Wednesday, December 18, 2013

Text vs. Purpose in the Anti-SLAPP Regime
(We'll Need More than a Weatherman....)

Hunter v. CBS Broadcasting, No. B244832 (D2d7 Dec. 11, 2013)
 

The court of appeal holds that a TV station’s selection of its weather anchor is conduct in furtherance of its right to free speech in connection with an issue of public interest and thus that a discrimination complaint challenging its selection arises from protected activity under the anti-SLAPP statute.

Kyle Hunter applied for a job as the primetime weatherman at two local LA CBS affiliates. When he lost out to two younger (and more attractive) women, he hired Gloria Allred and sued for gender and age discrimination under the Fair Employment and Housing Act. CBS responded by filing an anti-SLAPP motion, arguing that Hunter’s claimed arose from CBS’s constitutionally protected decisions regarding the selection of its on-air talent. The Superior Court didn’t buy the argument and denied the motion, holding that CBS’s hiring of weather anchors did not constitute conduct in furtherance of CBS’s right to free speech in connection with a public issue under Code of Civil Procedure § 425.16(e)(4). CBS appealed.

The court of appeal reasoned that news reporting is quintessential protected first amendment activity and that hiring decisions about on air talent are “essentially casting decisions” made in furtherance of that reporting. It rejected Hunter’s argument that the gist of his suit was discriminatory intent, not decisions related to the reporting of the news. Relying on Tuszynska v. Cunningham, 199 Cal. App. 4th 257 (2011), a case holding that the anti-SLAPP statute applied to a gender discrimination case related to attorney selection, the court reasoned that when conducting the “arising from” analysis, the court looks to the “injury-producing conduct,” and not to the defendant’s motive in carrying out that conduct. Because CBS’s conduct that injured Hunter was its selection of weather anchors other than Hunter, it was that conduct that was at issue for the purposes of applying the “arising from” analysis under the anti-SLAPP statute. The court also rejected Hunter’s argument that the anti-SLAPP statute should not apply to discrimination claims because it would improperly immunize discriminatory conduct. Because the statute only permits dismissal of claims after a showing that they lack even minimal merit, it did not create any immunity. To hold otherwise would conflate the first “arising from” prong of the analysis with the second “merits” prong of the analysis.

Finally, the court also held that Hunter’s cause of action satisfied § 425.16(e)(4)’s requirement that the conduct be “in connection with a public issue or an issue of public interest.” The reporting of weather is a matter of widespread public interest and CBS’s decision about who would present that information as sufficiently “connected” with the issue to satisfy the statutory language. Thus, because CBS had satisfied the first element of the analysis, the trial court erred by denying the motion on that basis. The case thus needed to be remanded to the trail court to conduct the second part of the analysis—an assessment of whether Hunter could establish a prima facie case on the merits.

Reversed and remanded.

I think I’m with Professor Martin on this one. This case feels wrongly decided. The idea that a discrimination plaintiff should have to prove up the merits of his  case without the benefit of discovery just because his prospective employer’s business operations touch on the First Amendment is a bad result. Indeed, it is anathema to the well-established principle that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991). Employment discrimination cases in the media industry were surely not the kinds of speech and petition-chilling lawsuits that the legislature had in mind when it enacted § 425.16(e)(4).

That all said, I find it hard to say precisely why this result falls outside of the plain language of § 425.16(e)(4), particularly as has it been construed in earlier cases. The anti-SLAPP statute gets interpreted broadly, and it is difficult to articulate why the hiring decisions of businesses that employ people to engage in expression or advocacy on their behalf do not “arise from”:

(1) “conduct in furtherance” (i.e., picking the on-air talent);

(2) “of the exercise of . . . the constitutional right to free speech” (i.e., reporting the news);

(3) “in connection with a public issue or an issue of public interest” (i.e., the weather).

Beyond futilely arguing for a categorical non-textual exception for employment litigation, cf. Navellier v. Sletten, 29 Cal. 4th 82, 92 (2002) (“Nothing in the statute itself categorically excludes any particular type of action from its operation, and no court has the power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.”), there might be a couple ways to pick this text apart. For instance, as discriminatory intent is the crux of a discrimination claim, we could argue that the intent forms all or most of the “conduct,” at issue, and thus that an employment discrimination claim does not “arise from” non-incidental First Amendment conduct. We could construe the “in furtherance” language that is unique to subdivision (e)(4) narrowly or apply an tight attenuation rule to it. We could similarly read “in connection with” in a limiting way. But each of these arguments—some of which Hunter appears to have made—is swimming against the current of the case law, including several prior Supreme Court cases. Indeed, the court’s analysis here does not seem to be a stretch from how the provision has been construed in prior cases. But the result does not sit well.

It's worth noting that cases arising from a different context—the conduct of attorneys in furtherance of prosecuting litigation—have also encountered difficulty in line-drawing under § 425.16(e)(4). Compare Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal. App. 4th 658, 672 (2005) (fomenting bankruptcy litigation in order to interfere with an SEC investigation comes within subsection (e)(4)) with Gerbosi v. Gaims, Weil, West & Epstein, LLP, 193 Cal. App. 4th 435, 446 (2011) (holding that wiretapping does not) and Malin v. Singer, 217 Cal. App. 4th 1283, 1303–04 (2013) (same, along with computer hacking). The rationales in Gerbosi and Singer about why wiretapping and hacking in furtherance of litigation are beyond the protection of § 425.16(e)(4)—essentially, that the anti-SLAPP regime was never meant to protect such conduct—are no more grounded in the text of the statute than the arguments about employment discrimination that Hunter made here. Yet, unlike this case, they reached what feels like the proper results.

So, where things stand, it looks like the are two options: The Supreme Court can step in to clear the decks of some of the broader precedent, particularly when it comes to subsection (e)(4).  Or the legislature could come up with a fix, perhaps by adding FEHA litigation to the statutory exceptions in § 425.17. We’ll see.

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