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Swindall v. Cox Enterprises, Inc.

Court of Appeals of Georgia

January 11, 2002

SWINDALL
v.
COX ENTERPRISES, INC.

Page 789

[253 Ga.App. 238] Patrick L. Swindall, pro se.

Dow, Lohnes & Albertson, Thomas M. Clyde, Peter C. Canfield, Robert C. McBurney, Atlanta, for appellee.

MILLER, Judge.

Patrick Swindall sued Cox Enterprises, Inc. for libel for statements made in an editorial published in Cox's newspaper, the Atlanta Constitution. The trial court granted Cox's motion for summary judgment on the ground that the statements were substantially true. We agree and affirm.

To prevail at summary judgment, the moving party must show that there is no genuine issue of material fact and that the undisputed facts, viewed most favorably to the nonmoving party, warrant judgment as a matter of law. [1] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the moving party may discharge its burden by pointing out by reference to affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party's case. [2]

In 1989 a federal grand jury indicted Swindall for perjury. As summarized later by the Eleventh Circuit Court of Appeals, the ten-count indictment charged that "Swindall had discussed money-laundering transactions with an undercover agent and an intermediary, and then falsely testified to a grand jury to conceal the extent of his involvement in these discussions. Swindall was not charged with any substantive money-laundering offenses." [3] The United States District Court for the Northern District of Georgia convicted Swindall of nine counts of perjury, of which the Eleventh Circuit reversed three and affirmed six. [4]

In 1999 the Atlanta Constitution published an editorial entitled "Barr's claims outrageous, invalid," which quoted statements made by U.S. Representative Bob Barr during former President Clinton's impeachment trial. Barr was asked if prosecutors would have sought an indictment of an individual who engaged in the perjury of which the President was accused. Barr responded that he had prosecuted such cases "including a case that probably cost me a primary election in the Republican Party for prosecuting a member of Congress for precisely the activity which brings us here today; that is perjury, misleading a grand jury." The editorial then commented on Barr's statements:

Barr compares the charges against Pat Swindall, the then-member of Congress he prosecuted and convicted for perjury, [253 Ga.App. 236] to the accusations against Clinton. Swindall was charged with lying about his involvement in a drug-money laundering scheme.

Page 790

The president is accused of lying in a civil deposition about consensual sexual conduct. Former Sen. Dale Bumpers, ... said House Republicans have lost all sense of proportionality in their pursuit of the president.... By equating lying about sex with ...


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