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The California Supreme Court on Monday gave CNN a partial victory in its long-running legal dispute over the termination of producer Stanley Wilson. The new opinion offers the prospect that moving forward, employment discrimination and retaliation lawsuits against media companies will be subjected to more scrutiny at the get-go.
Wilson won three Emmy Awards and other journalistic honors during his tenure with CNN, but was terminated in 2014 upon concerns of plagiarism in connection with a story about the retirement of Los Angeles County Sheriff Lee Baca. Wilson, who is African-American and Latino, alleges that he has long raised noise about the cable news channel’s treatment of black men and also says he was given menial assignments and denied promotions after taking a five-week paternity leave after the birth of his twin children in 2013. He brought suit for discrimination, retaliation and defamation, the latter claim premised on what CNN told prospective employers about him.
In 2016, a California appellate court revived Wilson’s suit with the conclusion that CNN’s conduct did not arise from protected activity. At issue was how to interpret Wilson’s legal action within the context of California’s SLAPP statute, with was enacted by state lawmakers to deter frivolous actions targeting First Amendment activity on matters of public importance. According to the divided panel in the prior appellate decision, discrimination and retaliation do not ever qualify as protected activity, even when committed by a news organization otherwise engaged in free speech.
On Monday, the California Supreme Court, led by Associate Justice Leondra Reid Kruger, rules the prior decision went too far, that discrimination and retaliation can fall within the ambit of the SLAPP statute and that a lawsuit like the one brought by Wilson can be screened for minimal merit whenever protected activity is involved.
The essential question: Do the reasons underpinning someone’s firing matter when reviewing what’s in furtherance of speech rights?
“Wilson contends that ‘the basis of CNN’s alleged liability is not staffing or hiring for a news position, but discriminatory treatment and actions,'” explains the latest opinion. “But the discriminatory treatment and actions Wilson alleges in support of his claims are actions related to the staffing of CNN’s newsroom. The argument thus boils down to an assertion that, for purposes of the first step of the anti-SLAPP analysis, a court must accept Wilson’s allegation that the challenged personnel actions were taken for discriminatory reasons and are therefore unlawful.”
Settling a split that has arisen among California courts, the Supreme Court says that when confronted with an anti-SLAPP motion, courts must look beyond pleadings and consider evidentiary submissions so as to come to a conclusion about whether the complained-about activity qualifies for protection. “At this stage, the question is only whether a defendant has made out a prima facie case that activity underlying a plaintiff’s claims is statutorily protected, not whether it has shown its acts are ultimately lawful,” the opinion continues.
Thus, after deciding that Wilson’s allegations about CNN’s motives are not dispositive, the Supreme Court then addresses whether Wilson is targeting protected activity, or stated another way, whether Wilson is suing over actions in furtherance of CNN’s free speech activity on matters of public concern.
CNN argued that its selection of content producers facilitates its free speech; essentially, that the staffing decisions impact the news that its viewers see. Just by exercising editorial control and judgment, CNN asserts that such hiring and firing activity is connected to its right to choose what news will be reported and how it will be reported.
The California Supreme Court agrees with this argument to some degree, but doesn’t think it follows that everything a news organization does qualifies as protected activity under the anti-SLAPP statute. What’s more, the justices point to permissible regulation of the media by government. “Not every staffing decision a news organization makes — even with respect to those who write, edit, or otherwise produce content — enjoys constitutional protection,” states the opinion.
Kruger then points to Wilson’s relatively minor role in the hierarchy at CNN. “As far as the record shows, Wilson was one of countless employees whose work contributes to what a large news organization like CNN says about the issues of the day, but was not among those who appear on-air to speak for the organization or exercise authority behind the scenes to determine CNN’s message. CNN’s decisions concerning which assignments to give Wilson and whether to continue employing him, without more, had no substantial relationship to CNN’s ability to speak on matters of public concern. It follows that a claim based on these decisions, without more, falls outside the reach of the anti-SLAPP statute,” the opinion continues.
CNN experiences better luck with regards to its plagiarism rationale for terminating Wilson.
As Kruger writes, “Plagiarism is universally recognized as a serious breach of journalistic ethics. Disciplining an employee for violating such ethical standards furthers a news organization’s exercise of editorial control to ensure the organization’s reputation, and the credibility of what it chooses to publish or broadcast, is preserved. These objectives lie ‘at the core’ of the press function. CNN has made out a prima facie case that its staffing decision was based on such considerations, and that such decisions protect the ability of a news organization to contribute credibly to the discussion of public matters. The staffing decision thus qualifies as ‘conduct in furtherance’ of CNN’s ‘speech in connection with’ public matter.”
That appears to give CNN a boost on claims related to the termination of Wilson, as the Supreme Court holds that CNN has carried its first-step burden there and is now entitled to a preliminary screening of those claims to determine whether they have requisite merit.
But the Supreme Court says that Wilson’s causes of action based on other activity — “passing him over for promotions, menial assignments, and so on” — will survive regardless. That includes the way that CNN privately communicated Wilson’s alleged violation of journalistic ethics, the basis for a defamation claim that is now deemed to not constitute conduct in furtherance of free speech rights in connection with a public issue. The full opinion (read here) concludes that what CNN told other employers about Wilson really didn’t contribute in any meaningful way to discussion or resolution of an ongoing matter of public significance given that the correspondence was private and Wilson was hardly a famous journalist.
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