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On Tuesday, a California appellate court held that “the press has no special immunity” from employment laws, and reversing a lower court, allowed former CNN producer Stanley Wilson to move forward in a lawsuit claiming the cable news network subjected him to discrimination, retaliation and defamation.
The proposition that a media outlet can’t discriminate on the basis of race, age or disability might seem obvious, but Wilson’s lawsuit triggered a move by CNN that would later gain support from CBS, NBCU, Fox, the Los Angeles Times and the California Newspaper Publishers Association. At issue are the circumstances by which a news organization’s decisions are deemed to be acts in furtherance of its exercise of the constitutional right of free speech in connection with a public issue. Under California’s anti-SLAPP statute, if a media company is being hauled into court for protected activity, a person asserting a legal claim bears the burden of demonstrating a probability of prevailing before the case proceeds.
In his 2014 lawsuit, Wilson said he was a 51-year-old African- and Latino-American who worked for CNN from 1996 through the first month of 2014. An Emmy Award winner, he was fired after being accused of plagiarism in connection with a story about the retirement of Los Angeles County sheriff Lee Baca. Wilson contends this was just a pretext and that the real reasons were discriminatory in nature. He alleges he was replaced by a less experienced Caucasian under the age of 40 and was unable to find work in broadcast journalism after CNN purposely published knowingly false statements accusing him of dishonesty in his profession.
In response to the lawsuit, CNN brought an anti-SLAPP motion. Despite Wilson’s contention that his former employer’s conduct did not arise from protected activity, the trial court granted the motion, and without the benefit of discovery, Wilson’s claims were rejected.
A divided panel at California’s second appellate district takes a review, and despite some case law that indicates staffing decisions by media companies can be linked inextricably with the content of news (stressed in an amicus brief by CBS and others), associate justice Elwood Lui delivers the majority opinion that Wilson is correct in his SLAPP assessment.
“Undoubtedly, a producer or writer shapes the way in which news is reported,” writes Lui. “Thus, defendants‘ choice of who works as a producer or writer is arguably an act in furtherance of defendants‘ right of free speech. But this does not mean that defendants‘ alleged discrimination and retaliation against plaintiff — a long-term, well-reviewed existing employee that CNN had already deemed qualified and acceptable to shape its news reporting — was also an act in furtherance of its speech rights.”
Lui focuses much of the opinion on “motives” — which CNN argued was irrelevant. He agrees that there’s no burden for CNN to show that a plaintiff like Wilson intended to chill its exercise of constitutional rights, but refuses to equate that to an employer’s motive in subjecting an employee to discrimination and retaliation. He writes, “Discrimination and retaliation are not simply motivations for defendants‘ conduct, they are the defendants‘ conduct.”
And here’s the ultimate takeaway from Lui’s decision (read here in full):
“Accordingly, we conclude that the gravamen of plaintiff‘s employment-related causes of action was defendants‘ allegedly discriminatory and retaliatory conduct against him, not the particular manifestations of the discrimination and retaliation, such as denying promotions, assigning him menial tasks, and firing him. Further, we reject defendants‘ characterization of their allegedly discriminatory and retaliatory conduct as mere ‘staffing decisions’ in furtherance of their free speech rights to determine who shapes the way they present news. The press has no special immunity from generally applicable laws.”
Justice Frances Rothschild dissents from the majority.
Rothschild says that there is no dispute that when CNN reports the news, it is exercising its free speech under the First Amendment. She believes that acts advancing CNN’s exercise of rights — including employment decisions — are covered under the first prong of the anti-SLAPP statute. But she rejects Lui’s conclusion that if this is so, the press has “special immunity.” She points out that lawsuits still can be brought so long as plaintiffs, under the second prong of the anti-SLAPP statute, demonstrate a reasonable probability of prevailing on the merits of claims.
“Although the anti-SLAPP statute places an additional burden on these plaintiffs, that burden is equally placed on every other plaintiff whose case comes within the scope of the anti-SLAPP statute,” she writes. “Indeed, if the requirement that a plaintiff make a prima facie showing excused every case from the anti-SLAPP law, the entire anti-SLAPP law would be eviscerated.”
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