The Volokh Conspiracy

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Prosecution Under Criminal Libel Statute Struck Down 30 Years Before Leads to $100,000 Settlement

"[Anne King's ex-husband], [Washington County Sheriff's Department] Captain King, feeling upset and 'disrespected' over the post, contacted Washington County's magistrate court about initiating a criminal complaint against Ms. King."

|The Volokh Conspiracy |

I wrote about the prosecution last year, when a federal district court allowed the case to go forward:

On January 15, 2015, Anne King posted on Facebook: "That moment when everyone in your house has the flu and you ask your kid's dad to get them (not me) more Motrin and Tylenol and he refuses." Her post referred to Captain Corey King, the father of Ms. King's children, her ex-husband, and an officer with the Washington County Sheriff's Department.

Later that morning, Captain King, feeling upset and "disrespected" over the post, contacted Washington County's magistrate court about initiating a criminal complaint against Ms. King. Captain King then went to the courthouse office of Washington County Sheriff's Department Investigator Trey Burgamy, his "[p]retty good friend" or "close friend," to begin the process for having Ms. King arrested…. [King was arrested and put in a holding cell for 5½ hours, until her aunt bailed her out.-EV]

"Criminal defamation" is not a crime under the laws of Georgia, and it has not been since the Georgia Supreme Court struck it down as unconstitutional in 1982. In fact, the Georgia Law Enforcement Handbook and the Official Code of Georgia that Investigator Burgamy used for his reference specifically stated that the criminal defamation statute "has been held unconstitutional in the case of Williamson versus State 1982." … Not surprisingly, the charges against Ms. King were ultimately dismissed….

Investigator Burgamy … ignores his critical role in the patently absurd, and unconstitutional, decision to arrest Ms. King for criminal defamation. It is a constitutional violation to sign an affidavit for a warrant that a reasonably well-trained officer would have known failed to establish probable cause and that he should not apply for the warrant. Accordingly, when the evidence is construed in the light most favorable to her, Ms. King has shown that Investigator Burgamy violated her constitutional rights by signing the affidavit for her arrest warrant….

Captain King set out to have Ms. King arrested for a Facebook post he did not like. A jury could reasonably find Captain King, given his law enforcement background, knew that Ms. King's post did not provide probable cause for her arrest. A jury could reasonably find Captain King enlisted Investigator Burgamy (who was not a licensed attorney) to assist him in his quest. A jury could also reasonably find Investigator Burgamy, after researching the law, knew that posting on Facebook the way Ms. King did was not a crime and most certainly did not constitute criminal defamation. Further, a jury could reasonably find that Investigator Burgamy swore to the truth of facts he did not know to be true. Given this, a jury could reasonably find that the Defendants jointly prosecuted Ms. King without probable cause….

Now, the Atlanta Journal-Constitution (Christian Boone) reports (in a pretty detailed article),

Last week, after nearly five years, [Anne] King finally received justice in the form of a $100,000 settlement and an apology.

Thanks to John Steakley for the pointer to the Journal-Constitution article.