ATLANTA - An interesting First Amendment battle is being waged in the federal appeals court in Atlanta by an ex-Georgia sheriff who claims a barrage of leaflets that falsely painted one of his critics as an ex-con was politically protected free speech.

The argument by former Forsyth County Sheriff Dennis Lee Hendrix came before the 11th Circuit Court of Appeals on Thursday after he challenged an April 2007 jury verdict that awarded one of the critics, Danny Bennett, a $3.6 million judgment on libel claims.

The case started in 2000, when Bennett claimed he was the target of a Hendrix smear campaign after he supported a 1998 referendum to create a countywide police force that would have sharply curtailed the sheriff's powers.

The fliers, which were distributed in three waves to 12,000 houses just days before a 2000 election, claimed Bennett and another man were "convicted felons" and were "the same kind of criminals that terrorize Forsyth County."

Bennett, who is a developer, said that kind of attack was out of line because he isn't a public figure. Besides, he said, he also wasn't a criminal: He had been arrested in 1996 on charges of refusing to obey an order to stop work at a job site but the charges were later dismissed.

A jury agreed with Bennett and awarded him $3.6 million - a judgment that Hendrix attorney Paul Smith called "vastly excessive" because Bennett never actually suffered an injury from the flyers, which is a key requirement for bringing this type of lawsuit.

"There was no claim that anyone in Forsyth County thought he was a criminal," said Smith. "He just said he was being made fun of."

When pressed by visiting Judge Jane Restani, who pointed out the flyers specifically called Bennett a convicted criminal, Smith said the language was "politically protected free speech" and that letting the verdict stand could set a harmful precedent.

"It allows juries free reign to punish political rhetoric that they may not like," Paul said. "It could be enormously contrary to free speech rights."

Bennett's attorney Eric Chofnas said there was no question his client was harmed by the defamatory language in the flyers.

"He was just a guy who just happened to get in the sheriff's crosshairs," Chofnas said. "Bennett isn't a public figure, he just got crosswise of a sheriff who tended to do these sort of things."