John Butters (left) and David Cohen. Photo by John Disney.

The Supreme Court of Georgia reinstated three of four criminal charges Thursday against two metro Atlanta lawyers and their client stemming from a secret recording of her sexual encounter with the chairman of the Waffle House restaurant chain.

In a unanimous ruling with three separate concurrence by five justices, the high court reversed a Fulton County judge's dismissal of felony charges lodged against attorneys David Cohen and John Butters and their client, Mye Brindle.

In the opinion written by Justice Harold Melton, the high court affirmed the dismissal of a felony extortion conspiracy charge stemming from a demand letter Cohen sent to Joe Rogers Jr. prior to filing a civil sexual harassment claim against him on Brindle's behalf.

“If a mere threat of legitimate litigation could serve as a proper basis for a charge of extortion, [the state statute] could be applied in an overbroad and unconstitutional manner that would  run afoul of First Amendment principles protecting the right of individuals to petition the government for a redress of grievances,” Melton wrote.

The justices reversed the dismissal of three violations of the state's eavesdropping law “because Brindle and her attorneys allegedly took actions to agree to make a secret video and actually video record others without the consent of all of the persons being recorded. … The consent of all parties is needed before a person may use any sort of spying device to photograph or video record the activities of another person in a private place and out of the public view.”

The high court also reversed the lower court determination that both criminal statutes were unconstitutional.

The high court's ruling is the first of multiple issues involving the Waffle House sex tape before it.

Cohen's attorney, Brian Steel, said Thursday that he was delighted the high court upheld the dismissal of the extortion conspiracy charge. Of the reinstated counts, Steel said, “Mr. Cohen will be formidable at a trial and will be victorious. Mr. Cohen committed no crime whatsoever.”

Fulton County District Attorney Paul Howard secured the indictments of Brindle, Cohen and Butters, who is a former Cobb County assistant district attorney, last year on charges of conspiracy to commit extortion, conspiracy to commit unlawful eavesdropping, and illegal eavesdropping or surveillance. When a Fulton County judge dismissed the indictments, Howard appealed.

Howard's office released a statement expressing gratitude to the high court. “We feel this decision provides a major victory for the privacy rights of every Georgia citizen,” it said.

The charges stemmed from a decision by Brindle, a longtime housekeeper for Waffle House Chairman Joe Rogers Jr., to secretly videotape a sexual interlude with Rogers in 2012—shortly after she retained Cohen and Butters. Within weeks, Cohen delivered a harsh demand letter to Rogers on Brindle's behalf, accusing the Waffle House executive of “unwelcome sexual demands and other sexual harassment and abuse.”

The state eavesdropping law makes it a crime for any person, without the consent of everyone observed, to photograph or record the activities of others that occur in a private place out of public view. The only exceptions are for individuals in prison or in jail and property owners who install cameras for security purposes.

The extortion charge derived from Cohen's demand letter for a pre-lawsuit settlement. While the letter did not include a monetary demand, Rogers' lawyers have repeatedly said they viewed the letter as a clear threat to ruin him if he didn't meet settlement demands. In negotiations before Brindle sued Rogers, the housekeeper's legal team suggested the matter could be settled without litigation for around $12 million, according to one affidavit.

Court records described Brindle's video recording as depicting Rogers nude in his bathroom, shaving and then lying on his bed as Brindle manually serviced him. The tape took center stage in a growing tangle of competing civil and criminal litigation involving Brindle, Rogers, Cohen and Butters in two counties and the state appellate courts.

The actual footage has been sealed by two judges in Cobb and Fulton counties, who issued civil rulings that the videotaping was illegal.

But after the lawyers and Brindle were indicted, Fulton County Superior Court Judge Henry Newkirk disagreed and dismissed the criminal charges.

Newkirk held that the Georgia courts have consistently refused to extend the state extortion statute to include a threat to file civil litigation. He also ruled the eavesdropping law permits video-audio recordings with single-party consent. And he agreed with Brindle and her lawyers that Rogers did not have an expectation of privacy in his bedroom and bath.

Brindle, according to the judge, was a member of the public, not part of Rogers' household or his family. Therefore, Rogers waived his right to privacy by inviting her into his bedroom and private bath. Newkirk also determined that anyone engaged in an extramarital relationship loses the right to privacy regarding extramarital conduct.

Butters' attorney, Bruce Morris, said that he and his client were pleased with the court's decision to affirm the dismissal of the extortion charge. He said that the eavesdropping charges were based on claims that the videotaping occurred in a “private place” in violation of state law. But, he added, “We are confident that when the facts are tested, the state cannot prove that the events in question were in a private place, that there was an expectation of privacy and that the events were consensual.”