaning of that term
(i.e., “‘spite or ill will’”), “‘Coleman does not align well with the actual malice
rule described in Sullivan’”) (citation omitted). Indeed, the issue in Coleman
was not the meaning of “actual malice,” which as discussed above, was well
settled in early American law; rather, the Kansas Supreme Court was
concerned with whether Kansas should adopt a conditional privilege for
allegedly defamatory statements about “matters of public concern, public men,
and candidates for office.” 78 Kan. at 723. Thus, although the term “actual
malice” is derived from the use of that phrase in traditional conditional-
privilege cases, the constitutional standard did not mirror traditional
principles. See Harte-Hanks, 491 U.S. at 666 & n.7.
45
pertain, however, to defamation cases brought by private-figure
plaintiffs relating to statements that do not involve matters of public
concern. Those cases are controlled by Georgia law. About 10 years
after New York Times, the United States Supreme Court concluded
in Gertz that “the state interest in compensating injury to the
reputation of private individuals requires that a different rule
should obtain with respect to them” and accordingly held: “[S]o long
as they do not impose liability without fault, the States may define
for themselves the appropriate standard of liability for a publisher
or broadcaster of defamatory falsehood injurious to a private
individual.” 418 U.S. at 343, 347. In response to Gertz, this Court
abandoned the traditional rule imposing strict liability in
defamation cases and held that negligence is the appropriate
standard for determining fault in such cases. See Triangle
Publications, Inc. v. Chumley, 253 Ga. 179, 181-182 (317 SE2d 534)
(1984). Thus, when a defendant makes an allegedly defamatory
statement about a private-figure plaintiff that does not involve a
matter of public concern, he is generally held to a standard of
46
ordinary care as a matter of Georgia law. See Zeh, 312 Ga. at 650-
651.
In sum, the United States Supreme Court has held that the
First Amendment places limits on state defamation law when the
plaintiff is a public official or public figure and when a private-figure
plaintiff seeks presumed or punitive damages relating to a
defamatory statement about matters of public concern, such that the
“actual malice” standard announced in New York Times (i.e.,
knowledge of falsity or reckless disregard for truth) applies in those
sorts of cases.18 But the Court has determined that in all other
18 In such cases, we must faithfully apply the New York Times standard
established by the United States Supreme Court. See Zeh, 312 Ga. at 652 n.5.
We note, however, that two Justices on that Court have called for
reconsideration of New York Times. See Berisha v. Lawson, ___ U.S. ___, ___
(141 SCt 2424, 2425, 210 LE2d 991) (2021) (Thomas, J., dissenting from the
denial of certiorari) (stating that “[t]his Court’s pronouncement that the First
Amendment requires public figures to establish actual malice bears ‘no
relation to the text, history, or structure of the Constitution’”) (citation
omitted); id. at 2429-2430 (Gorsuch, J., dissenting from the denial of certiorari)
(noting that “[m]any Members of this Court have raised questions about
various aspects of Sullivan,” and “given the momentous changes in the
Nation’s media landscape since 1964, I cannot help but think the Court would
profit from returning its attention, whether in this case or another, to a field
so vital to the ‘safe deposit’ of our liberties”). See also, e.g., Blankenship v.
NBCUniversal, LLC, ___ U.S. ___, ___ (144 SCt 5, 217 LE2d 151) (2023)
(Thomas, J., concurring in the denial of certiorari) (reiterating that the Court
47
respects, the states are free to impose their own defamation rules,
so long as they do not impose strict liability. Consequently, when a
plaintiff is a private figure and does not seek presumed or punitive
damages flowing from a defamatory statement about a matter of
public concern, the “actual malice” standard in New York Times does
not apply, and Georgia defamation law controls. It is in these sorts
of cases that the Georgia statutes and decisional law about
conditional privileges come into play. 19
(d) Confusion About “Actual Malice” After New York Times
Consistent with the legal framework we just recounted, after
should revisit the “actual malice” standard).
19 Because the issues of whether a plaintiff in a defamation case is a
public or private figure and whether he seeks presumed or punitive damages
related to a defamatory statement about a matter of public concern determine
whether a court should apply federal constitutional law or state law, we
emphasize that Georgia courts generally should engage in that inquiry as a
threshold matter in defamation cases.
In addition, although not at issue in this case, we note that OCGA § 51-
5-7 (9) deems conditionally privileged under Georgia law “[c]omments upon the
acts of public men or public women in their public capacity and with reference
thereto.” But as discussed above, the United States Supreme Court has made
clear that in cases involving defamatory statements about public-official and
public-figure plaintiffs, states must apply, at a minimum, the constitutional
“actual malice” standard announced in New York Times.
48
New York Times, the Georgia Court of Appeals properly applied the
constitutional “actual malice” standard in some defamation cases
brought by public-official or public-figure plaintiffs, but applied
Georgia law—including the statutory requirement that a plaintiff,
to defeat a defense of conditional privilege, must prove “private
malice” or malice in fact, meaning ill will or an intent to injure—in
other defamation cases brought by private-figure plaintiffs. 20 In
other cases, however, the Court of Appeals stated—without
discussion of the well-settled, state-law rule that a showing of malice
in fact is sufficient to overcome a conditional-privilege defense—that
a plaintiff could defeat a conditional privilege only by establishing
constitutional “actual malice,” as that term was defined by the
United States Supreme Court in New York Times. 21
20 See, e.g., Thibadeau v. Crane, 131 Ga. App. 591, 592-593 (206 SE2d
609) (1974) (applying the constitutional “actual malice” standard in New York
Times to a defamation claim by a public-official plaintiff); Savannah Bank &
Trust Co. v. Sumner, 174 Ga. App. 229, 232 (329 SE2d 910) (1985) (holding
that the plaintiff could defeat the defendant’s conditional-privilege defense by
showing “actual malice,” meaning that he could introduce proof of “‘an actual
spite, ill will[,] or desire to injure the person defamed’”) (citation omitted).
21 See, e.g., Montgomery v. Pacific & Southern Co., 131 Ga. App. 712, 715-
49
Then, in 1988—almost 25 years after New York Times—the
Court of Appeals attempted to clarify its precedent regarding when
to apply the constitutional “actual malice” standard set out in New
York Times and when to apply the statutory standard of private
malice under the predecessors to OCGA § 51-5-9. See Diamond v.
American Family Corp., 186 Ga. App. 681, 684 (368 SE2d 350)
(1988) (overruling Montgomery v. Pacific & Southern Co., 131 Ga.
717 (206 SE2d 631) (1974) (holding that the plaintiff, a car service station
operator, who appeared to be a private figure (although the Court of Appeals
conducted no analysis as to that issue), had defeated the defense of conditional
privilege because he had shown that “there was a ‘reckless disregard of the
truth’ which is the equivalent of malice,” such that the trial court erred by
directing a verdict for the defendant) (quoting Curtis, 388 U.S. at 170),
overruled, as discussed more below, by Diamond v. American Family Corp.,
186 Ga. App. 681 (368 SE2d 350) (1988); Morton v. Stewart, 153 Ga. App. 636,
638 (266 SE2d 230) (1980) (noting that a public official is required to establish
“actual malice” under New York Times and that the plaintiff was required to
overcome “the conditional privilege that attaches to news reports of
proceedings of judicial bodies” and concluding that “‘actual malice’ is the sine
qua non for [the plaintiff] to prevail on either theory”); Morton v. Gardner, 155
Ga. App. 600, 604 (271 SE2d 733) (1980) (holding that the plaintiff was a public
official but that the allegedly defamatory statement did not relate to his official
conduct, such that the rule in New York Times did not apply, but nevertheless
concluding that the plaintiff was required to prove “actual malice” under New
York Times to defeat the defendant’s showing of conditional privilege);
Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124) (1981) (holding
that a showing of knowledge of falsity or reckless disregard for truth under
New York Times negates a conditional privilege).
50
App. 712 (206 SE2d 631) (1974), and another case to the extent they
held “that the qualified privilege for the reporting of matters of
public concern may be defeated only by a showing of actual malice”
as defined in New York Times).22 And over the next 15 years, it
appears that the Court of Appeals generally applied the New York
Times standard of constitutional actual malice (i.e., knowledge of
falsity or reckless disregard for truth) in defamation cases involving
public-official and public-figure plaintiffs and the state-law
standard of private malice (i.e., ill will or intent to injure) in cases
involving whether a defendant’s allegedly defamatory statement
against a private-figure plaintiff was conditionally privileged under
Georgia law. 23
22 The other case that the Court of Appeals overruled in Diamond was
WSAV-TV, Inc. v. Baxter, 119 Ga. App. 185 (166 SE2d 416) (1969). That case
held that when a defendant has made a prima facie showing of a conditional
privilege, “the burden is then upon the plaintiff to establish[] that the
publication was made with actual malice.” Id. at 185. But WSAV-TV did not
mention New York Times or its progeny and instead cited a prior version of
OCGA § 51-5-9 and cases applying the traditional rule requiring malice in fact
to overcome a conditional-privilege defense. See id.
23 See, e.g., Williams v. Cook, 192 Ga. App. 811, 812 (386 SE2d 665)
(1989); Brewer v. Rogers, 211 Ga. App. 343, 347-348 (439 SE2d 77) (1993);
51
But in the early 2000s, the Court of Appeals reversed course
and again concluded, as it had in several cases prior to Diamond,
that a private-figure plaintiff must establish “actual malice” within
the meaning of New York Times to defeat a state-law conditional
privilege, without explanation as to why the constitutional standard
would apply in such cases, which involved only matters of Georgia
law. See, e.g., Cooper-Bridges v. Ingle, 268 Ga. App. 73, 77 (601
SE2d 445) (2004) (holding that to defeat a defense of conditional
privilege, the plaintiff was required to show “actual malice”—that
the defendant “knew that the statements were false or published
with reckless disregard of whether they were false or not,” citing
Morton v. Gardner, 155 Ga. App. 600, 604 (271 SE2d 733) (1980),
but also noting that “‘[m]alice to avoid qualified privilege must be
actual and with evil intent’”) (citation omitted).24
Purvis v. Ballantine, 226 Ga. App. 246, 250 (487 SE2d 14) (1997); Dominy v.
Shumpert, 235 Ga. App. 500, 504-505 (510 SE2d 81) (1998); Sparks v. Peaster,
260 Ga. App. 232, 237 (581 SE2d 579) (2003).
24 See also, e.g., Rabun v. McCoy, 273 Ga. App. 311, 316 (615 SE2d 131)
(2005) (same, citing Cooper-Bridges and Gardner), overruled on other grounds
52
The line of Court of Appeals cases applying the constitutional
“actual malice” standard to a private-figure plaintiff seeking to
defeat a conditional-privilege defense is not grounded in the
historical and legal background of OCGA § 51-5-9. Rather, it
appears that this line of cases inadvertently imported the New York
Times “actual malice” standard into OCGA § 51-5-9, without
analysis of the limited circumstances in which the United States
Supreme Court has said that the standard applies as a matter of
United States constitutional law, or of that Court’s
acknowledgement that the New York Times “actual malice”
by West v. City of Albany, 300 Ga. 743 (797 SE2d 809) (2017); Smith v. Henry,
276 Ga. App. 831, 832-834 (625 SE2d 93) (2005) (same, citing Cooper-Bridges);
Fine v. Communication Trends, Inc., 305 Ga. App. 298, 302-305 (699 SE2d 623)
(2010) (same, citing Rabun and Smith); Murray v. Community Health Systems
Professional Corp., 345 Ga. App. 279, 287-288 (811 SE2d 531) (2018) (same,
citing Cooper-Bridges); Neff v. McGee, 346 Ga. App. 522, 525-530 (816 SE2d
486) (2018) (same, citing Smith).
Notably, 30 years ago, the United States Court of Appeals for the
Eleventh Circuit recognized that our Court of Appeals has “over time and
without explanation,” “engrafted upon OCGA § 51-5-9 the constitutional
‘actual malice’ standard outlined for public figure defamation cases in New
York Times Co. v. Sullivan.” Hammer v. Slater, 20 F3d 1137, 1141-1142 (11th
Cir. 1994). We note, however, that the parties in this case have not pointed to,
and we have not found, any cases from this Court that have conflated the
constitutional “actual malice” standard and the “private malice” standard,
likely because the bulk of appellate defamation cases in Georgia has been
decided in the Court of Appeals.
53
standard is not based on the traditional meaning of “actual malice.”
And as we explain more below, we therefore conclude that the
“actual malice” standard in New York Times does not apply in the
context of analyzing whether a private-figure plaintiff whose claim
is based on defamatory statements that do not involve matters of
public concern has overcome a conditional privilege as a matter of
Georgia law.
4. The “Private Malice” Referenced in OCGA § 51-5-9 Is Not
Equivalent to the “Actual Malice” Standard the United States
Supreme Court Articulated in New York Times
To recap, we explained above that the first version of OCGA
§ 51-5-9, which was enacted in 1860, codified the traditional rule
that a plaintiff, to overcome a defense of conditional privilege, must
show that the defendant’s claim that he made an allegedly
defamatory statement to promote a legitimate interest is a sham
and that instead, he made the statement with ill will toward the
plaintiff or with an intent to injure him. Georgia appellate cases
consistently applied this rule for 100 years after the text of what is
now OCGA § 51-5-9 was enacted. Then, in 1964, the United States
54
Supreme Court held in New York Times that the states must apply
the constitutional standard of “actual malice”—meaning knowledge
of falsity or reckless disregard for truth—when a plaintiff in a
defamation case is a public official or public figure or when he is a
private figure seeking presumed or punitive damages related to a
defamatory statement about a matter of public concern. But outside
of those contexts—such as when a plaintiff is a private figure and
does not seek such damages—the “actual malice” standard in New
York Times does not apply.
In light of the history of OCGA § 51-5-9 (and considering the
federal constitutional law on defamation), we conclude that the text
of that statute requires a plaintiff, to overcome a conditional
privilege, to establish that the defendant used the privilege as a
pretense, such that the allegedly defamatory statement was not
made for one of the bona fide purposes listed in OCGA § 51-5-7 but
was instead made with “private malice,” meaning with ill will
toward the plaintiff or with an intent to injure him. This
understanding of OCGA § 51-5-9 is not altered by New York Times,
55
which had no effect on Georgia defamation law in cases brought by
private-figure plaintiffs involving allegedly defamatory statements
that do not involve matters of public concern. Thus, such Court of
Appeals cases that, after New York Times, determined that a
plaintiff can overcome a conditional-privilege defense only by
establishing the type of constitutional “actual malice” articulated in
New York Times—meaning knowledge of falsity or reckless
disregard for truth—applied the wrong legal standard.25 We
therefore overrule those cases.26
25 We note, however, that a showing of knowledge of falsity (one prong of
the constitutional “actual malice” standard) may often satisfy the standard of
“private malice” under Georgia law because traditionally, a plaintiff could
prove private malice by establishing that the defendant knew that his
statement was false. See, e.g., TOWNSHEND, supra, at § 245; Jordan, 91 Ga.
App. at 474. But as discussed above, a plaintiff can also prove private malice
by establishing that the defendant harbored feelings of ill will toward the
plaintiff, such that the private-malice standard is less demanding than the
constitutional “actual malice” standard. See, e.g., TOWNSHEND, supra, at § 245;
Van Gundy, 84 Ga. App. at 430.
26 See Melton v. Bow, 145 Ga. App. 272, 273 (243 SE2d 590) (1978);
Stewart, 153 Ga. App. at 638; Gardner, 155 Ga. App. at 604; Sherwood, 157
Ga. App. at 543; Meyer v. Ledford, 170 Ga. App. 245, 247 (316 SE2d 804) (1984);
Fiske v. Stockton, 171 Ga. App. 601, 603 (320 SE2d 590) (1984); Anderson v.
Housing Authority of Atlanta, 171 Ga. App. 841, 843 (321 SE2d 378) (1984);
DeBerry v. Knowles, 172 Ga. App. 101, 104 (321 SE2d 824) (1984); Clayton v.
Macon Telegraph Publishing Co., 173 Ga. App. 466, 466 (326 SE2d 789) (1985);
56
With that, we circle back to the Court of Appeals’s
determination in this case that Oskouei was required to establish by
clear and convincing evidence that Matthews acted with “actual
malice,” meaning that “Matthews knew that his statements were
false or that he made them with a reckless disregard for the truth,”
to overcome the conditional privilege set forth in OCGA § 51-5-7 (7).
Matthews, 369 Ga. App. at 575. As we explained above, that is not
the standard that applies when a plaintiff seeks to overcome a
conditional-privilege defense under Georgia law, unless the plaintiff
is a public official or public figure or unless he is a private figure
seeking presumed or punitive damages related to a defamatory
statement about a matter of public concern, such that the New York
Times “actual malice” standard would instead apply. 27 When only
Heard v. Neighbor Newspapers, Inc., 190 Ga. App. 756, 758 (380 SE2d 279)
(1989), reversed on other grounds by 259 Ga. 458 (383 SE2d 553) (1989); Smith
v. Vencare, Inc., 238 Ga. App. 621, 627 (519 SE2d 735) (1999); Cooper-Bridges,
268 Ga. App. at 77; Rabun, 273 Ga. App. at 316; Smith, 276 Ga. App. at 832-
834; Torrance v. Morris Publishing Group LLC, 281 Ga. App. 563, 572 (636
SE2d 740) (2006); Fine, 305 Ga. App. at 302-305; Murray, 345 Ga. App. at 287-
288; Neff, 346 Ga. App. at 525-530.
27 The parties do not expressly allege that Oskouei is a public figure or
57
Georgia law applies, a plaintiff seeking to overcome a conditional-
privilege defense must establish by a preponderance of the evidence
(the standard that generally applies to civil cases, see OCGA § 24-
14-3) that the defendant made the allegedly defamatory statements
with ill will toward the plaintiff or with an intent to injure him. See,
e.g., Lester, 51 Ga. at 120; Pearce, 72 Ga. at 244-246; Nicholson, 137
Ga. at 231. Because the Court of Appeals incorrectly imported the
constitutional “actual malice” standard into OCGA § 51-5-9 in this
case, we vacate the Court of Appeals’s opinion and remand the case
to that court for further proceedings consistent with this opinion.
Judgment vacated and case remanded. All the Justices concur,
except Peterson, P.J., who concurs except as to footnote 18.
that Matthews’s allegedly defamatory statements related to a matter of public
concern, and the trial court and the Court of Appeals did not address that issue.
58
MCMILLIAN, Justice, concurring.
Although I concur fully in the Court’s opinion, I write
separately to clarify why I believe we must vacate the Court of
Appeals’s judgment in this case and remand with direction for the
trial court to evaluate Matthews’s anti-SLAPP motion under the
correct standards, including on the threshold question of whether
Georgia defamation law or the federal New York Times standard
applies.
I agree wholly with the Court’s thorough analysis of Georgia
defamation law and how the New York Times “actual malice”
standard has been misapplied to defamation claims that are
governed solely by state law. I also agree that the first step in the
analysis of whether a plaintiff may prevail on his defamation claims
is to determine whether Georgia’s defamation law or federal
constitutional defamation law, as established under New York
Times, applies to his claims.28 See Gertz, 418 U.S. at 346, 349-350
28 Accord Op. at 41-48 (recognizing that the federal constitutional “actual
59
(IV) (acknowledging “actual malice” standard applies to a private-
figure plaintiff when the defamatory statement is about a matter of
public concern while recognizing that states may, without imposing
strict liability, separately define the standard of liability for
defamatory statements that injure the reputation of private
individuals and do not involve a matter of public concern); Zeh, 312
Ga. at 650-51 (1) (b).
However, no court, including this Court, has considered or
expressly determined whether the statements at issue here are the
type that would constitute statements of public concern, such that
the New York Times actual malice standard would apply. See
Matthews, 369 Ga. App. at 573-74 (addressing Matthews’s
statements in terms of comments made by counsel pursuant to
OCGA § 51-5-7 (7) but without analyzing whether his statements
would constitute statements of public concern under New York
Times). This Court did not do so because of the procedural posture
malice” requirement does not apply to defamation cases brought by private-
figure plaintiffs regarding statements that do not involve matters of public
concern).
60
of the case, in which the Court of Appeals analyzed the defamation
claim using the New York Times standard, and we granted certiorari
on the legal question of whether the “actual malice” standard applies
to overcome a defense of conditional privilege under OCGA § 51-5-7
(7), without specifically pointing the parties to this threshold issue.29
The parties and lower courts may not have focused on this threshold
question because it may not have seemed significant given that the
Court of Appeals precedent has, at times, conflated the New York
Times actual malice standard with Georgia’s private malice
standard.
Nonetheless, although the Court is correct that the “parties do
not expressly allege that Oskouei is a public figure or that
Matthews’s allegedly defamatory statements related to a matter of
public concern,” Op. at 57-58 n.27, it appears that Matthews made
arguments below that could support application of the New York
29 The question presented on certiorari was: “To overcome a defense of
conditional privilege under OCGA § 51-5-7 (7), must a plaintiff show that the
defendant asserting the privilege acted with ‘actual malice’ regardless of
whether the [plaintiff] is a public figure?”
61
Times standard. Matthews asserted in his anti-SLAPP motion that
the alleged defamatory statements were a matter of “public
interest”:
Oskouei’s lawsuit lacks justification because any
statements allegedly made by Matthews about Oskouei
were necessarily made in connection with Matthews’s
legal work and/or with matters of public interest, and
were thus privileged speech.
Matthews also noted in his motion that he “has twice been called to
testify before the Georgia House Judiciary Committee on matters of
public interest pertaining to the ‘phantom damages’ created by lien
doctors and their business model.” Matthews also argued that the
types of “medical billing fraud” at issue in this case “are clearly
matters of public interest and reasonable grounds for free speech”
and are “directly analogous to the conduct of Martin Shkreli, who
was the subject of widespread media coverage.”
Thus, it remains an open question of whether the alleged
defamatory statements were of public concern, such that the New
York Times standard could apply. Because no court has yet decided
this key threshold issue, the appropriate disposition is to vacate the
62
judgment of the Court of Appeals with direction to remand the case
to the trial court for consideration of whether Oskouei has
established a reasonable probability of prevailing on his claims,
under the standards enunciated by the Court, including the
threshold question of whether state defamation law or the New York
Times standard applies.30 See, e.g., Zeh, 312 Ga. at 676 (5) n.26
(explaining that, while “all public officials may be public figures,
even though all public figures are not public officials[,]” that
question was not posed on certiorari and leaving it “to the trial court
to decide in the first instance on remand whether the ACLU claims
that Zeh is a ‘public figure plaintiff’ as that term is used in OCGA §
9-11-11.1 (b) (2)” (punctuation omitted)).
30 Even without specific direction by the Court, the parties could revisit
this issue on remand, and the lower courts would not be precluded by law of
the case because neither this Court nor the Court of Appeals has explicitly
ruled on this threshold question. See Currid v. DeKalb State Court Probation
Dept., 285 Ga. 184, 186 n.5 (674 SE2d 894) (2009) (explaining that law of the
case doctrine applies only to issues expressly ruled on previously and does not
apply to an “implied” ruling on an issue not addressed in the previous decision).
See generally OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the
Court of Appeals in a case shall be binding in all subsequent proceedings in
that case in the lower court and in the Supreme Court or the Court of Appeals
as the case may be”).
63
---
321 Ga. 1
FINAL COPY
S24G0335. OSKOUEI v. MATTHEWS.
WARREN, Justice.
Dr. Armin Oskouei, the owner of two medical facilities, filed a
lawsuit alleging that Zachary Matthews, a defense attorney who
represented clients in cases that tangentially involved the medical
facilities, made defamatory statements suggesting that Oskouei
performed “illegal” surgeries, among other things. Matthews moved
to strike the defamation lawsuit pursuant to Georgia’s anti-
Strategic Lawsuits Against Public Participation (“anti-SLAPP”)
statute, OCGA § 9-11-11.1, which allows a trial court to strike
certain claims based on a person’s right of petition or free speech
when there is no “probability that the nonmoving party will prevail
on the claim.” OCGA § 9-11-11.1 (b) (1). The trial court denied the
motion to strike, but the Court of Appeals reversed that ruling in
Matthews v. Oskouei, 369 Ga. App. 568 (894 SE2d 141) (2023). The
Court of Appeals held that Oskouei could not establish a probability
of prevailing on his defamation claims because he had not overcome
Matthews’s defense of conditional privilege. Id. at 573-575. In this
respect, the court determined that Oskouei had not established that
Matthews acted with “actual malice,” such that “Matthews knew
that his statements were false or that he made them with a reckless
disregard for the truth.” Id. at 575.
We granted Oskouei’s petition for certiorari to address an issue
of first impression in this Court: whether a plaintiff is required to
show that the defendant acted with “actual malice” (i.e., knowledge
of falsity or reckless disregard for the truth) to defeat his defense of
conditional privilege. We conclude that the “actual malice” standard
does not apply in such cases. As we explain below, under OCGA §
51-5-9, to overcome a conditional privilege, a plaintiff must show
that the defendant used the privilege “merely as a cloak for venting
private malice and not bona fide in promotion of the object for which
the privilege is granted.” And in light of the legal and historical
context of the text of OCGA § 51-5-9—which was originally codified
in 1860—we conclude that a plaintiff meets his burden under that
2
statute by establishing that the defendant’s claim of privilege is a
sham and that he made the allegedly defamatory statement with ill
will toward the plaintiff or with an intent to injure him.
That is not the “actual malice” standard that the Court of
Appeals applied in this case. It instead applied the “actual malice”
standard the United States Supreme Court first announced in New
York Times Co. v. Sullivan, 376 U.S. 254 (84 SCt 710, 11 LE2d 686)
(1964)—a constitutional standard that applies only in certain
defamation cases. In particular, the “actual malice” standard does
not pertain to defamation cases brought by private-figure plaintiffs
relating to statements that do not involve matters of public concern.
Because the Court of Appeals incorrectly imported the “actual
malice” standard into OCGA § 51-5-9 in this case, we vacate the
Court of Appeals’s opinion and remand the case to that court for
further proceedings consistent with this opinion. We also overrule
several other Court of Appeals cases holding that a plaintiff must
establish “actual malice” under New York Times to overcome a
conditional-privilege defense under OCGA § 51-5-9.
3
1. Background and Procedural History
(a) Oskouei’s Defamation Claims
As summarized by the Court of Appeals:
The record reflects that Oskouei is the sole owner of
a medical practice, Ortho Sport & Spine Physicians, LLC
(“Ortho Sport”), and the practice’s affiliated ambulatory
surgery center, Orthopedic Surgery Center of Sandy
Springs (“the surgery center”). In January 2021, the
[Georgia Department of Community Health (“the
Department”)] issued a cease and desist order,
prohibiting the surgery center from performing
orthopedic surgeries because it found that Oskouei did
not have the requisite board certification in orthopedic
surgery to justify the center’s exemption from the
certificate of need program.
The surgery center filed a timely administrative
appeal of the cease and desist order, but it was affirmed
by both an administrative hearing officer and the agency
commissioner. In November 2022, after the surgery
center petitioned the superior court for judicial review of
the final agency order, the court entered a consent order,
granting the petition and vacating the cease and desist
order.
Matthews is a defense attorney who was
representing clients adverse to parties that had been
treated at Ortho Sport and the surgery center. As a result
of his investigation and discovery efforts regarding the
medical bills of adversarial parties in his clients’ cases,
Matthews became aware of the cease and desist order,
and developed evidence that the surgery center was still
performing orthopedic surgeries despite the order.
In March 2021, Matthews sent an e-mail to his
4
opposing counsel, David Byrd, to discuss settlement of a
pending suit brought by Byrd’s client. Matthews had
previously sent Byrd a copy of the cease and desist letter.
In the e-mail to Byrd, Matthews wrote: “As I advised,
Ortho Sport & Spine have [sic] been sent a cease-and-
desist order for illegally operating what appears to be the
very same facility at which your client had treatment.
Some or all of those bills . . . appear to have been illegally
issued. . . . In the case of Ortho Sport, Dr. Oskouei made
misrepresentations of his board certification to even
operate the [surgery center] in the first place.
Accordingly, it should never have been approved, and the
[Department] is presently taking steps to rectify that. At
a minimum[,] this situation raises reasonable questions
about whether the [surgery center’s] facility fee liens
would be collectible, as they appear to arise out of fraud.”
(Emphasis in original.)
In her March 2022 affidavit, Stella Adhisurya,
Matthews’s opposing counsel in another such claim
against one of his clients, recounted certain statements
Matthews made during a May 2021 phone call regarding
a discovery dispute. Specifically, Adhisurya recalled that
Matthews told her Oskouei was performing illegal
surgeries; equated Oskouei to a “back alley” surgeon or
one who was “doing surgeries in a hotel”; referred to
Oskouei as “bad news”; and cautioned her against sending
clients to Oskouei for treatment.
Matthews, 369 Ga. App. at 568-569.
In January 2022, Oskouei filed a lawsuit against Matthews in
Fulton County State Court, alleging claims of slander and libel, as
well as slander per se and libel per se, such that damages were
5
presumed, see OCGA § 51-5-4 (b), with respect to the statements he
made to Byrd and Adhisurya. The complaint also sought
compensatory and punitive damages, attorney fees, and costs of
litigation. In March 2022, Matthews filed a motion to strike
Oskouei’s complaint under the anti-SLAPP statute, which required
Matthews to make a threshold showing that the challenged claim is
one “arising from” protected activity; if so, Oskouei would then be
required to establish that there was “a probability that [he] will
prevail on the claim.” OCGA § 9-11-11.1 (b) (1).1 Matthews
contended, among other things, that Oskouei could not establish a
probability that he would prevail on his defamation claims because
the allegedly defamatory statements were conditionally privileged.
1 OCGA § 9-11-11.1 (b) (1) says:
A claim for relief against a person or entity arising from any
act of such person or entity which could reasonably be construed
as an act in furtherance of the person’s or entity’s right of petition
or free speech under the Constitution of the United States or the
Constitution of the State of Georgia in connection with an issue of
public interest or concern shall be subject to a motion to strike
unless the court determines that the nonmoving party has
established that there is a probability that the nonmoving party
will prevail on the claim.
6
In his responses to the motion to strike, Oskouei argued, among
other things, that the statements were not conditionally privileged
because Matthews lacked a good-faith belief in the truth of the
statements and because the statements were “malicious.”
In November 2022, the trial court issued an order denying
Matthews’s anti-SLAPP motion to strike. The court concluded under
the first part of the anti-SLAPP analysis that Matthews had
established that Oskouei’s defamation claims arose from protected
activity under OCGA § 9-11-11.1 (c) (2).2 And under the second part
of the analysis, the court determined that Oskouei had established
a probability of prevailing on his defamation claims. As pertinent to
the issue of whether the allegedly defamatory statements were
conditionally privileged, the trial court noted that the cease and
desist order said that Oskouei could appeal the Department’s
2 OCGA § 9-11-11.1 (c) (2) says that “the term ‘act in furtherance of the
person’s or entity’s right of petition or free speech under the Constitution of
the United States or the Constitution of the State of Georgia in connection with
an issue of public interest or concern,’” as it is used in OCGA § 9-11-11.1 (b),
includes “[a]ny written or oral statement or writing or petition made in
connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law.”
7
findings and then determined that “a reasonable jury could infer
that the findings were not final and therefore [Matthews] did not
have a good faith basis to make the alleged statements.” The court
also concluded that the question of whether the statements were
privileged “is within the province of the jury.”
(b) The Court of Appeals’s Decision
Matthews appealed, and in October 2023, the Court of Appeals
reversed the denial of the anti-SLAPP motion to strike. See
Matthews, 369 Ga. App. at 576. The Court of Appeals noted that it
would not review the trial court’s finding as to the first part of the
analysis of an anti-SLAPP motion—that the allegedly defamatory
statements arose from protected activity—because Oskouei had not
filed a cross-appeal challenging that finding. See id. at 571. The
court accordingly turned to the second part of the test: whether
Oskouei had established a probability of prevailing on his
defamation claims. See id. at 572.
In this respect, the Court of Appeals set forth the elements of
a defamation claim under Georgia law:
8
(1) a false and defamatory statement concerning the
plaintiff; (2) an unprivileged communication to a third
party; (3) fault by the defendant amounting at least to
negligence; and (4) special harm or the actionability of the
statement irrespective of special harm.
Matthews, 369 Ga. App. at 572 (citation, punctuation and emphasis
omitted). The court pretermitted whether Oskouei had established
the first, third, and fourth elements and concluded that he had not
shown a probability of prevailing on his claims because Matthews’s
allegedly defamatory statements were conditionally privileged as a
matter of law. See id. at 568. Noting that although “the issue of
conditional privilege is typically a question for the jury,” the court
also stated that privilege can apply “as a matter of law in clear and
certain cases.” Id. at 573. It then determined that Matthews’s
statements to Byrd and Adhisurya fell within the ambit of OCGA §
51-5-7 (7), which deems conditionally privileged “[c]omments of
counsel, fairly made, on the circumstances of a case in which he or
she is involved and on the conduct of the parties in connection
therewith,” because the statements “were made in the course of
pending litigation, and concerned the relative settlement values of
9
the claims of opposing counsels’ clients.” Id.
The Court of Appeals outlined the elements Matthews was
required to establish to show that the allegedly defamatory
statements were conditionally privileged: that “‘(a) [he] acted in good
faith; (b) in connection with an interest to be upheld; (c) the
statement was properly limited in its scope and occasion; and (d)
publication was made to proper persons.’” Matthews, 369 Ga. App.
at 574 (citation omitted). After reciting that “‘[s]tatements are
deemed to have not been made in good faith, but rather with malice,
if the evidence shows in a clear and convincing manner that a
defendant in fact entertained serious doubts as to the truth of his
statements,’” the court determined that Matthews made the
statements in good faith because there was no evidence of any such
doubts; rather, Matthews relied on the cease and desist order in
making the statements. Id. (citation omitted). The court also
concluded, as a matter of law, that Matthews had established the
other three elements of conditional privilege, such that he had
“made a prima facie showing that the statements at issue were
10
conditionally privileged.” Id. at 574-575.
The Court of Appeals then said that “[t]o defeat Matthews’s
privilege defense, Oskouei bears the burden to show that Matthews
acted with actual malice,” Matthews, 369 Ga. App. at 575, citing its
own precedent and OCGA § 51-5-9, which says, “In every case of
privileged communications, if the privilege is used merely as a cloak
for venting private malice and not bona fide in promotion of the
object for which the privilege is granted, the party defamed shall
have a right of action.” The court stated that Oskouei could meet
this burden by establishing by clear and convincing evidence that
“Matthews knew that his statements were false or that he made
them with a reckless disregard for the truth.” Id. The court
determined that Oskouei had not pointed to any evidence that
Matthews knew at the time he made the statements that Oskouei’s
credentials were unblemished or that the surgery center was not
illegally performing surgeries after the cease and desist order
issued. See id. Concluding that Oskouei had thus failed to show
actual malice to defeat Matthews’s defense of conditional privilege,
11
the Court of Appeals held that the trial court erred by finding that
there was a probability that Oskouei would prevail on his
defamation claims, reversed the denial of Matthews’s anti-SLAPP
motion to strike, and remanded the case to the trial court for it to
consider Matthews’s request for attorney fees and litigation
expenses. See id. at 576.
Oskouei filed a petition for certiorari in this Court, arguing,
among other things, that the Court of Appeals erred by requiring
him to show that Matthews acted with “actual malice” as defined in
New York Times to defeat Matthews’s conditional-privilege defense
because OCGA § 51-5-9 requires only a showing of “private malice.”
We granted the petition to address that issue.3
3 We did not grant Oskouei’s petition for certiorari to address the Court
of Appeals’s conclusion that Matthews’s allegedly defamatory statements fell
within the type of communication set forth in OCGA § 51-5-7 (7), whether the
test set forth above for establishing a conditional privilege applies to OCGA §
51-5-7 (7), or whether the Court of Appeals erred by determining that
Matthews had satisfied that test, such that he made a prima facie showing
that his statements were conditionally privileged. We therefore do not address
those issues.
We note that the Atlanta Journal-Constitution, WSB-TV, and the
Georgia First Amendment Foundation jointly filed an amicus curiae brief in
this case, arguing that the Court of Appeals was correct in its assessment of
12
2. The Undisputed Legal Principles that Apply to this Case
The parties do not dispute the legal framework that applies to
the analysis of Matthews’s anti-SLAPP motion to strike, the well-
settled elements of a claim for defamation, or the elements required
for a defendant to establish that an allegedly defamatory statement
is conditionally privileged. We therefore briefly set forth these
undisputed legal principles before addressing the issue at the crux
of this case: what a plaintiff must establish to defeat a showing of
conditional privilege under OCGA § 51-5-9.
(a) The Analysis of an Anti-SLAPP Motion to Strike
As discussed above, the analysis of an anti-SLAPP motion to
strike involves two steps. See OCGA § 9-11-11.1 (b) (1). See also
American Civil Liberties Union, Inc. v. Zeh, 312 Ga. 647, 650 (864
SE2d 422) (2021); Wilkes & McHugh, P.A. v. LTC Consulting, L.P.,
306 Ga. 252, 261 (830 SE2d 119) (2019). First, the court must
determine whether the party filing the anti-SLAPP motion (here,
the “actual malice” required to overcome Matthews’s conditional-privilege
defense. We thank them for their amicus brief.
13
Matthews) “has made a threshold showing that the challenged claim
is one arising from protected activity.” Zeh, 312 Ga. at 650 (citation
and punctuation omitted). If so, the court must “decide whether the
plaintiff has established that there is a probability that [he] will
prevail on the claim.” Id. (citation and punctuation omitted).4
With respect to the first step, the trial court concluded here
that Oskouei’s defamation claims arose from protected activity
under OCGA § 9-11-11.1 (c) (2), and as noted above, that conclusion
is not at issue in this appeal. See Wilkes, 306 Ga. at 262 (explaining
that a challenged claim arises from protected activity when it could
4 To make such a showing, “the plaintiff must demonstrate that the
complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by
the plaintiff is credited.” Zeh, 312 Ga. at 653 (citations and punctuation
omitted).
For purposes of this inquiry, the trial court considers the pleadings
and evidentiary submissions of both the plaintiff and the
defendant; though the court does not weigh the credibility or
comparative probative strength of competing evidence, it should
grant the motion if, as a matter of law, the defendant’s evidence
supporting the motion defeats the plaintiff’s attempt to establish
evidentiary support for the claim. In making this assessment[,] it
is the court’s responsibility to accept as true the evidence favorable
to the plaintiff. In this regard, the merits of the plaintiff’s claim
are evaluated using a summary-judgment-like procedure at an
early stage of the litigation.
Id. (citation and punctuation omitted).
14
reasonably be construed as fitting within one of the categories set
forth in OCGA § 9-11-11.1 (c)). Thus, the dispositive issue on appeal
before this Court is whether Oskouei has met his burden of
establishing under the second step of the anti-SLAPP analysis that
there is a probability that he will prevail on his defamation claims.
(b) The Elements of a Defamation Claim
In Georgia, a claim for defamation has four elements:
(1) a false and defamatory statement concerning the
plaintiff; (2) an unprivileged communication to a third
party; (3) fault by the defendant amounting at least to
negligence; and (4) special harm or the actionability of the
statement irrespective of special harm.
Zeh, 312 Ga. at 650 (citation and punctuation omitted). As discussed
above, the Court of Appeals determined that Oskouei could not
establish a probability of prevailing on his defamation claims
because he could not prove the second element: an unprivileged
communication to a third party. See Matthews, 369 Ga. App. at 570.
Georgia law recognizes two kinds of privileged
15
communications: absolute and conditional.5 Absolutely privileged
communications, such as allegations contained in pleadings filed in
court, cannot form the basis for a defamation action. See OCGA §
51-5-8 (providing in pertinent part that “[a]ll charges, allegations,
and averments contained in regular pleadings filed in a court . . . ,
which are pertinent and material to the relief sought, whether
legally sufficient to obtain it or not, are privileged”). See also, e.g.,
Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 131 (670 SE2d
818) (2008) (explaining that an absolutely privileged statement
“‘entirely free[s] the [defendant] from any liability to the person
injured by the words or the publication’”) (citation omitted).
By contrast, when a defendant makes a prima facie showing
that an allegedly defamatory statement is conditionally privileged,
the burden shifts to the plaintiff to make an additional showing of
5 Historically, conditional privileges have also been referred to as
“qualified privileges,” and those terms have been used interchangeably in
Georgia decisional law. See, e.g., John Townshend, A Treatise on the Wrongs
Called Slander and Libel, and on the Remedy by Civil Action for Those Wrongs,
Together with a Chapter on Malicious Prosecution § 240 n.1 (4th ed. 1890);
Murray v. Community Health Systems Professional Corp., 345 Ga. App. 279,
286 (811 SE2d 531) (2018).
16
proof to overcome the privilege defense. See Saye, 295 Ga. App. at
131. In this respect, OCGA § 51-5-7 sets forth the types of
communications that are conditionally privileged.6 Once the
defendant establishes that the allegedly defamatory statement falls
within a category of communications listed in OCGA § 51-5-7, he
bears the burden of showing “‘good faith, an interest to be upheld, a
6 OCGA § 51-5-7 says:
The following communications are deemed privileged:
(1) Statements made in good faith in the performance
of a public duty;
(2) Statements made in good faith in the performance
of a legal or moral private duty;
(3) Statements made with a good faith intent on the
part of the speaker to protect his or her interest in a matter
in which it is concerned;
(4) Statements made in good faith as part of an act in
furtherance of the person’s or entity’s right of petition or free
speech under the Constitution of the United States or the
Constitution of the State of Georgia in connection with an
issue of public interest or concern, as defined in subsection
(c) of Code Section 9-11-11.1;
(5) Fair and honest reports of the proceedings of
legislative or judicial bodies;
(6) Fair and honest reports of court proceedings;
(7) Comments of counsel, fairly made, on the
circumstances of a case in which he or she is involved and on
the conduct of the parties in connection therewith;
(8) Truthful reports of information received from any
arresting officer or police authorities; and
(9) Comments upon the acts of public men or public
women in their public capacity and with reference thereto.
17
statement properly limited in its scope, a proper occasion, and
publication to proper persons.’” Zeh, 312 Ga. at 661 n.16 (citation
omitted). The plaintiff then bears the burden of defeating the
defendant’s defense of conditional privilege. See, e.g., Saye, 295 Ga.
App. at 133. The plaintiff can do so by proving that “the privilege is
used merely as a cloak for venting private malice and not bona fide
in promotion of the object for which the privilege is granted.” OCGA
§ 51-5-9.
3. A Review of the History and Context of OCGA § 51-5-9 Shows
That the “Private Malice” Referenced in That Statute Is Derived
From Legal Principles Developed Before, and Apart From, the New
York Times “Actual Malice” Standard
The question we must answer in this case is whether the
“private malice” referenced in OCGA § 51-5-9 signifies the “actual
malice” defined by the United States Supreme Court in New York
Times—that is, knowledge of falsity or reckless disregard for truth.
The short answer is no.
The longer answer involves analysis of the original public
18
meaning of the phrase “private malice” as it is used in OCGA § 51-
5-9. In considering the meaning of OCGA § 51-5-9, “‘we must afford
the statutory text its plain and ordinary meaning, we must view the
statutory text in the context in which it appears, and we must read
the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.’” Seals v. State, 311
Ga. 739, 740 (860 SE2d 419) (2021) (citation omitted), disapproved
on other grounds by Gonzales v. State, 315 Ga. 661 (884 SE2d 339)
(2023). “The ordinary public meaning of statutory text that matters
is the meaning the statutory text had at the time it was enacted.”
Id. (considering the original public meaning of a statute). Cf. Olevik
v. State, 302 Ga. 228, 235 (806 SE2d 505) (2017) (explaining that
“there are few principles of Georgia law more venerable than the
fundamental principle that a constitutional provision means today
what it meant at the time that it was enacted”). Determining this
meaning requires us to consider the text of the statute in the context
in which it was originally enacted. See Seals, 311 Ga. at 740. “‘The
primary determinant of a text’s meaning is its context, which
19
includes the structure and history of the text and the broader
context in which that text was enacted, including statutory and
decisional law that forms the legal background of the written text.’”
Id. (citation omitted).
The text of what is now OCGA § 51-5-9 was originally enacted
as part of Georgia’s first Code in 1860. See Georgia Code of 1860 §
2923 (effective Jan. 1, 1863). Accordingly, in determining the
original public meaning of OCGA § 51-5-9, we look to the text of the
statute in the context of its first enactment in 1860. See Seals, 311
Ga. at 740. Our search for the meaning of statutory text “always
begins with the text itself.” Sons of Confederate Veterans v. Henry
County Bd. of Commrs., 315 Ga. 39, 47 (880 SE2d 168) (2022)
(conducting an original public meaning analysis of text that was
carried forward from the Georgia Constitution of 1798). Although we
typically focus on the ordinary meaning the text had at the time it
was enacted, see, e.g., Seals, 311 Ga. at 740, as explained more
below, in this case, it is apparent that “private malice” is a legal term
of art that around the time the text of the first version of OCGA §
20
51-5-9 was codified in 1860, was often used in the legal context of
explaining what a plaintiff must show to overcome a defendant’s
defense of conditional privilege in a defamation case. See, e.g., John
Townshend, A Treatise on the Wrongs Called Slander and Libel, and
on the Remedy by Civil Action for Those Wrongs, Together with a
Chapter on Malicious Prosecution § 225 (4th ed. 1890)
(“Townshend”) (explaining that a plaintiff can defeat a conditional-
privilege defense in a defamation case by showing that the
defendant “avail[ed] himself of his situation to gratify private malice
by uttering slanderous expressions”).7 So to determine the meaning
7 As explained in footnote 11 below, although the legal showing necessary
to defeat a defense of conditional privilege was traditionally described using
the term of art “private malice,” other terms that encompassed the same
meaning, including “malice,” “actual malice,” and “express malice,” were also
used.
We note that we often look to contemporaneous dictionaries from around
the time the statutory text was adopted to determine the ordinary meaning of
that text—although “[d]ictionaries cannot be the definitive source of ordinary
meaning in questions of textual interpretation because they are acontextual,
and context is a critical determinant of meaning.” State v. SASS Group, LLC,
315 Ga. 893, 898-899 (885 SE2d 761) (2023). The term of art “private malice”
was not included in the earliest version of Black’s Law Dictionary. See Henry
Campbell Black, A Dictionary of Law (1891). But dictionaries defining the
ordinary meaning of “private” and “malice” around the time the first version of
OCGA § 51-5-9 was enacted comport with the traditional legal meaning that
was ascribed to the term of art “private malice,” as explained further below.
21
of the term “private malice” in the earliest version of OCGA § 51-5-
9, we look to the legal usage of that term in the context in which the
statute was first enacted in 1860.
Generally, a key aspect in assessing the context in which a
statute was enacted is the body of pre-enactment decisions of this
Court interpreting the meaning of certain text that the drafters of
the statute chose to use. Cf. Olevik, 302 Ga. at 236. But prior to 1860,
there was little Georgia appellate decisional law about civil
defamation principles, let alone conditional privilege to claims of
defamation—likely because this Court was established only 15 years
earlier, see Ga. L. 1845, p. 18, and few decisions were reported at
that time. Indeed, the parties have not pointed us to, and we have
not found, any Georgia decisional law prior to 1860 that provides
significant clues about the meaning of the “private malice” required
to defeat a conditional privilege.
See, e.g., Noah Webster, An American Dictionary of the English Language,
804, 1039 (1865) (defining “[p]rivate” in pertinent part as “[b]elonging to, or
concerning, an individual person” and defining “[m]alice” in pertinent part as
“ill-will” or “a disposition to injure others”).
22
Thus, we look for guidance to other legal authority that existed
around the time OCGA § 51-5-9 was enacted in 1860 that
interpreted the term of art “private malice” within the context of
overcoming a conditional-privilege defense to a defamation claim.
Cf. Olevik, 302 Ga. at 236 (explaining that constitutions and
statutes “‘are properly to be expounded in the light of conditions
existing at the time of their adoption’”) (citation omitted). In so
doing, we look to the body of decisional law regarding conditional
privileges that developed in England around the nineteenth century
(around the time OCGA § 51-5-9 was codified in Georgia in 1860),8
cases from American states from around that time that carried
forward the legal principles set forth in those English defamation
8 It appears that although certain civil defamation principles developed
at English common law during the fifteenth and sixteenth centuries, the
doctrine of conditional privileges was not meaningfully developed until around
the nineteenth century. See generally C.G. Addison et al., Wrongs and Their
Remedies: A Treatise on the Law of Torts, Chapter XVII (4th ed. 1882)
(“Addison”). Because the English common law of defamation as it existed on
May 14, 1776—which was adopted by our General Assembly except to the
extent that it was displaced by our own constitutional or statutory law, see
OCGA § 1-1-10 (c) (1)—did not comprise a body of law regarding conditional
privileges, it offers little guidance in determining the meaning of OCGA § 51-
5-9.
23
decisions, and prominent nineteenth century treatises describing
and analyzing the legal doctrine of conditional privilege as it applied
in both England and in American states in the early nineteenth
century. Although such authority is not binding on this Court, it can
be persuasive evidence of the original public meaning of OCGA § 51-
5-9—the meaning that the drafters of the first version of OCGA §
51-5-9 understood that provision to have when it was originally
codified in 1860—especially to the extent that authority used and
interpreted language similar to (and within the same legal context
of) the text that the drafters of the first version of OCGA § 51-5-9
chose to use in that statute. Cf. Elliott v. State, 305 Ga. 179, 193-195
(824 SE2d 265) (2019) (examining the backdrop of English common
law and early American decisional law in determining the meaning
of a provision in the Georgia Constitution of 1877).
(a) The Legal Backdrop Against Which OCGA § 51-5-9 Was
Enacted
(i) Malice in Law and Malice in Fact
In England and in the American states around the early
24
nineteenth century, defamation was a strict-liability tort that did
not require proof of falsity, fault, or actual damages. See Mathis v.
Cannon, 276 Ga. 16, 20 (573 SE2d 376) (2002). See also C.G. Addison
et al., Wrongs and Their Remedies: A Treatise on the Law of Torts
§§ 1087-1089 (4th ed. 1882) (“Addison”). “[T]he law implie[d] malice
from the very fact of the publication of the defamatory matter.”
Addison, supra, at § 1090. This sort of legal “malice” (or “malice in
law”) meant “a wrongful act, done intentionally, without just cause
or excuse,” and was distinct from “malice in fact,” which in
accordance with the general understanding of the term “malice,”
meant “ill will against a person,” Bromage v. Prosser, 107 Eng. Rep.
1051, 1054 (1825), or an intent “to injure,” Hart v. Reed, 40 Ky. 166,
169 (1840). See also, e.g., Addison, supra, at § 1090; TOWNSHEND,
supra, at §§ 87, 209. Because legal malice was presumed in
defamation cases, a defendant was strictly liable for publishing a
defamatory statement—even in the absence of “malice in fact” (that
is, “ill will against a person” or an intent “to injure”)—unless he
could establish as his defense that the statement was true or that a
25
privilege applied. See Addison, supra, at § 1089.9
(ii) Privileges Applicable to Claims of Defamation
Early nineteenth century English and American law
recognized absolute privileges and conditional privileges. See
Townshend, supra, at § 209. The latter applied when an allegedly
defamatory statement was considered reasonably necessary to
further a particular societal interest. See Addison, supra, at § 1091
(noting that a privileged communication “is fairly made by one
person to another in the discharge of some public or private duty,
whether legal, moral, or social, or in the conduct of his own affairs
in matters where his interest is concerned”). In this respect,
conditional privileges attached to many sorts of “occasion[s],” or
types of communications, so long as the statement was made for the
protection of one’s own legitimate interests or the legitimate
interests of another person. Townshend, supra, at §§ 208-209. See
9 The truth of an allegedly defamatory statement was a complete defense
in England and the American states by the nineteenth century and remains so
under Georgia law today. See, e.g., Addison, supra, at § 1089; Dellinger-Allen
v. O’Brien, 355 Ga. App. 811, 817 (846 SE2d 124) (2020).
26
also, e.g., Dunn v. Winters, 21 Tenn. 512, 513 (1841).10
A conditional privilege prevented the inference of legal malice
and afforded the defendant a “qualified defen[s]e.” Toogood v.
Spyring, 149 Eng. Rep. 1044, 1050 (1834). See also, e.g., Lewis v.
Chapman, 16 N.Y. 369, 373 (1857). In this sense, if a defendant
established that an allegedly defamatory statement was
conditionally privileged, the presumption of legal malice was
rebutted, such that the conditional-privilege defense constituted an
exception to the general rule that malice was implied in every
defamatory publication. See Townshend, supra, at § 209.
A plaintiff could defeat a defense of conditional privilege,
however, by establishing that the defendant acted with malice in
fact when he made the allegedly defamatory statement. See
Toogood, 149 Eng. Rep. at 1050 (explaining that the “qualified
10 As pertinent to the circumstances in this case, we note that around the
nineteenth century in England and the American states, one such “occasion”
to which a conditional privilege applied included statements made by counsel
that were related to the circumstances of a pending legal proceeding. See
Townshend, supra, at § 225 (explaining that statements made by counsel “that
he may reasonably believe to be necessary for the successful maintenance of
his action or defense” were conditionally privileged).
27
defen[s]e” provided by a conditional privilege “depend[ed] upon the
absence of actual malice”); Townshend, supra, at § 209 (noting that
a conditional privilege could be “destroy[ed]” if the plaintiff “prove[d]
that there was malice in fact”). As mentioned above, a showing of
“malice in fact” generally required a showing of something like “ill
will” or “an intent to injure.” Addison, supra, at § 1090; Townshend,
supra, at § 209.11 Such a showing by the plaintiff established that
the defendant’s assertion of conditional privilege (i.e., that he made
the allegedly defamatory statement with the bona fide intent of
protecting a legitimate societal interest) was a pretense to cover up
his true motive in making the statement: an intent to injure the
11 Notably, in England and the United States around the nineteenth
century, the “malice in fact” that was required to defeat a conditional privilege
was described using multiple terms, such as “malice,” “actual malice,” “express
malice,” and “private malice.” See, e.g., Addison, supra, at § 1091 (noting that
a conditional privilege bars recovery “in the absence of express malice”); id. at
§ 1091 (l) (noting that a communication is conditionally privileged “in the
absence of malice or bad faith”); id. at § 1103 (explaining that “actual malice”
must be shown to destroy a conditional privilege “in the shape of proof that the
defendant was not actuated by a justifiable motive, but by some evil intention
towards the plaintiff”); Townshend, supra, at § 209 n.1 (explaining that
“malice” defeats a conditional privilege); id. at § 225 (noting that the privilege
does not apply when the defendant “avail[s] himself of his situation to gratify
private malice by uttering slanderous expressions”).
28
plaintiff. See, e.g., Wakefield v. Smithwick, 49 N.C. 327, 330 (1857)
(explaining that to defeat a conditional privilege, “the burden is
upon the plaintiff to prove that [the allegedly defamatory statement]
was not made bona fide in consequence of such relation, but out of
malice, and that the existence of such relation was used as a mere
cover for [the defendant’s] malignant designs”) (emphasis in
original); Gilpin v. Fowler, 156 Eng. Rep. 263, 267-268 (1854)
(holding that there was evidence of malice to defeat a conditional
privilege where the defendant, a parson who oversaw a school,
distributed a letter to his parishioners containing defamatory
statements about a schoolmaster at a rival school under the pretext
that the defendant was acting in the interests of his parishioners).
Specifically, a plaintiff in early nineteenth century England
and the American states could establish that the defendant acted
with ill will or an intent to injure, such that his claim of conditional
privilege was a pretext, by offering evidence of the defendant’s
improper motive in making the statement. See Townshend, supra,
at § 245. In determining whether the defendant’s motive was to
29
protect a legitimate interest (and thus bona fide) or not (and thus a
pretense to hide his true motive of malice), courts generally
considered all of the circumstances in a case, including for instance,
evidence showing that the allegedly defamatory statement “was
false within the knowledge of the publisher; or . . . showing a bad
motive in making the publication, as that it was made more publicly
than was necessary to protect the interests of the parties concerned,
or that it contained matter not relevant to the occasion, or that the
publisher entertained ill-will toward the person whom the
publication concerned.” Id. Whether a plaintiff had established
malice to defeat a defense of conditional privilege was generally a
question for the jury. See, e.g., Wakefield, 49 N.C. at 331; Gilpin, 156
Eng. Rep. at 268.
In sum, the early nineteenth century English and American
law cited above recognized a conditional privilege for statements
made with a bona fide view to protect a legitimate societal or
personal interest. But a plaintiff could defeat such a defense by
showing that the defendant used the privilege as a pretense to hide
30
his true motive of malice. To that end, if the plaintiff could establish
that the defendant made the allegedly defamatory statement with
ill will or an intent to injure the plaintiff—rather than with the
honest purpose of promoting a legitimate interest—the privilege
was lost.12
12 In 1845, the United States Supreme Court reiterated these principles
in a defamation case in which the plaintiff, who held the office of collector of
customs, alleged that the defendants made defamatory statements about him
to the president and to other public officials. See White v. Nicholls, 44 U.S. 266,
267-278 (11 LE 591) (1845). Citing nineteenth century English cases, the Court
explained that a conditionally privileged statement meant “‘that the occasion
of making it rebuts the prima facie inference of malice arising from the
publication of matter prejudicial to the character of the plaintiff, and throws
upon him the onus of proving malice in fact.’” Id. at 287 (citation omitted;
emphasis in original). In this respect, the Court concluded that to defeat a
conditional privilege, a plaintiff bears the burden of showing that “express
malice” was “the true motive” of the defendant’s conduct. Id. at 291. The
plaintiff could make such a showing, the Court held, by establishing “falsehood
and the absence of probable cause.” Id. Concluding that the trial court had
erroneously charged the jury in several respects as to these principles and that
the issues of whether a conditional privilege existed and whether the plaintiff
had proved malice were for the jury, the Court remanded the case for another
trial. See id. at 291-292. We also note that more than 100 years later, the Court
explained, consistent with its decision in White, that “long before New York
Times was decided,” conditional privileges protected a publisher of an allegedly
defamatory statement from liability “unless the publication was made with
malice,” which “depended upon a showing that the defendant acted with
improper motive.” Herbert v. Lando, 441 U.S. 153, 163-164 & n.12 (99 SCt
1635, 60 LE2d 115) (1979). Although White and Herbert have no binding effect
on our interpretation of OCGA § 51-5-9, which is a question of state—not
federal—law, these cases (like the English and early American decisional law
and treatises we cite above) illustrate the principles that formed the basis of
31
(b) The Codification of Nineteenth Century Defamation
Principles in a Precursor to OCGA § 51-5-9 and Early Georgia
Decisional Law Applying Those Principles
The text that is now found in OCGA § 51-5-9 was first codified
in Section 2923 of the Georgia Code of 1860, which said: “In every
case of privileged communications, if the privilege is used merely as
a cloak for venting private malice, and not bona fide in promotion of
the object for which the privilege is granted, the party defamed has
a right of action.” (Emphasis in original.) See also Code of 1860 §§
2917 (explaining that in defamation cases, “malice is inferred from
the character of the charge” and that “in cases of privileged
communications,” proof rebutting the inference of malice barred
recovery); 2922 (listing certain types of conditionally privileged
early American defamation law in the states, including Georgia defamation
law. See, e.g., Stanley v. Patterson, 314 Ga. 582, 583-584 n.3 (878 SE2d 529)
(2022) (explaining that United States Supreme Court precedent, although not
binding, was persuasive in light of its “thorough assessment of the common-
law basis of federal judicial immunity that also formed the basis for Georgia’s
judicial immunity doctrine”).
32
communications).13 The text of Section 2923, which has been
included in substantially similar form in every subsequent version
of the Code, is consonant with the traditional English and early
American legal rule regarding the showing required to defeat a
conditional-privilege defense discussed above, and nothing in the
text of Section 2923 suggests that it altered that established rule.
We therefore conclude that Section 2923 codified the rule that a
defense of conditional privilege cannot succeed if the plaintiff
establishes that the defendant made the allegedly defamatory
statement with ill will or an intent to injure rather than with the
honest purpose of promoting a legitimate interest.
Consistent with this conclusion, the first Georgia decisions
13 Although not at issue here, we note that this Court has understood the
phrase “[i]n every case of privileged communications” in the text of what is now
OCGA § 51-5-9 to mean “every case of conditional privilege.” Wilson v.
Sullivan, 81 Ga. 238, 243 (7 SE 274) (1888). We also note that the text of
Section 2917 of the Georgia Code of 1860 has been carried forward in
substantially similar form in every version of the Code and is now found in
OCGA § 51-5-5. And many of the sorts of conditional privileges listed in Section
2922 of the Code of 1860 are now enumerated in OCGA § 51-5-7, including the
conditional privilege that the Court of Appeals concluded applied in this case:
“Comments of counsel, fairly made, on the circumstances of a case in which he
or she is involved and on the conduct of the parties in connection therewith.”
33
applying the predecessors to OCGA § 51-5-9 set forth the principle
that a plaintiff can defeat a conditional-privilege defense by showing
that the defendant acted with ill will or an intent to injure the
plaintiff when he made the allegedly defamatory statement. For
example, in Lester v. Thurmond, 51 Ga. 118 (1874), the plaintiff sued
the defendant, a lawyer, for defamation based on a statement that
he made during a criminal trial. See id. at 119. Explaining that the
defendant’s statement was “privileged” because it was made “in the
discharge of his duty in the regular course of judicial proceedings in
the courts,” this Court determined that the plaintiff was required to
prove “actual malice” or “express malice,” meaning that he must
establish that the defendant “avail[ed] himself of his position as an
advocate maliciously to slander another by uttering words wholly
unjustifiable.” Id. at 120 (emphasis in original). Concluding that the
plaintiff had failed to submit any evidence that the defendant’s
statement was “spoken maliciously,” this Court upheld the jury’s
34
verdict for the defendant. Id. (emphasis in original).14 See also Pearce
v. Brower, 72 Ga. 243, 244-246 (1884) (reversing the trial court’s
grant of the defendant’s motion for a “non-suit” on the grounds that
the allegedly defamatory statement was conditionally privileged
and the plaintiff had failed to overcome the privilege by “show[ing]
malice” because that issue was for the jury to decide, and noting that
on remand, if the statement was “written in good faith, without
malice, and with no intent to injure the reputation of the plaintiff,”
the conditional-privilege defense would apply, “[b]ut if the privilege
was used merely as a cloak for venting private malice, and not bona
fide in promotion of the object for which the privilege is granted,
then the plaintiff could recover”) (emphasis in original); Jones v.
Forehand, 89 Ga. 520, 523-524 (16 SE 262) (1892) (explaining that
a conditionally privileged statement is “made with the bona fide
14 The text of OCGA § 51-5-8, which as discussed above, provides that
“charges, allegations, and averments contained in regular pleadings” are
absolutely privileged, was first enacted in substantially similar form in 1895,
more than 20 years after Lester was decided. See Code of 1895 § 3842. Lester
did not address whether the allegedly defamatory statements in that case fell
within the ambit of absolute privilege.
35
intent on the part of the defendant to protect his own interest in
[the] matter” and is “prima facie protected,” and “this protection
remains until overcome by proof of express malice; and, though the
language, if violent or excessive, may amount to proof of express
malice, it should be left to the jury to say whether it amounts to such
proof or not”) (emphasis in original).
Throughout the first half of the twentieth century, Georgia
appellate courts continued to follow the rule that a plaintiff, to
defeat a defense of conditional privilege, must establish that the
defendant acted with ill will or an intent to injure. See, e.g., Holmes
v. Clisby, 118 Ga. 820, 825 (45 SE 684) (1903) (explaining that the
question of conditional privilege is “dependent upon the intention
with which [the allegedly defamatory statement] was published. If
bona fide, with the sole purpose of protecting himself, it would be; if
otherwise, it would not” and noting that the issue should be
determined by a jury); Sheftall v. Central of Ga. Ry. Co., 123 Ga. 589,
592-593 (51 SE 646) (1905) (citing various provisions of Townshend,
supra, in explaining the defense of conditional privilege; setting
36
forth the elements of conditional privilege that Georgia appellate
courts still apply today—“good faith, an interest to be upheld, a
statement limited in its scope to this purpose, a proper occasion and
publication in a proper manner and to proper parties only”; and
noting that the privilege would be lost if it “was used as a cloak for
venting malice”); Atlanta News Publishing Co. v. Medlock, 123 Ga.
714, 719-720 (51 SE 756) (1905) (explaining that a conditional
privilege could be defeated by “actual malice” or “express malice”);
Gillis v. Powell, 129 Ga. 403, 409-411 (58 SE 1051) (1907) (noting
that “the law will not tolerate [the conditional privilege] being used
to vent the malice of any individual, even though he may be one who
thinks he has been grievously wronged” and that if the defendant
made the allegedly defamatory statement “in good faith and without
malice, and to the proper persons, at proper times and places, he
would be entitled to a verdict in his favor. On the other hand, if it
should appear that he was animated by malice in his statements,
the plaintiff would be entitled to recover”); Nicholson v. Dillard, 137
Ga. 225, 231 (73 SE 382) (1911) (explaining that a statement is
37
conditionally privileged if the defendant makes it “with a bona fide
intent to protect his own interest in a matter where it is concerned;
but in such a case he must do so at his peril, if he exceeds the limit
of his privilege and uses the language, not merely to protect his
interest, but to vent his private malice on the person spoken of”);
McIntosh v. Williams, 160 Ga. 461, 465 (128 SE 672) (1925)
(explaining that if an allegedly defamatory statement was
conditionally privileged, such that “it was made in good faith and
without malice by the defendant to protect his interest . . . , then the
plaintiff could not recover”); Atlanta Journal Co. v. Doyal, 82 Ga.
App. 321, 332-333 (60 SE2d 802) (1950) (explaining that the term
“malice” in the law of defamation can “be used in two senses”: “to
denote absence of lawful excuse or to indicate absence of privileged
occasion,” which is “‘[i]mplied’ malice or ‘malice in law,’” and to
denote “intent of mind and heart, or ill will against a person,” which
is “‘express malice’ or ‘malice in fact’” and saying that “[p]roof that
the communication is privileged rebuts the prima facie presumption
of malice in law” and that the “only effect of privilege is to require
38
the plaintiff to prove actual malice”) (citation and punctuation
omitted); Shiver v. Valdosta Press, 82 Ga. App. 406, 411 (61 SE2d
221) (1950) (concluding that a conditional privilege is defeated “if
the defendant acted with express malice and a desire to injure the
plaintiff and expose him to public hatred, contempt and ridicule in
the publication”).15
Thus, consistent with the early nineteenth century legal
landscape discussed above, for nearly 100 years, appellate cases in
Georgia applied the rule that a defamation plaintiff, to defeat a
defense of conditional privilege, must establish that the defendant’s
claim that he made an allegedly defamatory statement to promote a
15 Consistent with early nineteenth century decisional law in England
and the American states, a plaintiff in Georgia could establish that the
defendant made an allegedly defamatory statement with ill will or an intent to
injure by showing that he knew that the statement was false or that he
harbored feelings of ill will toward the plaintiff. See, e.g., Jordan v. Hancock,
91 Ga. App. 467, 474 (86 SE2d 11) (1955) (noting that “under the pleadings and
proof in this case, there was an issue of fact as to whether the communication
referred to was made maliciously with conscious knowledge that it was false,
in which case there would be such abuse of the privilege claimed as to deny to
the defendants the right to claim its protection from liability”); Van Gundy v.
Wilson, 84 Ga. App. 429, 430 (66 SE2d 93) (1951) (noting in the “[s]yllabus by
the [c]ourt” that a plaintiff can show actual malice to defeat a conditional
privilege “by introducing in evidence extraneous circumstances which show an
actual spite, ill will or desire to injure the person defamed”).
39
legitimate interest is a sham or ruse—and that he made the
statement with “private malice,” meaning with ill will toward the
plaintiff or with an intent to injure him. But something happened in
1964 that injected confusion into the Court of Appeals’s analysis of
private malice: the United States Supreme Court decided New York
Times, which formulated, as a matter of federal constitutional law,
a meaning for the term “actual malice” that differed from the
meaning that Georgia defamation law had ascribed to “private
malice.” In the wake of New York Times, it appears that the Court
of Appeals, over time and without analysis of the legal context of
OCGA § 51-5-9, developed a line of precedent that engrafted the
constitutional standard onto Georgia law. To better explain, we turn
to the federal constitutional law on defamation set forth in New York
Times and its progeny and the effect of those constitutional
requirements on state defamation law.
(c) New York Times and Its Progeny
In New York Times, the United States Supreme Court held that
the First Amendment places certain limitations on state defamation
40
law. In that case, a public official in Alabama sued the publisher of
the New York Times for defamation in state court based on a
political advertisement condemning the actions of local public
officials with respect to their handling of civil rights demonstrations
in Alabama. See New York Times, 376 U.S. at 256-259. It was
undisputed that some of the statements in the advertisement were
false, such that the publishing company would be strictly liable
under Alabama law unless it could establish that the statements
were true. See id. at 256-263. Noting that a “rule compelling the
critic of official conduct to guarantee the truth of all his factual
assertions” would deter protected speech, the Court announced that
the First Amendment
prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct
unless he proves that the statement was made with
“actual malice”—that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.
Id. at 279-280.
The “actual malice” standard, which the Court has since
described as “a constitutional privilege,” Gertz v. Robert Welch, Inc.,
41
418 U.S. 323, 334 (94 SCt 2997, 41 LE2d 789) (1974), was later
extended beyond “public officials” to plaintiffs who are “public
figures,” see Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (87
SCt 1975, 18 LE2d 1094) (1967) (plurality opinion).16 The United
States Supreme Court has also held that even a private-figure
plaintiff is required to prove “actual malice” in order to recover
presumed or punitive damages if the defamatory statement was
about a matter of public concern. See Gertz, 418 U.S. at 349-350. See
also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.
749, 761-763 (105 SCt 2939, 86 LE2d 593) (1985) (explaining that
“‘[w]hether . . . speech addresses a matter of public concern must be
determined by [the expression’s] content, form, and context . . . as
revealed by the whole record’” and holding that a false credit report
regarding the plaintiff was not a matter of public concern) (citation
omitted).
In such cases, “actual malice” must be proved not merely by a
16Such a “public-figure” plaintiff has assumed a role of “especial
prominence in the affairs of society,” either for all purposes or for the limited
purpose of the particular public controversy at issue. Gertz, 418 U.S. at 345.
42
preponderance of the evidence but by clear and convincing evidence,
see New York Times, 376 U.S. at 285-286; Gertz, 418 U.S. at 342,
which is an “extremely high” standard of proof, Zeh, 312 Ga. at 669
(citation and punctuation omitted). And the United States Supreme
Court has made clear that “actual malice” in the constitutional sense
requires a plaintiff to show “that the defendant actually had a ‘high
degree of awareness of . . . probable falsity.’” Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (109 SCt
2678, 105 LE2d 562) (1989) (citation omitted). See also St. Amant v.
Thompson, 390 U.S. 727, 731 (88 SCt 1323, 20 LE2d 262) (1968)
(“There must be sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his
publication.”). Thus, the term “actual malice” as defined in New York
Times is more stringent than the sort of “malice in fact” that a
plaintiff was required to prove under the traditional rule to defeat a
conditional privilege. Indeed, the United States Supreme Court has
emphasized that “the actual malice standard is not satisfied merely
through a showing of ill will or ‘malice’ in the ordinary sense of the
43
term” and that the “phrase ‘actual malice’ is unfortunately confusing
in that it has nothing to do with bad motive or ill will.” Harte-Hanks,
491 U.S. at 666 & n.7. See also, e.g., Beckley Newspapers Corp. v.
Hanks, 389 U.S. 81, 82-83 (88 SCt 197, 19 LE2d 248) (1967)
(explaining that an instruction that the jury “could find for the
[public-official plaintiff] if it were shown that [the defendant] had
published the editorials ‘with bad or corrupt motive,’ or ‘from
personal spite, ill will or a desire to injure [the] plaintiff’” misstated
the “actual malice” standard in New York Times, which requires a
showing that the defendant made the allegedly defamatory
statement “‘with knowledge that it was false or with reckless
disregard of whether it was false or not’”).17
17 Notably, the United States Supreme Court borrowed the term “actual
malice” from the traditional rule that a plaintiff must show malice in fact or
“actual malice” to defeat a conditional privilege, although the Court defined
“actual malice”—in its constitutional sense—differently than that term was
ordinarily understood. In this respect, in announcing the “actual malice”
standard in New York Times, the Court cited a 1908 Kansas Supreme Court
case, Coleman v. MacLennan, 78 Kan. 711 (98 P 281) (1908). See New York
Times, 376 U.S. at 280. The Court recounted that in Coleman, which involved
a defamation lawsuit brought by a Kansas public official against a newspaper,
the Kansas Supreme Court held that a “‘qualified’” privilege exists for
“‘matters of public concern, public men, and candidates for office’” and a
44
The constitutional “actual malice” requirement does not
pertain, however, to defamation cases brought by private-figure
plaintiffs relating to statements that do not involve matters of public
concern. Those cases are controlled by Georgia law. About ten years
plaintiff in such cases “‘must show actual malice, or go remediless.’” New York
Times, 376 U.S. at 281-282 (quoting Coleman, 78 Kan. at 285-286). But the
United States Supreme Court did not mention, much less import into its
definition of “actual malice” in the constitutional sense, the meaning that
Coleman ascribed to the phrase “actual malice.” Coleman defined “actual
malice” in the same way that it was defined by the traditional nineteenth
century rule. See 78 Kan. at 741 (stating that “[i]f [the allegedly defamatory
statement] be conditionally privileged, the plaintiff must prove malice, actual
evil-mindedness, or fail” and explaining that the plaintiff can provide such
proof “from an interpretation of the writing, its malignity, or intemperance by
showing recklessness in making the charge, pernicious activity in circulating
or repeating it, its falsity, the situation and relations of the parties, the facts
and circumstances surrounding the publication, and by other evidence
appropriate to a charge of bad motives as in other cases”). See also, e.g., John
Bruce Lewis & Bruce L. Ottley, New York Times v. Sullivan at 50: Despite
Criticism, the Actual Malice Standard Still Provides “Breathing Space” for
Communications in the Public Interest, 64 DePaul L. Rev. 1, 23-26 (2014)
(noting that because Coleman’s definition of “actual malice” was “evil-
mindedness,” which was consistent with the traditional meaning of that term
(i.e., “‘spite or ill will’”), “‘Coleman does not align well with the actual malice
rule described in Sullivan’”) (citation omitted). Indeed, the issue in Coleman
was not the meaning of “actual malice,” which as discussed above, was well
settled in early American law; rather, the Kansas Supreme Court was
concerned with whether Kansas should adopt a conditional privilege for
allegedly defamatory statements about “matters of public concern, public men,
and candidates for office.” 78 Kan. at 723. Thus, although the term “actual
malice” is derived from the use of that phrase in traditional conditional-
privilege cases, the constitutional standard did not mirror traditional
principles. See Harte-Hanks, 491 U.S. at 666 & n.7.
45
after New York Times, the United States Supreme Court concluded
in Gertz that “the state interest in compensating injury to the
reputation of private individuals requires that a different rule
should obtain with respect to them” and accordingly held: “[S]o long
as they do not impose liability without fault, the States may define
for themselves the appropriate standard of liability for a publisher
or broadcaster of defamatory falsehood injurious to a private
individual.” 418 U.S. at 343, 347. In response to Gertz, this Court
abandoned the traditional rule imposing strict liability in
defamation cases and held that negligence is the appropriate
standard for determining fault in such cases. See Triangle
Publications, Inc. v. Chumley, 253 Ga. 179, 181-182 (317 SE2d 534)
(1984). Thus, when a defendant makes an allegedly defamatory
statement about a private-figure plaintiff that does not involve a
matter of public concern, he is generally held to a standard of
ordinary care as a matter of Georgia law. See Zeh, 312 Ga. at 650-
651.
In sum, the United States Supreme Court has held that the
46
First Amendment places limits on state defamation law when the
plaintiff is a public official or public figure and when a private-figure
plaintiff seeks presumed or punitive damages relating to a
defamatory statement about matters of public concern, such that the
“actual malice” standard announced in New York Times (i.e.,
knowledge of falsity or reckless disregard for truth) applies in those
sorts of cases.18 But the Court has determined that in all other
respects, the states are free to impose their own defamation rules,
so long as they do not impose strict liability. Consequently, when a
18 In such cases, we must faithfully apply the New York Times standard
established by the United States Supreme Court. See Zeh, 312 Ga. at 652 n.5.
We note, however, that two Justices on that Court have called for
reconsideration of New York Times. See Berisha v. Lawson, ___ U.S. ___, ___
(141 SCt 2424, 2425, 210 LE2d 991) (2021) (Thomas, J., dissenting from the
denial of certiorari) (stating that “[t]his Court’s pronouncement that the First
Amendment requires public figures to establish actual malice bears ‘no
relation to the text, history, or structure of the Constitution’”) (citation
omitted); id. at 2429-2430 (Gorsuch, J., dissenting from the denial of certiorari)
(noting that “[m]any Members of this Court have raised questions about
various aspects of Sullivan,” and “given the momentous changes in the
Nation’s media landscape since 1964, I cannot help but think the Court would
profit from returning its attention, whether in this case or another, to a field
so vital to the ‘safe deposit’ of our liberties”). See also, e.g., Blankenship v.
NBCUniversal, LLC, ___ U.S. ___, ___ (144 SCt 5, 217 LE2d 151) (2023)
(Thomas, J., concurring in the denial of certiorari) (reiterating that the Court
should revisit the “actual malice” standard).
47
plaintiff is a private figure and does not seek presumed or punitive
damages flowing from a defamatory statement about a matter of
public concern, the “actual malice” standard in New York Times does
not apply, and Georgia defamation law controls. It is in these sorts
of cases that the Georgia statutes and decisional law about
conditional privileges come into play.19
(d) Confusion About “Actual Malice” After New York Times
Consistent with the legal framework we just recounted, after
New York Times, the Georgia Court of Appeals properly applied the
constitutional “actual malice” standard in some defamation cases
brought by public-official or public-figure plaintiffs, but applied
19 Because the issues of whether a plaintiff in a defamation case is a
public or private figure and whether he seeks presumed or punitive damages
related to a defamatory statement about a matter of public concern determine
whether a court should apply federal constitutional law or state law, we
emphasize that Georgia courts generally should engage in that inquiry as a
threshold matter in defamation cases.
In addition, although not at issue in this case, we note that OCGA § 51-
5-7 (9) deems conditionally privileged under Georgia law “[c]omments upon the
acts of public men or public women in their public capacity and with reference
thereto.” But as discussed above, the United States Supreme Court has made
clear that in cases involving defamatory statements about public-official and
public-figure plaintiffs, states must apply, at a minimum, the constitutional
“actual malice” standard announced in New York Times.
48
Georgia law—including the statutory requirement that a plaintiff,
to defeat a defense of conditional privilege, must prove “private
malice” or malice in fact, meaning ill will or an intent to injure—in
other defamation cases brought by private-figure plaintiffs.20 In
other cases, however, the Court of Appeals stated—without
discussion of the well-settled, state-law rule that a showing of malice
in fact is sufficient to overcome a conditional-privilege defense—that
a plaintiff could defeat a conditional privilege only by establishing
constitutional “actual malice,” as that term was defined by the
United States Supreme Court in New York Times.21
20 See, e.g., Thibadeau v. Crane, 131 Ga. App. 591, 592-593 (206 SE2d
609) (1974) (applying the constitutional “actual malice” standard in New York
Times to a defamation claim by a public-official plaintiff); Savannah Bank &
Trust Co. v. Sumner, 174 Ga. App. 229, 232 (329 SE2d 910) (1985) (holding
that the plaintiff could defeat the defendant’s conditional-privilege defense by
showing “actual malice,” meaning that he could introduce proof of “‘an actual
spite, ill will[,] or desire to injure the person defamed’”) (citation omitted).
21 See, e.g., Montgomery v. Pacific & Southern Co., Inc., 131 Ga. App.
712, 715-717 (206 SE2d 631) (1974) (holding that the plaintiff, a car service
station operator, who appeared to be a private figure (although the Court of
Appeals conducted no analysis as to that issue), had defeated the defense of
conditional privilege because he had shown that “there was a ‘reckless
disregard of the truth’ which is the equivalent of malice,” such that the trial
court erred by directing a verdict for the defendant) (quoting Curtis, 388 U.S.
at 170), overruled, as discussed more below, by Diamond v. American Family
49
Then, in 1988—almost 25 years after New York Times—the
Court of Appeals attempted to clarify its precedent regarding when
to apply the constitutional “actual malice” standard set out in New
York Times and when to apply the statutory standard of private
malice under the predecessors to OCGA § 51-5-9. See Diamond v.
American Family Corp., 186 Ga. App. 681, 684 (368 SE2d 350)
(1988) (overruling Montgomery v. Pacific & Southern Co., Inc., 131
Ga. App. 712 (206 SE2d 631) (1974), and another case to the extent
they held “that the qualified privilege for the reporting of matters of
public concern may be defeated only by a showing of actual malice”
Corp., 186 Ga. App. 681 (368 SE2d 350) (1988); Morton v. Stewart, 153 Ga.
App. 636, 638 (266 SE2d 230) (1980) (noting that a public official is required to
establish “actual malice” under New York Times and that the plaintiff was
required to overcome “the conditional privilege that attaches to news reports
of proceedings of judicial bodies” and concluding that “‘actual malice’ is the sine
qua non for [the plaintiff] to prevail on either theory”); Morton v. Gardner, 155
Ga. App. 600, 604 (271 SE2d 733) (1980) (holding that the plaintiff was a public
official but that the allegedly defamatory statement did not relate to his official
conduct, such that the rule in New York Times did not apply, but nevertheless
concluding that the plaintiff was required to prove “actual malice” under New
York Times to defeat the defendant’s showing of conditional privilege);
Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124) (1981) (holding
that a showing of knowledge of falsity or reckless disregard for truth under
New York Times negates a conditional privilege).
50
as defined in New York Times).22 And over the next 15 years, it
appears that the Court of Appeals generally applied the New York
Times standard of constitutional actual malice (i.e., knowledge of
falsity or reckless disregard for truth) in defamation cases involving
public-official and public-figure plaintiffs and the state-law
standard of private malice (i.e., ill will or intent to injure) in cases
involving whether a defendant’s allegedly defamatory statement
against a private-figure plaintiff was conditionally privileged under
Georgia law.23
But in the early 2000s, the Court of Appeals reversed course
22 The other case that the Court of Appeals overruled in Diamond was
WSAV-TV, Inc. v. Baxter, 119 Ga. App. 185 (166 SE2d 416) (1969). That case
held that when a defendant has made a prima facie showing of a conditional
privilege, “the burden is then upon the plaintiff to establish that the
publication was made with actual malice.” Id. at 186. But WSAV-TV did not
mention New York Times or its progeny and instead cited a prior version of
OCGA § 51-5-9 and cases applying the traditional rule requiring malice in fact
to overcome a conditional-privilege defense. See id.
23 See, e.g., Williams v. Cook, 192 Ga. App. 811, 812 (386 SE2d 665)
(1989); Brewer v. Rogers, 211 Ga. App. 343, 347-348 (439 SE2d 77) (1993);
Purvis v. Ballantine, 226 Ga. App. 246, 250 (487 SE2d 14) (1997); Dominy v.
Shumpert, 235 Ga. App. 500, 504-505 (510 SE2d 81) (1998); Sparks v. Peaster,
260 Ga. App. 232, 237 (581 SE2d 579) (2003).
51
and again concluded, as it had in several cases prior to Diamond,
that a private-figure plaintiff must establish “actual malice” within
the meaning of New York Times to defeat a state-law conditional
privilege, without explanation as to why the constitutional standard
would apply in such cases, which involved only matters of Georgia
law. See, e.g., Cooper-Bridges v. Ingle, 268 Ga. App. 73, 77-78 (601
SE2d 445) (2004) (holding that to defeat a defense of conditional
privilege, the plaintiff was required to show “actual malice”—that
the defendant “knew that the statements were false or published
with reckless disregard of whether they were false or not,” citing
Morton v. Gardner, 155 Ga. App. 600, 604 (271 SE2d 733) (1980),
but also noting that “‘[m]alice to avoid qualified privilege must be
actual and with evil intent’”) (citation omitted).24
24 See also, e.g., Rabun v. McCoy, 273 Ga. App. 311, 316 (615 SE2d 131)
(2005) (same, citing Cooper-Bridges and Gardner), overruled on other grounds
by West v. City of Albany, 300 Ga. 743 (797 SE2d 809) (2017); Smith v. Henry,
276 Ga. App. 831, 832-834 (625 SE2d 93) (2005) (same, citing Cooper-Bridges);
Fine v. Communication Trends, Inc., 305 Ga. App. 298, 302-305 (699 SE2d 623)
(2010) (same, citing Rabun and Smith); Murray, 345 Ga. App. at 287-288
(same, citing Cooper-Bridges); Neff v. McGee, 346 Ga. App. 522, 525-530 (816
SE2d 486) (2018) (same, citing Smith).
Notably, 30 years ago, the United States Court of Appeals for the
52
The line of Court of Appeals cases applying the constitutional
“actual malice” standard to a private-figure plaintiff seeking to
defeat a conditional-privilege defense is not grounded in the
historical and legal background of OCGA § 51-5-9. Rather, it appears
that this line of cases inadvertently imported the New York Times
“actual malice” standard into OCGA § 51-5-9, without analysis of
the limited circumstances in which the United States Supreme
Court has said that the standard applies as a matter of United
States constitutional law, or of that Court’s acknowledgment that
the New York Times “actual malice” standard is not based on the
traditional meaning of “actual malice.” And as we explain more
below, we therefore conclude that the “actual malice” standard in
New York Times does not apply in the context of analyzing whether
Eleventh Circuit recognized that our Court of Appeals has “over time and
without explanation,” “engrafted upon OCGA § 51-5-9 the constitutional
‘actual malice’ standard outlined for public figure defamation cases in New
York Times Co. v. Sullivan.” Hammer v. Slater, 20 F3d 1137, 1141-1142 (11th
Cir. 1994). We note, however, that the parties in this case have not pointed to,
and we have not found, any cases from this Court that have conflated the
constitutional “actual malice” standard and the “private malice” standard,
likely because the bulk of appellate defamation cases in Georgia has been
decided in the Court of Appeals.
53
a private-figure plaintiff whose claim is based on defamatory
statements that do not involve matters of public concern has
overcome a conditional privilege as a matter of Georgia law.
4. The “Private Malice” Referenced in OCGA § 51-5-9 Is Not
Equivalent to the “Actual Malice” Standard the United States
Supreme Court Articulated in New York Times
To recap, we explained above that the first version of OCGA §
51-5-9, which was enacted in 1860, codified the traditional rule that
a plaintiff, to overcome a defense of conditional privilege, must show
that the defendant’s claim that he made an allegedly defamatory
statement to promote a legitimate interest is a sham and that
instead, he made the statement with ill will toward the plaintiff or
with an intent to injure him. Georgia appellate cases consistently
applied this rule for 100 years after the text of what is now OCGA §
51-5-9 was enacted. Then, in 1964, the United States Supreme Court
held in New York Times that the states must apply the
constitutional standard of “actual malice”—meaning knowledge of
falsity or reckless disregard for truth—when a plaintiff in a
54
defamation case is a public official or public figure or when he is a
private figure seeking presumed or punitive damages related to a
defamatory statement about a matter of public concern. But outside
of those contexts—such as when a plaintiff is a private figure and
does not seek such damages—the “actual malice” standard in New
York Times does not apply.
In light of the history of OCGA § 51-5-9 (and considering the
federal constitutional law on defamation), we conclude that the text
of that statute requires a plaintiff, to overcome a conditional
privilege, to establish that the defendant used the privilege as a
pretense, such that the allegedly defamatory statement was not
made for one of the bona fide purposes listed in OCGA § 51-5-7 but
was instead made with “private malice,” meaning with ill will
toward the plaintiff or with an intent to injure him. This
understanding of OCGA § 51-5-9 is not altered by New York Times,
which had no effect on Georgia defamation law in cases brought by
private-figure plaintiffs involving allegedly defamatory statements
that do not involve matters of public concern. Thus, such Court of
55
Appeals cases that, after New York Times, determined that a
plaintiff can overcome a conditional-privilege defense only by
establishing the type of constitutional “actual malice” articulated in
New York Times—meaning knowledge of falsity or reckless
disregard for truth—applied the wrong legal standard.25 We
therefore overrule those cases.26
25 We note, however, that a showing of knowledge of falsity (one prong of
the constitutional “actual malice” standard) may often satisfy the standard of
“private malice” under Georgia law because traditionally, a plaintiff could
prove private malice by establishing that the defendant knew that his
statement was false. See, e.g., Townshend, supra, at § 245; Jordan, 91 Ga. App.
at 474. But as discussed above, a plaintiff can also prove private malice by
establishing that the defendant harbored feelings of ill will toward the
plaintiff, such that the private-malice standard is less demanding than the
constitutional “actual malice” standard. See, e.g., Townshend, supra, at § 245;
Van Gundy, 84 Ga. App. at 430.
26 See Melton v. Bow, 145 Ga. App. 272, 273 (243 SE2d 590) (1978);
Stewart, 153 Ga. App. at 638; Gardner, 155 Ga. App. at 604; Sherwood, 157
Ga. App. at 543; Meyer v. Ledford, 170 Ga. App. 245, 247 (316 SE2d 804) (1984);
Fiske v. Stockton, 171 Ga. App. 601, 603 (320 SE2d 590) (1984); Anderson v.
Housing Auth. of Atlanta, 171 Ga. App. 841, 843 (321 SE2d 378) (1984);
DeBerry v. Knowles, 172 Ga. App. 101, 104 (321 SE2d 824) (1984); Clayton v.
Macon Telegraph Publishing Co., 173 Ga. App. 466, 466 (326 SE2d 789) (1985);
Heard v. Neighbor Newspapers, Inc., 190 Ga. App. 756, 758 (380 SE2d 279)
(1989), reversed on other grounds by Heard v. Neighbor Newspapers, Inc., 259
Ga. 458 (383 SE2d 553) (1989); Smith v. Vencare, Inc., 238 Ga. App. 621, 627
(519 SE2d 735) (1999); Cooper-Bridges, 268 Ga. App. at 77; Rabun, 273 Ga.
App. at 316; Smith, 276 Ga. App. at 832-834; Torrance v. Morris Publishing
Group, LLC, 281 Ga. App. 563, 572 (636 SE2d 740) (2006); Fine, 305 Ga. App.
at 302-305; Murray, 345 Ga. App. at 287-288; Neff, 346 Ga. App. at 525-530.
56
With that, we circle back to the Court of Appeals’s
determination in this case that Oskouei was required to establish by
clear and convincing evidence that Matthews acted with “actual
malice,” meaning that “Matthews knew that his statements were
false or that he made them with a reckless disregard for the truth,”
to overcome the conditional privilege set forth in OCGA § 51-5-7 (7).
Matthews, 369 Ga. App. at 575. As we explained above, that is not
the standard that applies when a plaintiff seeks to overcome a
conditional-privilege defense under Georgia law, unless the plaintiff
is a public official or public figure or unless he is a private figure
seeking presumed or punitive damages related to a defamatory
statement about a matter of public concern, such that the New York
Times “actual malice” standard would instead apply.27 When only
Georgia law applies, a plaintiff seeking to overcome a conditional-
privilege defense must establish by a preponderance of the evidence
(the standard that generally applies to civil cases, see OCGA § 24-
27 The parties do not expressly allege that Oskouei is a public figure or
that Matthews’s allegedly defamatory statements related to a matter of public
concern, and the trial court and the Court of Appeals did not address that issue.
57
14-3) that the defendant made the allegedly defamatory statements
with ill will toward the plaintiff or with an intent to injure him. See,
e.g., Lester, 51 Ga. at 120; Pearce, 72 Ga. at 244-246; Nicholson, 137
Ga. at 231. Because the Court of Appeals incorrectly imported the
constitutional “actual malice” standard into OCGA § 51-5-9 in this
case, we vacate the Court of Appeals’s opinion and remand the case
to that court for further proceedings consistent with this opinion.
Judgment vacated and case remanded. All the Justices concur,
except Peterson, PJ, who concurs except as to footnote 18.
MCMILLIAN, Justice, concurring.
Although I concur fully in the Court’s opinion, I write
separately to clarify why I believe we must vacate the Court of
Appeals’s judgment in this case and remand with direction for the
trial court to evaluate Matthews’s anti-SLAPP motion under the
correct standards, including on the threshold question of whether
Georgia defamation law or the federal New York Times standard
applies.
58
I agree wholly with the Court’s thorough analysis of Georgia
defamation law and how the New York Times “actual malice”
standard has been misapplied to defamation claims that are
governed solely by state law. I also agree that the first step in the
analysis of whether a plaintiff may prevail on his defamation claims
is to determine whether Georgia’s defamation law or federal
constitutional defamation law, as established under New York
Times, applies to his claims.28 See Gertz v. Robert Welch, Inc., 418
U.S. 323, 346 (III), 349-350 (IV) (94 SCt 2997, 41 LE2d 789) (1974)
(acknowledging “actual malice” standard applies to a private-figure
plaintiff when the defamatory statement is about a matter of public
concern while recognizing that states may, without imposing strict
liability, separately define the standard of liability for defamatory
statements that injure the reputation of private individuals and do
not involve a matter of public concern); American Civil Liberties
28 Accord Maj. Op. at 19-22 (recognizing that the federal constitutional
“actual malice” requirement does not apply to defamation cases brought by
private-figure plaintiffs regarding statements that do not involve matters of
public concern).
59
Union v. Zeh, 312 Ga. 647, 650-51 (1) (b) (864 SE2d 422) (2021).
However, no court, including this Court, has considered or
expressly determined whether the statements at issue here are the
type that would constitute statements of public concern, such that
the New York Times actual malice standard would apply. See
Matthews v. Oskouei, 369 Ga. App. 568, 573-74 (b) (894 SE2d 141)
(2023) (addressing Matthews’s statements in terms of comments
made by counsel pursuant to OCGA § 51-5-7 (7) but without
analyzing whether his statements would constitute statements of
public concern under New York Times). This Court did not do so
because of the procedural posture of the case, in which the Court of
Appeals analyzed the defamation claim using the New York Times
standard, and we granted certiorari on the legal question of whether
the “actual malice” standard applies to overcome a defense of
conditional privilege under OCGA § 51-5-7 (7), without specifically
pointing the parties to this threshold issue.29 The parties and lower
29 The question presented on certiorari was: “To overcome a defense of
conditional privilege under OCGA § 51-5-7 (7), must a plaintiff show that the
60
courts may not have focused on this threshold question because it
may not have seemed significant given that the Court of Appeals
precedent has, at times, conflated the New York Times actual malice
standard with Georgia’s private malice standard.
Nonetheless, although the Court is correct that the “parties do
not expressly allege that Oskouei is a public figure or that
Matthews’s allegedly defamatory statements related to a matter of
public concern,” Maj. Op. at 27 n.27, it appears that Matthews made
arguments below that could support application of the New York
Times standard. Matthews asserted in his anti-SLAPP motion that
the alleged defamatory statements were a matter of “public
interest”:
Oskouei’s lawsuit lacks justification because any
statements allegedly made by Matthews about Oskouei
were necessarily made in connection with Matthews’s
legal work and/or with matters of public interest, and
were thus privileged speech.
Matthews also noted in his motion that he “has twice been called to
defendant asserting the privilege acted with ‘actual malice’ regardless of
whether the [plaintiff] is a public figure?”
61
testify before the Georgia House Judiciary Committee on matters of
public interest pertaining to the ‘phantom damages’ created by lien
doctors and their business model.” Matthews also argued that the
types of “medical billing fraud” at issue in this case “are clearly
matters of public interest and reasonable grounds for free speech”
and are “directly analogous to the conduct of Martin Shkreli, who
was the subject of widespread media coverage.”
Thus, it remains an open question of whether the alleged
defamatory statements were of public concern, such that the New
York Times standard could apply. Because no court has yet decided
this key threshold issue, the appropriate disposition is to vacate the
judgment of the Court of Appeals with direction to remand the case
to the trial court for consideration of whether Oskouei has
established a reasonable probability of prevailing on his claims,
under the standards enunciated by the Court, including the
threshold question of whether state defamation law or the New York
62
Times standard applies.30 See, e.g., Zeh, 312 Ga. at 676 (5) n.26
(explaining that, while “all public officials may be public figures,
even though all public figures are not public officials[,]” that
question was not posed on certiorari and leaving it “to the trial court
to decide in the first instance on remand whether the ACLU claims
that Zeh is a ‘public figure plaintiff’ as that term is used in OCGA §
9-11-11.1 (b) (2)” (punctuation omitted)).
30 Even without specific direction by the Court, the parties could revisit
this issue on remand, and the lower courts would not be precluded by law of
the case because neither this Court nor the Court of Appeals has explicitly
ruled on this threshold question. See Currid v. DeKalb State Court Probation
Dept., 285 Ga. 184, 186 n.5 (674 SE2d 894) (2009) (explaining that law of the
case doctrine applies only to issues expressly ruled on previously and does not
apply to an “implied” ruling on an issue not addressed in the previous decision).
See generally OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the
Court of Appeals in a case shall be binding in all subsequent proceedings in
that case in the lower court and in the Supreme Court or the Court of Appeals
as the case may be”).
63
Decided February 18, 2025.
Certiorari to the Court of Appeals of Georgia — 369 Ga. App.
568.
Robbins Alloy Belinfante Littlefield, Joshua B. Belinfante,
Daniel J. Monahan; Heidari Power Law Group, Yasha Heidari,
Yennifer S. Delgado, Chenyu Li; Ryan E. Harbin, for appellant.
Hedrick Law, L. Bruce Hedrick; Wilson Elser Moskowitz
Edelman & Dicker, Parks K. Stone, Michael T. Manfredi, Eleanor G.
Jolley; McMickle Kurey & Branch, Scott W. McMickle, Kevin P.
Branch, for appellee.
Kilpatrick Townsend & Stockton, Thomas M. Clyde, Lesli N.
Gaither, amici curiae.
64