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