A Georgia test of political speech on the Internet

It is dangerous to predict what any jurist will do, but on Thursday, Henry County Superior Court Judge Arch McGarity will be presented with an opportunity to close the books on the 2010 GOP race for governor.

In the process, the judge could also create – or continue — an important precedent for political speech on the Internet.

You will recall that Ray McBerry was one of several Republican candidates for the job of governor. He was the states rights’ candidate on the ballot. You might also recall that it was reported in this space that, while a Henry County high school teacher, McBerry was caught having a relationship with a high school student.

McBerry was 34 and divorcing his second wife. The student was 16 and 17 during the affair.

Before McBerry jumped into politics, the student’s mother, Linda Pittman, successfully lobbied to have his teaching license suspended. During the 2010 campaign, she wrote the following on her Facebook page, accessible to a few hundred friends:

“Georgia voters who don’t want a child molester for governor … Ray McBerry needs to withdraw from the governors [sic] race.”

One primary candidate, Karen Handel, refused to appear on the same stage with McBerry, who finished last with 2.5 percent of the GOP primary vote.

Afterwards, McBerry sued Pittman – who, then as now, suffered from breast cancer — and the authors of an Internet political site for libel.

On Thursday, in Henry County Court, Pittman’s lawyers will ask the judge to dismiss the case. This will be part of the argument made by attorneys John Rains and Emmet Bondurant:

At the time Mrs. Pittman made the statements about which McBerry complains, she did not know the elements of Georgia’s statute criminalizing child molestation. Nor did she look them up. Instead, Mrs. Pittman expressed her common-sense belief that an adult man that has sexual contact with a teenage girl is a child molester. Mrs. Pittman believed that to be true in April 2010 when she made the statements, and she believes that is true now.”

For you law school students, one facet of the Pittman argument will rest on New York Times v. Sullivan:

Mrs. Pittman’s statements were “in furtherance of the right of free speech,” because they are entitled to absolute protection under the First Amendment, and because there is no evidence the statements were made with actual malice, a prerequisite to any libel action by a public figure. And Mrs. Pittman’s statements were “made in connection with an issue under consideration by … [an] official proceeding authorized by law,” because they were made in connection with the gubernatorial primary, a proceeding authorized by O.C.GA § 21-2-152 et seq.

Pittman’s attorneys also argue that, given McBerry’s standing in the community, the former candidate for governor qualifies as a “libel-proof plaintiff”:

Even if McBerry had a viable libel claim against Mrs. Pittman, she is still entitled to summary judgment because nothing she wrote could have harmed McBerry’s already poor reputation. “Under the libel-proof plaintiff doctrine, if there is little or no harm to a plaintiffs already low reputation, then the statements are not actionable.

Read the entire Pittman motion for dismissal here. McBerry’s answer is here. In public statements, McBerry has always denied that his relationship with Pittman’s daughter was sexual.

But here’s a paragraph from his own argument that allows for another possibility:

Her defamatory statements were made to the 800 million Facebook members on that public networking site. Mrs. Pittman knew when she published the statement that it was untrue. Mrs. Pittman knew that, even if something sexual had happened between her daughter and the Plaintiff, it would not have been child molestation because her daughter was at or above the age of consent in this State.

Pittman’s motion makes it clear that, upon dismissal, she’ll require McBerry to pay her attorney fees. If not, we’re headed for a whizbang trial.

- By Jim Galloway, Political Insider

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30 comments Add your comment

td

March 13th, 2012
4:36 pm

I think I will take the side of freedom of speech in this case. He was running for office, so therefore there is a higher standard for liable. If he had not been running for office then he could have a case against her.

Michael

March 13th, 2012
4:40 pm

People and their common-sense beliefs are what get them into trouble and then the alleged victim of common-sense beliefs suffer the consequences. By the way, she will win on the public figure grounds. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

GET REAL

March 13th, 2012
4:58 pm

Kudos to Mrs. Pittman for outing a sicko like McBerry. Doesn’t he have a daughter? How would he like it if his 16 or 17 year old daughter was involved in a sexual affair with a 39 year old? No right thinking father or mother would.

UGA75

March 13th, 2012
5:05 pm

I hate to express my opinion here, because I am not a fan of Ray McBerry, but I do believe that the actions taken by and words spoken by Ms. Pittman were in fact Libelous. If not for the very end of her statement I would not feel that way, but she specifically said that “Ray should withdraw from the Governor’s race”. It is hard to argue with intent, words like bullets can be aimed and it is hard to return them to the barrel of a gun or a person’s mouth. Were I on the Jury, if this went to trial, I’d order Ms. Pittman to pay damages in the amount of $1.00 spread over 20 years so as to not be a hardship to her. Those who disagree with me may be right, I make no claim to Solomon like wisdom, probably more like Bullwinkle Moose wisdom, but that is my opinion.

Aquagirl

March 13th, 2012
5:05 pm

While I hate to see a cancer patient put through a trial, I’d love to see Mr. McCreepy make his case in court. “Never mind that I gave this teenager a cellphone without her parent’s knowledge so she could contact me. And those meetings on back roads—nothing happened. Please ignore the intervention of my church members who said I should leave her alone. Or my rambling 7 page letter that ended with the offer of a puppy. It was all perfectly innocent. And if it wasn’t, so what? She was past the age of consent!”

Maybe this freak believes this is how to clear his name. What a delusional @$$hat.

Curious Reader

March 13th, 2012
5:13 pm

Looks like this case may make it to a legal text book someday.

John

March 13th, 2012
5:22 pm

So if Pittman’s get dismissed, doesn’t this open up avenues for Sexton and Knighton as well? Specifically, either dismissal or possibly moving any proceedings to their local jurisdiction, as is required under the Ga Constitution?

td

March 13th, 2012
5:23 pm

Aquagirl

March 13th, 2012
5:05 pm

Although I think Ms. Pittman should win the case on the law, nothing you stated can even be used in and is irrelevant to the case. Mr. Berry is making the claim that under Georgia law that having consensual sex with a 17 year old is not illegal. He is correct. He is stating therefore that by Ms. Pittman calling him a molester in public (Facebook) then she is libel for slander. IMO, if he were not a politician then he would have been correct and win the case but since he was running for governor then the standard and burden of proof is much higher because what Ms Pittman said could be construed as political speech and is protected from liable.

John

March 13th, 2012
5:27 pm

td: Rachel wasn’t 17. She was younger.

Aquagirl

March 13th, 2012
5:44 pm

Mr. Berry is making the claim that under Georgia law that having consensual sex with a 17 year old is not illegal. He is correct.

True, but you miss my entire point. Why is he suing? What’s to gain? The defendant has cancer and was “defaming” a 34 year old for slinking around with her 17 year old daughter. If he’s in this for the cash, he’s delusional. If he’s in it just for the satisfaction of being declared legally “right” he’s an @$$hat voluntarily dragging his own name through the mud.

Think about it…if your minister said to you “Mr. and Mrs. Smith are concerned about you hanging around their daughter. I’m asking you, on their behalf, to stop,” wouldn’t you be mortified? Would you want Mrs. Smith recounting this meeting in court? Ewwwww.

Centrist

March 13th, 2012
5:53 pm

Libel, slander, terrorist threats, and yelling fire in a crowded theater are exempted from free speech – but it is true that celebrities and politicians have a higher standard to prove libel and slander.

Centrist

March 13th, 2012
5:56 pm

Exit polls say Romney will win MS. The media often ignores the delegate splits in favor of “who won” – at least when Gingrich or Santorum win. Wonder how this will play.

honested

March 13th, 2012
6:32 pm

centrist,

But who really cares which of the Clown Car Candidates wins MS?

Shannon

March 13th, 2012
7:00 pm

Speaking of a “test of political speech,” I hope you cover State Rep. Terry England, R-Winder.

Apparently, England believes two things with which most women (I think) would disagree. First, women shouldn’t be allowed to abort babies without brains (completely unviable fetuses) because cows and pigs carry nonviable fetuses to term.

Further, a “salt of the earth” constituent of England’s said that he’d be willing to stop chicken fighting if the legislature would just stop women from killing babies. It appears that England reported this approvingly.

But you know… that whole Republican war on women… that’s not real. It ain’t happening. No such thing. So women need to just be quiet and get back there with the pigs, chickens, and cows–’cause, you know, we should have the same rights they do.

arnold

March 13th, 2012
7:14 pm

Common sense is the excuse of Sarah Palin for being ignorant. Ignorance is no excuse for breaking the law, nor is it an excuse for slandering someone.

Shame

March 13th, 2012
8:21 pm

There is only one person in this mess that is not a political animal, deeply cares about the guard and its troops, and is as honest as someone could be. That person is BG Dudney. He should be reinstated and the politicians need to climb back under their rocks.

findog

March 13th, 2012
8:25 pm

td, ag,
McBerry want a court ruling to enshrine his name in history
thing is what the ego wants is typically bad for the soul

td

March 13th, 2012
9:18 pm

Aquagirl

March 13th, 2012
5:44 pm

I do not disagree with you about Mr. Berry is scum. All I am trying to say as that he is legally correct about his definition.

td

March 13th, 2012
9:21 pm

John

March 13th, 2012
5:27 pm

td: Rachel wasn’t 17. She was younger.

I think Jim said she was either 17 or 16. Either way it does not matter because the age of consent in Ga. is 16 and a person can not be convicted of statutory rape (child molester) when the girl or boy is either age.

Tom

March 13th, 2012
10:13 pm

If the judge rules for McPedo maybe he’ll award him damages of a puppy and a cellphone.

vuduchld

March 13th, 2012
10:17 pm

There are a plethora of idiot politicans in Jawja so I don’t see the big deal here. If this “chester” was that stupid to get with a teen nympho then he deserves what he gets. And if you dumbo citizens are stupid enough to vote for a “chester” then you deserve your just rewards also. It’s just that simple people.

Edward

March 13th, 2012
10:56 pm

Maybe McBerry can be Newt’s running mate.

RayNewt Ticket

March 14th, 2012
12:00 am

Awesome idea, Edward!!!

Buckhead Boy

March 14th, 2012
5:51 am

A hint for how this will ultimately end: That’s Emmet Bondurant representing the defendants. Emmet Jopling Bondurant, II!

zeke

March 14th, 2012
7:05 am

great job newt! in ms and al…..

zeke

March 14th, 2012
7:08 am

apparently crime pays in al, bachus won

jw

March 14th, 2012
7:38 am

In the corrupt sespool of the Georgia Bar, the only way to have justice is to talk to the GodFather on his daughter’s wedding day.
.
If that is not convenient or plausible, one EXECUTES justice……..never expects it.

clyde

March 14th, 2012
9:09 am

As the age of consent is 16,McBerry did not molest any child,therefore I say the charge of libel should stand.

Now if I could just think of a word that could describe my contempt for McBerry……..

Buzz G

March 14th, 2012
9:13 am

I’d love to be on that jury.

NinAtl

March 14th, 2012
9:52 am

Amen, Shannon! I hope the AJC will cover Rep. England’s offensive comments drawing parallels between Georgia women and farm animals, which show zero empathy for expectant mothers devastated by fetal death.