Oskouei v. Matthews

¶1NOTICE: 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.

¶2In the Supreme Court of Georgia

¶3 Decided: February 18, 2025

¶4 S24G0335. OSKOUEI v. MATTHEWS.

¶5 WARREN, Justice.

¶6 Dr. Armin Oskouei, the owner of two medical facilities, filed a

¶7lawsuit alleging that Zachary Matthews, a defense attorney who

¶8represented clients in cases that tangentially involved the medical

¶9facilities, made defamatory statements suggesting that Oskouei

¶10performed “illegal” surgeries, among other things. Matthews moved

¶11to strike the defamation lawsuit pursuant to Georgia’s anti-

¶12Strategic Lawsuits Against Public Participation (“anti-SLAPP”)

¶13statute, OCGA § 9-11-11.1, which allows a trial court to strike

¶14certain claims based on a person’s right of petition or free speech

¶15when there is no “probability that the nonmoving party will prevail

¶16on the claim.” OCGA § 9-11-11.1 (b) (1). The trial court denied the

¶17motion to strike, but the Court of Appeals reversed that ruling in Matthews v. Oskouei, 369 Ga. App. 568 (894 SE2d 141) (2023). The

¶18Court of Appeals held that Oskouei could not establish a probability

¶19of prevailing on his defamation claims because he had not overcome

¶20Matthews’s defense of conditional privilege. Id. at 573-575. In this

¶21respect, the court determined that Oskouei had not established that

¶22Matthews acted with “actual malice,” such that “Matthews knew

¶23that his statements were false or that he made them with a reckless

¶24disregard for the truth.” Id. at 575.

¶25 We granted Oskouei’s petition for certiorari to address an issue

¶26of first impression in this Court: whether a plaintiff is required to

¶27show that the defendant acted with “actual malice” (i.e., knowledge

¶28of falsity or reckless disregard for the truth) to defeat his defense of

¶29conditional privilege. We conclude that the “actual malice” standard

¶30does not apply in such cases. As we explain below, under OCGA §

¶3151-5-9, to overcome a conditional privilege, a plaintiff must show

¶32that the defendant used the privilege “merely as a cloak for venting

¶33private malice and not bona fide in promotion of the object for which

¶34the privilege is granted.” And in light of the legal and historical

¶35 2 context of the text of OCGA § 51-5-9—which was originally codified

¶36in 1860—we conclude that a plaintiff meets his burden under that

¶37statute by establishing that the defendant’s claim of privilege is a

¶38sham and that he made the allegedly defamatory statement with ill

¶39will toward the plaintiff or with an intent to injure him.

¶40 That is not the “actual malice” standard that the Court of

¶41Appeals applied in this case. It instead applied the “actual malice”

¶42standard the United States Supreme Court first announced in New

¶43York Times Co. v. Sullivan, 376 U.S. 254 (84 SCt 710, 11 LE2d 686)

¶44(1964)—a constitutional standard that applies only in certain

¶45defamation cases. In particular, the “actual malice” standard does

¶46not pertain to defamation cases brought by private-figure plaintiffs

¶47relating to statements that do not involve matters of public concern.

¶48Because the Court of Appeals incorrectly imported the “actual

¶49malice” standard into OCGA § 51-5-9 in this case, we vacate the

¶50Court of Appeals’s opinion and remand the case to that court for

¶51further proceedings consistent with this opinion. We also overrule

¶52several other Court of Appeals cases holding that a plaintiff must

¶53 3 establish “actual malice” under New York Times to overcome a

¶54conditional-privilege defense under OCGA § 51-5-9.

¶55 1. Background and Procedural History

¶56 (a) Oskouei’s Defamation Claims

¶57 As summarized by the Court of Appeals:

¶58 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.

¶59 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.

¶60 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

¶61 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.

¶62 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:

¶63“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.”

¶64(Emphasis in original.)

¶65 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

¶66 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.

¶67Matthews, 369 Ga. App. at 568-569.

¶68 In January 2022, Oskouei filed a lawsuit against Matthews in

¶69Fulton County State Court, alleging claims of slander and libel, as

¶70well as slander per se and libel per se, such that damages were

¶71presumed, see OCGA § 51-5-4 (b), with respect to the statements he

¶72made to Byrd and Adhisurya. The complaint also sought

¶73compensatory and punitive damages, attorney fees, and costs of

¶74litigation. In March 2022, Matthews filed a motion to strike

¶75Oskouei’s complaint under the anti-SLAPP statute, which required

¶76Matthews to make a threshold showing that the challenged claim is

¶77one “arising from” protected activity; if so, Oskouei would then be

¶78required to establish that there was “a probability that [he] will

¶79prevail on the claim.” OCGA § 9-11-11.1 (b) (1).1 Matthews

¶80 1 OCGA § 9-11-11.1 (b) (1) says:

¶81 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

¶82 6 contended, among other things, that Oskouei could not establish a

¶83probability that he would prevail on his defamation claims because

¶84the allegedly defamatory statements were conditionally privileged.

¶85In his responses to the motion to strike, Oskouei argued, among

¶86other things, that the statements were not conditionally privileged

¶87because Matthews lacked a good-faith belief in the truth of the

¶88statements and because the statements were “malicious.”

¶89 In November 2022, the trial court issued an order denying

¶90Matthews’s anti-SLAPP motion to strike. The court concluded

¶91under the first part of the anti-SLAPP analysis that Matthews had

¶92established that Oskouei’s defamation claims arose from protected

¶93activity under OCGA § 9-11-11.1 (c) (2). 2 And under the second part

¶94 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.

¶95 2 OCGA § 9-11-11.1 (c) (2) says that “the term ‘act in furtherance of the

¶96person’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),

¶97 7 of the analysis, the court determined that Oskouei had established

¶98a probability of prevailing on his defamation claims. As pertinent to

¶99the issue of whether the allegedly defamatory statements were

¶100conditionally privileged, the trial court noted that the cease and

¶101desist order said that Oskouei could appeal the Department’s

¶102findings and then determined that “a reasonable jury could infer

¶103that the findings were not final and therefore [Matthews] did not

¶104have a good faith basis to make the alleged statements.” The court

¶105also concluded that the question of whether the statements were

¶106privileged “is within the province of the jury.”

¶107 (b) The Court of Appeals’s Decision

¶108 Matthews appealed, and in October 2023, the Court of Appeals

¶109reversed the denial of the anti-SLAPP motion to strike. See

¶110Matthews, 369 Ga. App. at 576. The Court of Appeals noted that it

¶111would not review the trial court’s finding as to the first part of the

¶112analysis of an anti-SLAPP motion—that the allegedly defamatory

¶113includes “[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

¶114filed a cross-appeal challenging that finding. See id. at 571. The

¶115court accordingly turned to the second part of the test: whether

¶116Oskouei had established a probability of prevailing on his

¶117defamation claims. See id. at 572.

¶118 In this respect, the Court of Appeals set forth the elements of

¶119a defamation claim under Georgia law:

¶120 (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.

¶121Matthews, 369 Ga. App. at 572 (citation, punctuation, and emphasis

¶122omitted). The court pretermitted whether Oskouei had established

¶123the first, third, and fourth elements and concluded that he had not

¶124shown a probability of prevailing on his claims because Matthews’s

¶125allegedly defamatory statements were conditionally privileged as a

¶126matter of law. See id. at 568. Noting that although “the issue of

¶127conditional privilege is typically a question for the jury,” the court

¶128also stated that privilege can apply “as a matter of law in clear and

¶129 9 certain cases.” Id. at 573. It then determined that Matthews’s

¶130statements to Byrd and Adhisurya fell within the ambit of OCGA

¶131§ 51-5-7 (7), which deems conditionally privileged “[c]omments of

¶132counsel, fairly made, on the circumstances of a case in which he or

¶133she is involved and on the conduct of the parties in connection

¶134therewith,” because the statements “were made in the course of

¶135pending litigation, and concerned the relative settlement values of

¶136the claims of opposing counsels’ clients.” Id.

¶137 The Court of Appeals outlined the elements Matthews was

¶138required to establish to show that the allegedly defamatory

¶139statements were conditionally privileged: that “‘(a) [he] acted in good

¶140faith; (b) in connection with an interest to be upheld; (c) the

¶141statement was properly limited in its scope and occasion; and (d)

¶142publication was made to proper persons.’” Matthews, 369 Ga. App.

¶143at 574 (citation omitted). After reciting that “‘[s]tatements are

¶144deemed to have not been made in good faith, but rather with malice,

¶145if the evidence shows in a clear and convincing manner that a

¶146defendant in fact entertained serious doubts as to the truth of his

¶147 10 statements,’” the court determined that Matthews made the

¶148statements in good faith because there was no evidence of any such

¶149doubts; rather, Matthews relied on the cease and desist order in

¶150making the statements. Id. (citation omitted). The court also

¶151concluded, as a matter of law, that Matthews had established the

¶152other three elements of conditional privilege, such that he had

¶153“made a prima facie showing that the statements at issue were

¶154conditionally privileged.” Id. at 574-575.

¶155 The Court of Appeals then said that “[t]o defeat Matthews’s

¶156privilege defense, Oskouei bears the burden to show that Matthews

¶157acted with actual malice,” Matthews, 369 Ga. App. at 575, citing its

¶158own precedent and OCGA § 51-5-9, which says, “In every case of

¶159privileged communications, if the privilege is used merely as a cloak

¶160for venting private malice and not bona fide in promotion of the

¶161object for which the privilege is granted, the party defamed shall

¶162have a right of action.” The court stated that Oskouei could meet

¶163this burden by establishing by clear and convincing evidence that

¶164“Matthews knew that his statements were false or that he made

¶165 11 them with a reckless disregard for the truth.” Id. The court

¶166determined that Oskouei had not pointed to any evidence that

¶167Matthews knew at the time he made the statements that Oskouei’s

¶168credentials were unblemished or that the surgery center was not

¶169illegally performing surgeries after the cease and desist order

¶170issued. See id. Concluding that Oskouei had thus failed to show

¶171actual malice to defeat Matthews’s defense of conditional privilege,

¶172the Court of Appeals held that the trial court erred by finding that

¶173there was a probability that Oskouei would prevail on his

¶174defamation claims, reversed the denial of Matthews’s anti-SLAPP

¶175motion to strike, and remanded the case to the trial court for it to

¶176consider Matthews’s request for attorney fees and litigation

¶177expenses. See id. at 576.

¶178 Oskouei filed a petition for certiorari in this Court, arguing,

¶179among other things, that the Court of Appeals erred by requiring

¶180him to show that Matthews acted with “actual malice” as defined in

¶181New York Times to defeat Matthews’s conditional-privilege defense

¶182because OCGA § 51-5-9 requires only a showing of “private malice.”

¶183 12 We granted the petition to address that issue. 3

¶184 2. The Undisputed Legal Principles that Apply to this Case

¶185 The parties do not dispute the legal framework that applies to

¶186the analysis of Matthews’s anti-SLAPP motion to strike, the well-

¶187settled elements of a claim for defamation, or the elements required

¶188for a defendant to establish that an allegedly defamatory statement

¶189is conditionally privileged. We therefore briefly set forth these

¶190undisputed legal principles before addressing the issue at the crux

¶191of this case: what a plaintiff must establish to defeat a showing of

¶192conditional privilege under OCGA § 51-5-9.

¶193 (a) The Analysis of an Anti-SLAPP Motion to Strike

¶194 3 We did not grant Oskouei’s petition for certiorari to address the Court

¶195of 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

¶196strike involves two steps. See OCGA § 9-11-11.1 (b) (1). See also

¶197American Civil Liberties Union, Inc. v. Zeh, 312 Ga. 647, 650 (864

¶198SE2d 422) (2021); Wilkes & McHugh, P.A. v. LTC Consulting, L.P.,

¶199306 Ga. 252, 261 (830 SE2d 119) (2019). First, the court must

¶200determine whether the party filing the anti-SLAPP motion (here,

¶201Matthews) “has made a threshold showing that the challenged claim

¶202is one arising from protected activity.” Zeh, 312 Ga. at 650 (citations

¶203and punctuation omitted). If so, the court must “decide whether the

¶204plaintiff has established that there is a probability that [he] will

¶205prevail on the claim.” Id. (citations and punctuation omitted).4

¶206 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

¶207 14  With respect to the first step, the trial court concluded here

¶208that Oskouei’s defamation claims arose from protected activity

¶209under OCGA § 9-11-11.1 (c) (2), and as noted above, that conclusion

¶210is not at issue in this appeal. See Wilkes, 306 Ga. at 262 (explaining

¶211that a challenged claim arises from protected activity when it could

¶212reasonably be construed as fitting within one of the categories set

¶213forth in OCGA § 9-11-11.1 (c)). Thus, the dispositive issue on appeal

¶214before this Court is whether Oskouei has met his burden of

¶215establishing under the second step of the anti-SLAPP analysis that

¶216there is a probability that he will prevail on his defamation claims.

¶217 (b) The Elements of a Defamation Claim

¶218 In Georgia, a claim for defamation has four elements:

¶219 (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.

¶220Zeh, 312 Ga. at 650 (citation and punctuation omitted). As discussed

¶221 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

¶222establish a probability of prevailing on his defamation claims

¶223because he could not prove the second element: an unprivileged

¶224communication to a third party. See Matthews, 369 Ga. App. at 570.

¶225 Georgia law recognizes two kinds of privileged

¶226communications: absolute and conditional. 5 Absolutely privileged

¶227communications, such as allegations contained in pleadings filed in

¶228court, cannot form the basis for a defamation action. See OCGA

¶229§ 51-5-8 (providing in pertinent part that “[a]ll charges, allegations,

¶230and averments contained in regular pleadings filed in a court, which

¶231are pertinent and material to the relief sought, whether legally

¶232sufficient to obtain it or not, are privileged”). See also, e.g., Saye v.

¶233Deloitte & Touche, LLP, 295 Ga. App. 128, 131 (670 SE2d 818) (2008)

¶234(explaining that an absolutely privileged statement “‘entirely free[s]

¶235 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

¶236or the publication’”) (citation omitted).

¶237 By contrast, when a defendant makes a prima facie showing

¶238that an allegedly defamatory statement is conditionally privileged,

¶239the burden shifts to the plaintiff to make an additional showing of

¶240proof to overcome the privilege defense. See Saye, 295 Ga. App. at

¶241131. In this respect, OCGA § 51-5-7 sets forth the types of

¶242communications that are conditionally privileged.6 Once the

¶243 6 OCGA § 51-5-7 says:

¶244 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

¶245 17 defendant establishes that the allegedly defamatory statement falls

¶246within a category of communications listed in OCGA § 51-5-7, he

¶247bears the burden of showing “‘good faith, an interest to be upheld, a

¶248statement properly limited in its scope, a proper occasion, and

¶249publication to proper persons.’” Zeh, 312 Ga. at 661 n.16 (citation

¶250omitted). The plaintiff then bears the burden of defeating the

¶251defendant’s defense of conditional privilege. See, e.g., Saye, 295 Ga.

¶252App. at 133. The plaintiff can do so by proving that “the privilege is

¶253used merely as a cloak for venting private malice and not bona fide

¶254in promotion of the object for which the privilege is granted.” OCGA

¶255§ 51-5-9.

¶256 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

¶257 The question we must answer in this case is whether the

¶258 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

¶259malice” defined by the United States Supreme Court in New York

¶260Times—that is, knowledge of falsity or reckless disregard for truth.

¶261The short answer is no.

¶262 The longer answer involves analysis of the original public

¶263meaning of the phrase “private malice” as it is used in OCGA § 51-

¶2645-9. In considering the meaning of OCGA § 51-5-9, “‘we must afford

¶265the statutory text its plain and ordinary meaning, we must view the

¶266statutory text in the context in which it appears, and we must read

¶267the statutory text in its most natural and reasonable way, as an

¶268ordinary speaker of the English language would.’” Seals v. State,

¶269311 Ga. 739, 740 (860 SE2d 419) (2021) (citation omitted),

¶270disapproved on other grounds by Gonzales v. State, 315 Ga. 661 (884

¶271SE2d 339) (2023). “The ordinary public meaning of statutory text

¶272that matters is the meaning the statutory text had at the time it was

¶273enacted.” Id. (considering the original public meaning of a statute).

¶274Cf. Olevik v. State, 302 Ga. 228, 235 (806 SE2d 505) (2017)

¶275(explaining that “there are few principles of Georgia law more

¶276 19 venerable than the fundamental principle that a constitutional

¶277provision means today what it meant at the time that it was

¶278enacted”). Determining this meaning requires us to consider the

¶279text of the statute in the context in which it was originally enacted.

¶280See Seals, 311 Ga. at 740. “‘The primary determinant of a text’s

¶281meaning is its context, which includes the structure and history of

¶282the text and the broader context in which that text was enacted,

¶283including statutory and decisional law that forms the legal

¶284background of the written text.’” Id. (citation omitted).

¶285 The text of what is now OCGA § 51-5-9 was originally enacted

¶286as part of Georgia’s first Code in 1860. See Georgia Code of 1860 §

¶2872923 (effective Jan. 1, 1863). Accordingly, in determining the

¶288original public meaning of OCGA § 51-5-9, we look to the text of the

¶289statute in the context of its first enactment in 1860. See Seals, 311

¶290Ga. at 740. Our search for the meaning of statutory text “always

¶291begins with the text itself.” Sons of Confederate Veterans v. Henry

¶292County Bd. of Commissioners, 315 Ga. 39, 47 (880 SE2d 168) (2022)

¶293(conducting an original public meaning analysis of text that was

¶294 20 carried forward from the Georgia Constitution of 1798). Although

¶295we typically focus on the ordinary meaning the text had at the time

¶296it was enacted, see, e.g., Seals, 311 Ga. at 740, as explained more

¶297below, in this case, it is apparent that “private malice” is a legal term

¶298of art that around the time the text of the first version of OCGA §

¶29951-5-9 was codified in 1860, was often used in the legal context of

¶300explaining what a plaintiff must show to overcome a defendant’s

¶301defense of conditional privilege in a defamation case. See, e.g., JOHN

¶302TOWNSHEND, A TREATISE ON THE WRONGS CALLED SLANDER AND

¶303LIBEL, AND ON THE REMEDY BY CIVIL ACTION FOR THOSE WRONGS,

¶304TOGETHER WITH A CHAPTER ON MALICIOUS PROSECUTION § 225 (4th

¶305ed. 1890) (“TOWNSHEND”) (explaining that a plaintiff can defeat a

¶306conditional-privilege defense in a defamation case by showing that

¶307the defendant “avail[ed] himself of his situation to gratify private

¶308malice by uttering slanderous expressions”).7 So to determine the

¶309 7 As explained in footnote 11 below, although the legal showing necessary

¶310to 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

¶311 21 meaning of the term “private malice” in the earliest version of OCGA

¶312§ 51-5-9, we look to the legal usage of that term in the context in

¶313which the statute was first enacted in 1860.

¶314 Generally, a key aspect in assessing the context in which a

¶315statute was enacted is the body of pre-enactment decisions of this

¶316Court interpreting the meaning of certain text that the drafters of

¶317the statute chose to use. Cf. Olevik, 302 Ga. at 236. But prior to

¶3181860, there was little Georgia appellate decisional law about civil

¶319defamation principles, let alone conditional privilege to claims of

¶320defamation—likely because this Court was established only 15 years

¶321used. 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

¶322time. Indeed, the parties have not pointed us to, and we have not

¶323found, any Georgia decisional law prior to 1860 that provides

¶324significant clues about the meaning of the “private malice” required

¶325to defeat a conditional privilege.

¶326 Thus, we look for guidance to other legal authority that existed

¶327around the time OCGA § 51-5-9 was enacted in 1860 that

¶328interpreted the term of art “private malice” within the context of

¶329overcoming a conditional-privilege defense to a defamation claim.

¶330Cf. Olevik, 302 Ga. at 236 (explaining that constitutions and

¶331statutes “‘are properly to be expounded in the light of conditions

¶332existing at the time of their adoption’”) (citation omitted). In so

¶333doing, we look to the body of decisional law regarding conditional

¶334privileges that developed in England around the nineteenth century

¶335(around the time OCGA § 51-5-9 was codified in Georgia in 1860),8

¶336 8 It appears that although certain civil defamation principles developed

¶337at 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

¶338 23 cases from American states from around that time that carried

¶339forward the legal principles set forth in those English defamation

¶340decisions, and prominent nineteenth century treatises describing

¶341and analyzing the legal doctrine of conditional privilege as it applied

¶342in both England and in American states in the early nineteenth

¶343century. Although such authority is not binding on this Court, it

¶344can be persuasive evidence of the original public meaning of OCGA

¶345§ 51-5-9—the meaning that the drafters of the first version of OCGA

¶346§ 51-5-9 understood that provision to have when it was originally

¶347codified in 1860—especially to the extent that authority used and

¶348interpreted language similar to (and within the same legal context

¶349of) the text that the drafters of the first version of OCGA § 51-5-9

¶350chose to use in that statute. Cf. Elliott v. State, 305 Ga. 179, 193-

¶351195 (824 SE2d 265) (2019) (examining the backdrop of English

¶352THEIR 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

¶353meaning of a provision in the Georgia Constitution of 1877).

¶354 (a) The Legal Backdrop Against Which OCGA § 51-5-9 Was Enacted

¶355 (i) Malice in Law and Malice in Fact

¶356 In England and in the American states around the early

¶357nineteenth century, defamation was a strict-liability tort that did

¶358not require proof of falsity, fault, or actual damages. See Mathis v.

¶359Cannon, 276 Ga. 16, 20 (573 SE2d 376) (2002). See also C.G.

¶360ADDISON, et al., WRONGS AND THEIR REMEDIES: A TREATISE ON THE

¶361LAW OF TORTS § 1087-1089 (4th ed. 1882) (“ADDISON”). “[T]he law

¶362implie[d] malice from the very fact of the publication of the

¶363defamatory matter.” ADDISON, supra, at § 1090. This sort of legal

¶364“malice” (or “malice in law”) meant “a wrongful act, done

¶365intentionally, without just cause or excuse,” and was distinct from

¶366“malice in fact,” which in accordance with the general

¶367understanding of the term “malice,” meant “ill will against a

¶368person,” Bromage v. Prosser, 107 Eng. Rep. 1051, 1054 (1825), or an

¶369intent “to injure,” Hart v. Reed, 40 Ky. 166, 169 (1840). See also, 25 e.g., ADDISON, supra, at § 1090; TOWNSHEND, supra, at §§ 87, 209.

¶370Because legal malice was presumed in defamation cases, a

¶371defendant was strictly liable for publishing a defamatory

¶372statement—even in the absence of “malice in fact” (that is, “ill will

¶373against a person” or an intent “to injure”)—unless he could establish

¶374as his defense that the statement was true or that a privilege

¶375applied. See ADDISON, supra, at § 1089.9

¶376 (ii) Privileges Applicable to Claims of Defamation

¶377 Early nineteenth century English and American law

¶378recognized absolute privileges and conditional privileges. See

¶379TOWNSHEND, supra, at § 209. The latter applied when an allegedly

¶380defamatory statement was considered reasonably necessary to

¶381further a particular societal interest. See ADDISON, supra, at § 1091

¶382(noting that a privileged communication “is fairly made by one

¶383person to another in the discharge of some public or private duty,

¶384 9 The truth of an allegedly defamatory statement was a complete defense

¶385in 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).

¶386 26 whether legal, moral, or social, or in the conduct of his own affairs

¶387in matters where his interest is concerned”). In this respect,

¶388conditional privileges attached to many sorts of “occasion[s],” or

¶389types of communications, so long as the statement was made for the

¶390protection of one’s own legitimate interests or the legitimate

¶391interests of another person. TOWNSHEND, supra, at §§ 208-209. See

¶392also, e.g., Dunn v. Winters, 21 Tenn. 512, 513 (1841). 10

¶393 A conditional privilege prevented the inference of legal malice

¶394and afforded the defendant a “qualified defen[s]e.” Toogood v.

¶395Spyring, 149 Eng. Rep. 1044, 1050 (1834). See also, e.g., Lewis v.

¶396Chapman, 16 N.Y. 369, 373 (1857). In this sense, if a defendant

¶397established that an allegedly defamatory statement was

¶398conditionally privileged, the presumption of legal malice was

¶399rebutted, such that the conditional-privilege defense constituted an

¶400 10 As pertinent to the circumstances in this case, we note that around the

¶401nineteenth 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

¶402defamatory publication. See TOWNSHEND, supra, at § 209.

¶403 A plaintiff could defeat a defense of conditional privilege,

¶404however, by establishing that the defendant acted with malice in

¶405fact when he made the allegedly defamatory statement. See

¶406Toogood, 149 Eng. Rep. at 1050 (explaining that the “qualified

¶407defen[s]e” provided by a conditional privilege “depend[ed] upon the

¶408absence of actual malice”); TOWNSHEND, supra, at § 209 (noting that

¶409a conditional privilege could be “destroy[ed]” if the plaintiff “prove[d]

¶410that there was malice in fact”). As mentioned above, a showing of

¶411“malice in fact” generally required a showing of something like “ill

¶412will” or “an intent to injure.” ADDISON, supra, at § 1090;

¶413TOWNSHEND, supra, at § 209.11 Such a showing by the plaintiff

¶414 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

¶415 28 established that the defendant’s assertion of conditional privilege

¶416(i.e., that he made the allegedly defamatory statement with the bona

¶417fide intent of protecting a legitimate societal interest) was a pretense

¶418to cover up his true motive in making the statement: an intent to

¶419injure the plaintiff. See, e.g., Wakefield v. Smithwick, 49 N.C. 327,

¶420330 (1857) (explaining that to defeat a conditional privilege, “the

¶421burden is upon the plaintiff to prove that [the allegedly defamatory

¶422statement] was not made bona fide in consequence of such relation,

¶423but out of malice, and that the existence of such relation was used

¶424as a mere cover for [the defendant’s] malignant designs”) (italics in

¶425original); Gilpin v. Fowler, 156 Eng. Rep. 263, 267-268 (1854)

¶426(holding that there was evidence of malice to defeat a conditional

¶427privilege where the defendant, a parson who oversaw a school,

¶428distributed a letter to his parishioners containing defamatory

¶429statements about a schoolmaster at a rival school under the pretext

¶430towards 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).

¶431 Specifically, a plaintiff in early nineteenth century England

¶432and the American states could establish that the defendant acted

¶433with ill will or an intent to injure, such that his claim of conditional

¶434privilege was a pretext, by offering evidence of the defendant’s

¶435improper motive in making the statement. See TOWNSHEND, supra,

¶436at § 245. In determining whether the defendant’s motive was to

¶437protect a legitimate interest (and thus bona fide) or not (and thus a

¶438pretense to hide his true motive of malice), courts generally

¶439considered all of the circumstances in a case, including for instance,

¶440evidence showing that the allegedly defamatory statement “was

¶441false within the knowledge of the publisher; or . . . showing a bad

¶442motive in making the publication, as that it was made more publicly

¶443than was necessary to protect the interests of the parties concerned,

¶444or that it contained matter not relevant to the occasion, or that the

¶445publisher entertained ill-will toward the person whom the

¶446publication concerned.” Id. Whether a plaintiff had established

¶447malice to defeat a defense of conditional privilege was generally a

¶448 30 question for the jury. See, e.g., Wakefield, 49 N.C. at 331; Gilpin,

¶449156 Eng. Rep. at 268.

¶450 In sum, the early nineteenth century English and American

¶451law cited above recognized a conditional privilege for statements

¶452made with a bona fide view to protect a legitimate societal or

¶453personal interest. But a plaintiff could defeat such a defense by

¶454showing that the defendant used the privilege as a pretense to hide

¶455his true motive of malice. To that end, if the plaintiff could establish

¶456that the defendant made the allegedly defamatory statement with

¶457ill will or an intent to injure the plaintiff—rather than with the

¶458honest purpose of promoting a legitimate interest—the privilege

¶459was lost. 12

¶460 12 In 1845, the United States Supreme Court reiterated these principles

¶461in 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

¶462 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

¶463 The text that is now found in OCGA § 51-5-9 was first codified

¶464in Section 2923 of the Georgia Code of 1860, which said: “In every

¶465case of privileged communications, if the privilege is used merely as

¶466a cloak for venting private malice, and not bona fide in promotion of

¶467the object for which the privilege is granted, the party defamed has

¶468malice” 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 commonlaw basis of federal judicial immunity that also formed the basis for Georgia’s judicial immunity doctrine”).

¶469 32 a right of action.” (Italics in original). See also Code of 1860 §§ 2917

¶470(explaining that in defamation cases, “malice is inferred from the

¶471character of the charge” and that “in cases of privileged

¶472communications,” proof rebutting the inference of malice barred

¶473recovery); 2922 (listing certain types of conditionally privileged

¶474communications).13 The text of Section 2923, which has been

¶475included in substantially similar form in every subsequent version

¶476of the Code, is consonant with the traditional English and early

¶477American legal rule regarding the showing required to defeat a

¶478conditional-privilege defense discussed above, and nothing in the

¶479text of Section 2923 suggests that it altered that established rule.

¶480We therefore conclude that Section 2923 codified the rule that a

¶481 13 Although not at issue here, we note that this Court has understood the

¶482phrase “[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

¶483establishes that the defendant made the allegedly defamatory

¶484statement with ill will or an intent to injure rather than with the

¶485honest purpose of promoting a legitimate interest.

¶486 Consistent with this conclusion, the first Georgia decisions

¶487applying the predecessors to OCGA § 51-5-9 set forth the principle

¶488that a plaintiff can defeat a conditional-privilege defense by showing

¶489that the defendant acted with ill will or an intent to injure the

¶490plaintiff when he made the allegedly defamatory statement. For

¶491example, in Lester v. Thurmond, 51 Ga. 118 (1874), the plaintiff sued

¶492the defendant, a lawyer, for defamation based on a statement that

¶493he made during a criminal trial. See id. at 119. Explaining that the

¶494defendant’s statement was “privileged” because it was made “in the

¶495discharge of his duty in the regular course of judicial proceedings in

¶496the courts,” this Court determined that the plaintiff was required to

¶497prove “actual malice” or “express malice,” meaning that he must

¶498establish that the defendant “avail[ed] himself of his position as an

¶499advocate maliciously to slander another by uttering words wholly

¶500 34 unjustifiable.” Id. at 120 (emphasis in original). Concluding that

¶501the plaintiff had failed to submit any evidence that the defendant’s

¶502statement was “spoken maliciously,” this Court upheld the jury’s

¶503verdict for the defendant. Id. (emphasis in original). 14 See also

¶504Pearce v. Brower, 72 Ga. 243, 244-246 (1884) (reversing the trial

¶505court’s grant of the defendant’s motion for a “non-suit” on the

¶506grounds that the allegedly defamatory statement was conditionally

¶507privileged and the plaintiff had failed to overcome the privilege by

¶508“show[ing] malice” because that issue was for the jury to decide, and

¶509noting that on remand, if the statement was “written in good faith,

¶510without malice, and with no intent to injure the reputation of the

¶511plaintiff,” the conditional-privilege defense would apply, “[b]ut if the

¶512privilege was used merely as a cloak for venting private malice, and

¶513not bona fide in promotion of the object for which the privilege is

¶514 14 The text of OCGA § 51-5-8, which as discussed above, provides that

¶515“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

¶516v. Forehand, 89 Ga. 520, 523-524 (16 SE 262) (1892) (explaining that

¶517a conditionally privileged statement is “made with the bona fide

¶518intent on the part of the defendant to protect his own interest in

¶519[the] matter” and is “prima facie protected,” and “this protection

¶520remains until overcome by proof of express malice; and, though the

¶521language, if violent or excessive, may amount to proof of express

¶522malice, it should be left to the jury to say whether it amounts to such

¶523proof or not”) (italics in original).

¶524 Throughout the first half of the twentieth century, Georgia

¶525appellate courts continued to follow the rule that a plaintiff, to

¶526defeat a defense of conditional privilege, must establish that the

¶527defendant acted with ill will or an intent to injure. See, e.g., Holmes

¶528v. Clisby, 118 Ga. 820, 825 (45 SE 684) (1903) (explaining that the

¶529question of conditional privilege is “dependent upon the intention

¶530with which [the allegedly defamatory statement] was published. If

¶531bona fide, with the sole purpose of protecting himself, it would be; if

¶532otherwise, it would not” and noting that the issue should be

¶533 36 determined by a jury); Sheftall v. Central of Georgia Railway

¶534Company, 123 Ga. 589, 592-593 (51 SE 646) (1905) (citing various

¶535provisions of TOWNSHEND, supra, in explaining the defense of

¶536conditional privilege; setting forth the elements of conditional

¶537privilege that Georgia appellate courts still apply today—“good

¶538faith, an interest to be upheld, a statement limited in its scope to

¶539this purpose, a proper occasion and publication in a proper manner

¶540and to proper parties only”; and noting that the privilege would be

¶541lost if it “was used as a cloak for venting malice”); Atlanta News

¶542Publishing Co. v. Medlock, 123 Ga. 714, 719-720 (51 SE 756) (1905)

¶543(explaining that a conditional privilege could be defeated by “actual

¶544malice” or “express malice”); Gillis v. Powell, 129 Ga. 403, 409-411

¶545(58 SE 1051) (1907) (noting that “the law will not tolerate [the

¶546conditional privilege] being used to vent the malice of any

¶547individual, even though he may be one who thinks he has been

¶548grievously wronged” and that if the defendant made the allegedly

¶549defamatory statement “in good faith and without malice, and to the

¶550proper persons, at proper times and places, he would be entitled to

¶551 37 a verdict in his favor. On the other hand, if it should appear that he

¶552was animated by malice in his statements, the plaintiff would be

¶553entitled to recover”); Nicholson v. Dillard, 137 Ga. 225, 231 (73 SE

¶554382) (1911) (explaining that a statement is conditionally privileged

¶555if the defendant makes it “with a bona fide intent to protect his own

¶556interest in a matter where it is concerned; but in such a case he must

¶557do so at his peril, if he exceeds the limit of his privilege and uses the

¶558language, not merely to protect his interest, but to vent his private

¶559malice on the person spoken of”); McIntosh v. Williams, 160 Ga. 461,

¶560465 (128 SE 672) (1925) (explaining that if an allegedly defamatory

¶561statement was conditionally privileged, such that “it was made in

¶562good faith and without malice by the defendant to protect his

¶563interest . . . , then the plaintiff could not recover”); Atlanta Journal

¶564Co. v. Doyal, 82 Ga. App. 321, 332-333 (60 SE2d 802) (1950)

¶565(explaining that the term “malice” in the law of defamation can “be

¶566used in two senses”: “to denote absence of lawful excuse or to

¶567indicate absence of privileged occasion,” which is “‘[i]mplied’ malice

¶568or ‘malice in law,’” and to denote “intent of mind and heart, or ill will

¶569 38 against a person,” which is “‘express malice’ or ‘malice in fact’” and

¶570saying that “[p]roof that the communication is privileged rebuts the

¶571prima facie presumption of malice in law” and that the “only effect

¶572of privilege is to require the plaintiff to prove actual malice”); Shiver

¶573v. Valdosta Press, 82 Ga. App. 406, 411 (61 SE2d 221) (1950)

¶574(concluding that a conditional privilege is defeated “if the defendant

¶575acted with express malice and a desire to injure the plaintiff and

¶576expose him to public hatred, contempt and ridicule in the

¶577publication”). 15

¶578 Thus, consistent with the early nineteenth century legal

¶579landscape discussed above, for nearly 100 years, appellate cases in

¶580 15 Consistent with early nineteenth century decisional law in England

¶581and 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

¶582defense of conditional privilege, must establish that the defendant’s

¶583claim that he made an allegedly defamatory statement to promote a

¶584legitimate interest is a sham or ruse—and that he made the

¶585statement with “private malice,” meaning with ill will toward the

¶586plaintiff or with an intent to injure him. But something happened

¶587in 1964 that injected confusion into the Court of Appeals’s analysis

¶588of private malice: the United States Supreme Court decided New

¶589York Times, which formulated, as a matter of federal constitutional

¶590law, a meaning for the term “actual malice” that differed from the

¶591meaning that Georgia defamation law had ascribed to “private

¶592malice.” In the wake of New York Times, it appears that the Court

¶593of Appeals, over time and without analysis of the legal context of

¶594OCGA § 51-5-9, developed a line of precedent that engrafted the

¶595constitutional standard onto Georgia law. To better explain, we turn

¶596to the federal constitutional law on defamation set forth in New York

¶597Times and its progeny and the effect of those constitutional

¶598requirements on state defamation law.

¶599 40  (c) New York Times and Its Progeny

¶600 In New York Times, the United States Supreme Court held that

¶601the First Amendment places certain limitations on state defamation

¶602law. In that case, a public official in Alabama sued the publisher of

¶603the New York Times for defamation in state court based on a

¶604political advertisement condemning the actions of local public

¶605officials with respect to their handling of civil rights demonstrations

¶606in Alabama. See New York Times, 376 U.S. at 256-259. It was

¶607undisputed that some of the statements in the advertisement were

¶608false, such that the publishing company would be strictly liable

¶609under Alabama law unless it could establish that the statements

¶610were true. See id. 256-263. Noting that a “rule compelling the critic

¶611of official conduct to guarantee the truth of all his factual assertions”

¶612would deter protected speech, the Court announced that the First

¶613Amendment

¶614 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.

¶615 41 Id. at 279-280.

¶616 The “actual malice” standard, which the Court has since

¶617described as “a constitutional privilege,” Gertz v. Robert Welch, Inc.,

¶618418 U.S. 323, 334 (94 SCt 2997, 41 LE2d 789) (1974), was later

¶619extended beyond “public officials” to plaintiffs who are “public

¶620figures,” see Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (87

¶621SCt 1975, 18 LE2d 1094) (1967) (plurality opinion). 16 The United

¶622States Supreme Court has also held that even a private-figure

¶623plaintiff is required to prove “actual malice” in order to recover

¶624presumed or punitive damages if the defamatory statement was

¶625about a matter of public concern. See Gertz, 418 U.S. at 349-350.

¶626See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.

¶627749, 761-763 (105 SCt 2939, 86 LE2d 593) (1985) (explaining that

¶628“‘[w]hether . . . speech addresses a matter of public concern must be

¶629determined by [the expression’s] content, form, and context . . . as

¶630revealed by the whole record’” and holding that a false credit report

¶631 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

¶632omitted).

¶633 In such cases, “actual malice” must be proved not merely by a

¶634preponderance of the evidence but by clear and convincing evidence,

¶635see New York Times, 376 U.S. at 285-286; Gertz, 418 U.S. at 342,

¶636which is an “extremely high” standard of proof, Zeh, 312 Ga. at 669

¶637(citation and punctuation omitted). And the United States Supreme

¶638Court has made clear that “actual malice” in the constitutional sense

¶639requires a plaintiff to show “that the defendant actually had a ‘high

¶640degree of awareness of . . . probable falsity.’” Harte-Hanks

¶641Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (109 SCt

¶6422678, 105 LE2d 562) (1989) (citation omitted). See also St. Amant

¶643v. Thompson, 390 U.S. 727, 731 (88 SCt 1323, 20 LE2d 262) (1968)

¶644(“There must be sufficient evidence to permit the conclusion that the

¶645defendant in fact entertained serious doubts as to the truth of his

¶646publication.”). Thus, the term “actual malice” as defined in New

¶647York Times is more stringent than the sort of “malice in fact” that a

¶648plaintiff was required to prove under the traditional rule to defeat a

¶649 43 conditional privilege. Indeed, the United States Supreme Court has

¶650emphasized that “the actual malice standard is not satisfied merely

¶651through a showing of ill will or ‘malice’ in the ordinary sense of the

¶652term” and that the “phrase ‘actual malice’ is unfortunately confusing

¶653in that it has nothing to do with bad motive or ill will.” Harte-Hanks,

¶654491 U.S. at 666 & n.7. See also, e.g., Beckley Newspapers Corp. v.

¶655Hanks, 389 U.S. 81, 82 (88 SCt 197, 19 LE2d 248) (1967) (explaining

¶656that an instruction that the jury “could find for the [public-official

¶657plaintiff] if it were shown that [the defendant] had published the

¶658editorials ‘with bad or corrupt motive,’ or ‘from personal spite, ill will

¶659or a desire to injure [the] plaintiff” misstated the “actual malice”

¶660standard in New York Times, which requires a showing that the

¶661defendant made the allegedly defamatory statement “‘with

¶662knowledge that it was false or with reckless disregard of whether it

¶663was false or not’”). 17

¶664 17 Notably, the United States Supreme Court borrowed the term “actual

¶665malice” 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

¶666 44  The constitutional “actual malice” requirement does not

¶667ordinarily 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.

¶668 45 pertain, however, to defamation cases brought by private-figure

¶669plaintiffs relating to statements that do not involve matters of public

¶670concern. Those cases are controlled by Georgia law. About 10 years

¶671after New York Times, the United States Supreme Court concluded

¶672in Gertz that “the state interest in compensating injury to the

¶673reputation of private individuals requires that a different rule

¶674should obtain with respect to them” and accordingly held: “[S]o long

¶675as they do not impose liability without fault, the States may define

¶676for themselves the appropriate standard of liability for a publisher

¶677or broadcaster of defamatory falsehood injurious to a private

¶678individual.” 418 U.S. at 343, 347. In response to Gertz, this Court

¶679abandoned the traditional rule imposing strict liability in

¶680defamation cases and held that negligence is the appropriate

¶681standard for determining fault in such cases. See Triangle

¶682Publications, Inc. v. Chumley, 253 Ga. 179, 181-182 (317 SE2d 534)

¶683(1984). Thus, when a defendant makes an allegedly defamatory

¶684statement about a private-figure plaintiff that does not involve a

¶685matter of public concern, he is generally held to a standard of

¶686 46 ordinary care as a matter of Georgia law. See Zeh, 312 Ga. at 650-

¶687651.

¶688 In sum, the United States Supreme Court has held that the

¶689First Amendment places limits on state defamation law when the

¶690plaintiff is a public official or public figure and when a private-figure

¶691plaintiff seeks presumed or punitive damages relating to a

¶692defamatory statement about matters of public concern, such that the

¶693“actual malice” standard announced in New York Times (i.e.,

¶694knowledge of falsity or reckless disregard for truth) applies in those

¶695sorts of cases.18 But the Court has determined that in all other

¶696 18 In such cases, we must faithfully apply the New York Times standard

¶697established 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

¶698 47 respects, the states are free to impose their own defamation rules,

¶699so long as they do not impose strict liability. Consequently, when a

¶700plaintiff is a private figure and does not seek presumed or punitive

¶701damages flowing from a defamatory statement about a matter of

¶702public concern, the “actual malice” standard in New York Times does

¶703not apply, and Georgia defamation law controls. It is in these sorts

¶704of cases that the Georgia statutes and decisional law about

¶705conditional privileges come into play. 19

¶706 (d) Confusion About “Actual Malice” After New York Times

¶707 Consistent with the legal framework we just recounted, after

¶708should revisit the “actual malice” standard).

¶709 19 Because the issues of whether a plaintiff in a defamation case is a

¶710public 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.

¶711 48 New York Times, the Georgia Court of Appeals properly applied the

¶712constitutional “actual malice” standard in some defamation cases

¶713brought by public-official or public-figure plaintiffs, but applied

¶714Georgia law—including the statutory requirement that a plaintiff,

¶715to defeat a defense of conditional privilege, must prove “private

¶716malice” or malice in fact, meaning ill will or an intent to injure—in

¶717other defamation cases brought by private-figure plaintiffs. 20 In

¶718other cases, however, the Court of Appeals stated—without

¶719discussion of the well-settled, state-law rule that a showing of malice

¶720in fact is sufficient to overcome a conditional-privilege defense—that

¶721a plaintiff could defeat a conditional privilege only by establishing

¶722constitutional “actual malice,” as that term was defined by the

¶723United States Supreme Court in New York Times. 21

¶724 20 See, e.g., Thibadeau v. Crane, 131 Ga. App. 591, 592-593 (206 SE2d

¶725609) (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).

¶726 21 See, e.g., Montgomery v. Pacific & Southern Co., 131 Ga. App. 712, 715-

¶727 49  Then, in 1988—almost 25 years after New York Times—the

¶728Court of Appeals attempted to clarify its precedent regarding when

¶729to apply the constitutional “actual malice” standard set out in New

¶730York Times and when to apply the statutory standard of private

¶731malice under the predecessors to OCGA § 51-5-9. See Diamond v.

¶732American Family Corp., 186 Ga. App. 681, 684 (368 SE2d 350)

¶733(1988) (overruling Montgomery v. Pacific & Southern Co., 131 Ga.

¶734717 (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).

¶735 50 App. 712 (206 SE2d 631) (1974), and another case to the extent they

¶736held “that the qualified privilege for the reporting of matters of

¶737public concern may be defeated only by a showing of actual malice”

¶738as defined in New York Times).22 And over the next 15 years, it

¶739appears that the Court of Appeals generally applied the New York

¶740Times standard of constitutional actual malice (i.e., knowledge of

¶741falsity or reckless disregard for truth) in defamation cases involving

¶742public-official and public-figure plaintiffs and the state-law

¶743standard of private malice (i.e., ill will or intent to injure) in cases

¶744involving whether a defendant’s allegedly defamatory statement

¶745against a private-figure plaintiff was conditionally privileged under

¶746Georgia law. 23

¶747 22 The other case that the Court of Appeals overruled in Diamond was

¶748WSAV-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.

¶749 23 See, e.g., Williams v. Cook, 192 Ga. App. 811, 812 (386 SE2d 665)

¶750(1989); Brewer v. Rogers, 211 Ga. App. 343, 347-348 (439 SE2d 77) (1993);

¶751 51  But in the early 2000s, the Court of Appeals reversed course

¶752and again concluded, as it had in several cases prior to Diamond,

¶753that a private-figure plaintiff must establish “actual malice” within

¶754the meaning of New York Times to defeat a state-law conditional

¶755privilege, without explanation as to why the constitutional standard

¶756would apply in such cases, which involved only matters of Georgia

¶757law. See, e.g., Cooper-Bridges v. Ingle, 268 Ga. App. 73, 77 (601

¶758SE2d 445) (2004) (holding that to defeat a defense of conditional

¶759privilege, the plaintiff was required to show “actual malice”—that

¶760the defendant “knew that the statements were false or published

¶761with reckless disregard of whether they were false or not,” citing

¶762Morton v. Gardner, 155 Ga. App. 600, 604 (271 SE2d 733) (1980),

¶763but also noting that “‘[m]alice to avoid qualified privilege must be

¶764actual and with evil intent’”) (citation omitted).24

¶765Purvis 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).

¶766 24 See also, e.g., Rabun v. McCoy, 273 Ga. App. 311, 316 (615 SE2d 131)

¶767(2005) (same, citing Cooper-Bridges and Gardner), overruled on other grounds

¶768 52  The line of Court of Appeals cases applying the constitutional

¶769“actual malice” standard to a private-figure plaintiff seeking to

¶770defeat a conditional-privilege defense is not grounded in the

¶771historical and legal background of OCGA § 51-5-9. Rather, it

¶772appears that this line of cases inadvertently imported the New York

¶773Times “actual malice” standard into OCGA § 51-5-9, without

¶774analysis of the limited circumstances in which the United States

¶775Supreme Court has said that the standard applies as a matter of

¶776United States constitutional law, or of that Court’s

¶777acknowledgement that the New York Times “actual malice”

¶778by 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.”

¶779And as we explain more below, we therefore conclude that the

¶780“actual malice” standard in New York Times does not apply in the

¶781context of analyzing whether a private-figure plaintiff whose claim

¶782is based on defamatory statements that do not involve matters of

¶783public concern has overcome a conditional privilege as a matter of

¶784Georgia law.

¶785 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

¶786 To recap, we explained above that the first version of OCGA

¶787§ 51-5-9, which was enacted in 1860, codified the traditional rule

¶788that a plaintiff, to overcome a defense of conditional privilege, must

¶789show that the defendant’s claim that he made an allegedly

¶790defamatory statement to promote a legitimate interest is a sham

¶791and that instead, he made the statement with ill will toward the

¶792plaintiff or with an intent to injure him. Georgia appellate cases

¶793consistently applied this rule for 100 years after the text of what is

¶794now OCGA § 51-5-9 was enacted. Then, in 1964, the United States

¶795 54 Supreme Court held in New York Times that the states must apply

¶796the constitutional standard of “actual malice”—meaning knowledge

¶797of falsity or reckless disregard for truth—when a plaintiff in a

¶798defamation case is a public official or public figure or when he is a

¶799private figure seeking presumed or punitive damages related to a

¶800defamatory statement about a matter of public concern. But outside

¶801of those contexts—such as when a plaintiff is a private figure and

¶802does not seek such damages—the “actual malice” standard in New

¶803York Times does not apply.

¶804 In light of the history of OCGA § 51-5-9 (and considering the

¶805federal constitutional law on defamation), we conclude that the text

¶806of that statute requires a plaintiff, to overcome a conditional

¶807privilege, to establish that the defendant used the privilege as a

¶808pretense, such that the allegedly defamatory statement was not

¶809made for one of the bona fide purposes listed in OCGA § 51-5-7 but

¶810was instead made with “private malice,” meaning with ill will

¶811toward the plaintiff or with an intent to injure him. This

¶812understanding of OCGA § 51-5-9 is not altered by New York Times,

¶813 55 which had no effect on Georgia defamation law in cases brought by

¶814private-figure plaintiffs involving allegedly defamatory statements

¶815that do not involve matters of public concern. Thus, such Court of

¶816Appeals cases that, after New York Times, determined that a

¶817plaintiff can overcome a conditional-privilege defense only by

¶818establishing the type of constitutional “actual malice” articulated in

¶819New York Times—meaning knowledge of falsity or reckless

¶820disregard for truth—applied the wrong legal standard.25 We

¶821therefore overrule those cases.26

¶822 25 We note, however, that a showing of knowledge of falsity (one prong of

¶823the 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.

¶824 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);

¶825 56  With that, we circle back to the Court of Appeals’s

¶826determination in this case that Oskouei was required to establish by

¶827clear and convincing evidence that Matthews acted with “actual

¶828malice,” meaning that “Matthews knew that his statements were

¶829false or that he made them with a reckless disregard for the truth,”

¶830to overcome the conditional privilege set forth in OCGA § 51-5-7 (7).

¶831Matthews, 369 Ga. App. at 575. As we explained above, that is not

¶832the standard that applies when a plaintiff seeks to overcome a

¶833conditional-privilege defense under Georgia law, unless the plaintiff

¶834is a public official or public figure or unless he is a private figure

¶835seeking presumed or punitive damages related to a defamatory

¶836statement about a matter of public concern, such that the New York

¶837Times “actual malice” standard would instead apply. 27 When only

¶838Heard 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.

¶839 27 The parties do not expressly allege that Oskouei is a public figure or

¶840 57 Georgia law applies, a plaintiff seeking to overcome a conditional-

¶841privilege defense must establish by a preponderance of the evidence

¶842(the standard that generally applies to civil cases, see OCGA § 24-

¶84314-3) that the defendant made the allegedly defamatory statements

¶844with ill will toward the plaintiff or with an intent to injure him. See,

¶845e.g., Lester, 51 Ga. at 120; Pearce, 72 Ga. at 244-246; Nicholson, 137

¶846Ga. at 231. Because the Court of Appeals incorrectly imported the

¶847constitutional “actual malice” standard into OCGA § 51-5-9 in this

¶848case, we vacate the Court of Appeals’s opinion and remand the case

¶849to that court for further proceedings consistent with this opinion.

¶850 Judgment vacated and case remanded. All the Justices concur, except Peterson, P.J., who concurs except as to footnote 18.

¶851that 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.

¶852 Although I concur fully in the Court’s opinion, I write

¶853separately to clarify why I believe we must vacate the Court of

¶854Appeals’s judgment in this case and remand with direction for the

¶855trial court to evaluate Matthews’s anti-SLAPP motion under the

¶856correct standards, including on the threshold question of whether

¶857Georgia defamation law or the federal New York Times standard

¶858applies.

¶859 I agree wholly with the Court’s thorough analysis of Georgia

¶860defamation law and how the New York Times “actual malice”

¶861standard has been misapplied to defamation claims that are

¶862governed solely by state law. I also agree that the first step in the

¶863analysis of whether a plaintiff may prevail on his defamation claims

¶864is to determine whether Georgia’s defamation law or federal

¶865constitutional defamation law, as established under New York

¶866Times, applies to his claims.28 See Gertz, 418 U.S. at 346, 349-350

¶867 28 Accord Op. at 41-48 (recognizing that the federal constitutional “actual

¶868 59 (IV) (acknowledging “actual malice” standard applies to a private-

¶869figure plaintiff when the defamatory statement is about a matter of

¶870public concern while recognizing that states may, without imposing

¶871strict liability, separately define the standard of liability for

¶872defamatory statements that injure the reputation of private

¶873individuals and do not involve a matter of public concern); Zeh, 312

¶874Ga. at 650-51 (1) (b).

¶875 However, no court, including this Court, has considered or

¶876expressly determined whether the statements at issue here are the

¶877type that would constitute statements of public concern, such that

¶878the New York Times actual malice standard would apply. See

¶879Matthews, 369 Ga. App. at 573-74 (addressing Matthews’s

¶880statements in terms of comments made by counsel pursuant to

¶881OCGA § 51-5-7 (7) but without analyzing whether his statements

¶882would constitute statements of public concern under New York

¶883Times). This Court did not do so because of the procedural posture

¶884malice” 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

¶885claim using the New York Times standard, and we granted certiorari

¶886on the legal question of whether the “actual malice” standard applies

¶887to overcome a defense of conditional privilege under OCGA § 51-5-7

¶888(7), without specifically pointing the parties to this threshold issue.29

¶889The parties and lower courts may not have focused on this threshold

¶890question because it may not have seemed significant given that the

¶891Court of Appeals precedent has, at times, conflated the New York

¶892Times actual malice standard with Georgia’s private malice

¶893standard.

¶894 Nonetheless, although the Court is correct that the “parties do

¶895not expressly allege that Oskouei is a public figure or that

¶896Matthews’s allegedly defamatory statements related to a matter of

¶897public concern,” Op. at 57-58 n.27, it appears that Matthews made

¶898arguments below that could support application of the New York

¶899 29 The question presented on certiorari was: “To overcome a defense of

¶900conditional 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

¶901the alleged defamatory statements were a matter of “public

¶902interest”:

¶903 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.

¶904Matthews also noted in his motion that he “has twice been called to

¶905testify before the Georgia House Judiciary Committee on matters of

¶906public interest pertaining to the ‘phantom damages’ created by lien

¶907doctors and their business model.” Matthews also argued that the

¶908types of “medical billing fraud” at issue in this case “are clearly

¶909matters of public interest and reasonable grounds for free speech”

¶910and are “directly analogous to the conduct of Martin Shkreli, who

¶911was the subject of widespread media coverage.”

¶912 Thus, it remains an open question of whether the alleged

¶913defamatory statements were of public concern, such that the New

¶914York Times standard could apply. Because no court has yet decided

¶915this key threshold issue, the appropriate disposition is to vacate the

¶916 62 judgment of the Court of Appeals with direction to remand the case

¶917to the trial court for consideration of whether Oskouei has

¶918established a reasonable probability of prevailing on his claims,

¶919under the standards enunciated by the Court, including the

¶920threshold question of whether state defamation law or the New York

¶921Times standard applies.30 See, e.g., Zeh, 312 Ga. at 676 (5) n.26

¶922(explaining that, while “all public officials may be public figures,

¶923even though all public figures are not public officials[,]” that

¶924question was not posed on certiorari and leaving it “to the trial court

¶925to decide in the first instance on remand whether the ACLU claims

¶926that Zeh is a ‘public figure plaintiff’ as that term is used in OCGA §

¶9279-11-11.1 (b) (2)” (punctuation omitted)).

¶928 30 Even without specific direction by the Court, the parties could revisit

¶929this 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