Weaver v. Millsaps

898 S.E.2d 239

WEAVER

v.MILLSAPS.

A23A1234

Court of Appeals of Georgia.

February 7, 2024

Justin Wilson Showalter, for Appellant.

Thomas MacIver Clyde, Jeffrey Howard Fisher, Atlanta, for Appellee.

Fuller, Senior Judge.

After Michael Weaver and others acting at his behest posted negative Google reviews of Valerie Millsaps’s frame shop business, she published a response, calling Weaver a Neo-Nazi and known felon who was targeting her business and had "threatened to kill other shop members." Weaver filed this libel action against Millsaps, who moved to dismiss the complaint under Georgia’s anti-SLAPP statute. The trial court granted the motion, finding that Millsaps’s statements were protected speech and that Weaver had failed to show a likelihood of prevailing on his claim. Weaver appeals these rulings, but we find no error and affirm.

[1, 2] "A ‘SLAPP,’ or ‘Strategic Lawsuit Against Public Participation,’ is a meritless lawsuit brought not to vindicate legally cognizable rights, but instead to deter or punish the exercise of constitutional rights of petition and free speech by tying up its target’s resources and driving up the costs of litigation." Johnson v. Cordtz, 366 Ga. App. 87, 87, 878 S.E.2d 603 (2022) (citation and punctuation omitted). Georgia’s anti-SLAPP statute, OCGA § 9-11-11.1, allows a defendant to move to strike or dismiss such a frivolous action "as an avenue for ending the suit quickly, summarily, and at minimal expense." Id. We review de novo a trial court’s ruling on an anti-SLAPP motion, considering the pleadings and affidavits submitted by the parties in the light most favorable to the nonmoving party. Id. See also Barnwell v. Trivedi, 366 Ga. App. 168, 170, 881 S.E.2d 16 (2022).

So viewed, the record shows that Millsaps and her husband own a framing shop in Cartersville. One day in June 2022 while Millsaps was driving her company van, she saw Weaver standing on the street holding a sign that appeared to be antisemitic. Millsaps "displayed [her] middle finger" at Weaver. Weaver, having seen the business logo on the van, published a post on his personal blog asking his followers to leave negative Google reviews of the business. Within 12 hours, multiple negative reviews appeared on the business’s Google review page. Weaver subsequently thanked his supporters who had left the reviews and stated, "I’m just getting warmed up! … Total f__king war!"

In response, Millsaps posted her own comment on her business’s Google review page:

My business is being targeted by a Neo Nazi and a member of the KKK. Please disregard the reviews. None of those profiles have ever entered my shop. I am being harassed and bullied by Michael [Weaver]. A known felon of hate crimes. He has targeted many businesses in our town. I refuse to be intimidated by him and his hate literature that he has left at my shop and my home. He has threatened to kill other shop members and flooded their Google reviews with harassing, untrue reviews. You can decide to try my shop and let my experience speak. Please note all date stamps are in a concentrated period of time. I choose LOVE over HATE. Thank you kindly.

According to Millsaps, the frame shop’s Google rating plummeted due to negative reviews left by Weaver and his followers, and the shop’s business declined.

Weaver sued Millsaps for libel, alleging that she had made knowingly false statements about his criminal record, his affiliation with the KKK, and his "terroristic threats to her customers." Millsaps moved to dismiss the complaint under the anti-SLAPP statute, arguing among other things that her statements were truthful protected speech made without actual malice.

In support of the motion, Millsaps presented her own affidavit, along with a verified answer and counterclaim, stating that Weaver is a member of the Neo-Nazi National Alliance, which advocates "new societies throughout the White world which are based on Aryan values and are compatible with the Aryan nature[,]" and World Church of the Creator, whose founder calls for "total war against the Jews and the rest of the goddamned mud races of the world[.]" Additionally, Weaver co-founded a Cartersville-based white supremacist group working to make America a "Eurocentric Christian Nation." Millsaps presented evidence that Weaver ad- vertises these affiliations to news reporters and on social media and his personal blog.

Millsaps averred that, before her personal encounter with Weaver, she was familiar with him, his white supremacist affiliations, and his distribution of antisemitic literature around Cartersville. She knew that Weaver "had a history of violent behavior," including a prior aggravated assault conviction for pepper-spraying an African American man he encountered on the street.¹ Millsaps also had heard that Weaver had targeted other Cartersville businesses, including a gym that had kicked him out for posting antisemitic flyer inside. According to Millsaps’s verified answer, Weaver and his associates left thousands of negative Google reviews for the gym, vandalized the premises, and made repeated harassing phone calls, including one in which the caller threatened to kill the gym owner, prompting the owner to call the police.

Weaver submitted a verified response to Millsaps’s filings, conceding that he had engaged in "review bombing" on her business’s Google page, but denying that he had personally threatened to kill anyone, that he was a member of the KKK, or that he had been convicted of a hate crime. Following a hearing, the trial court granted Millsaps’s motion to dismiss, ruling that her post was protected speech under the anti-SLAPP statute because it addressed an issue of public concern. The court also ruled that Weaver was unlikely to prevail on his claim because Millsaps’s statements were substantially true and she did not act with actual malice. Finally, the court awarded attorney fees to Millsaps. Weaver appeals.

1. Weaver argues that the trial court erred by determining that Millsaps’s post was protected speech. We disagree.

[3–6] In analyzing an anti-SLAPP motion to dismiss, the trial court first decides whether the moving party "has made a threshold showing that the challenged claim is one arising from protected activity." Wilkes & McHugh, P. A. v. LTC Consulting, 306 Ga. 252, 262 (2) (b), 830 S.E.2d 119 (2019) (citation and punctuation omitted). The moving party meets this burden by "demonstrating that the act underlying the challenged claim could reasonably be construed as fitting within one of the categories spelled out in [OCGA § 9-11-11.1 (c) (1)-(4)]." Id. (citation and punctuation omitted). If the moving party makes a threshold showing of protected activity, then the court proceeds to the second step of the analysis and determines whether the plaintiff has established a reasonable probability that he will prevail on the merits of his claim. Id. "A claim that satisfies both prongs of the anti-SLAPP statute is subject to being stricken." Joshua David Mellberg, LLC v. Impact Partnership, 355 Ga. App. 691, 693, 844 S.E.2d 223 (2020).

[7] In the trial court, Millsaps argued that her post was protected speech because it fell within OCGA § 9-11-11.1 (c) (3), which covers "[a]ny written or oral statement … made in a place open to the public or a public forum in connection with an issue of public interest or concern." Weaver concedes on appeal that he is "a public figure," and it is undisputed that Millsaps’s challenged comments were made in response to a "war" that Weaver initiated on a public forum. See Lane Dermatology v. Smith, 360 Ga. App. 370, 378-379 (2), 861 S.E.2d 196 (2021) (in determining whether a matter is of public concern, courts consider "whether the subject of the speech or activity was a person or entity in the public eye …; and whether the activity occurred in the context of an ongoing controversy, dispute or discussion … ") (citation and punctuation omitted). Thus, Millsaps carried her burden of showing that her post "could reasonably be construed as fitting within" OCGA § 9-11-11.1 (c) (3), and the trial court did not err by concluding that it was protected speech under the anti-SLAPP statute.

2. Weaver also contends that the trial court erred by finding no reasonable probability that he would prevail on his claim. Again, we disagree.

[8–10] To meet his burden of showing a probability that he would prevail on the merits, Weaver needed to "demonstrate that the complaint is both legally sufficient and...