Tuesday, December 27, 2016

The (e)(4) SLAPP Split Is Coming to a Head.

Wilson v. Cable News Network, No. B264944 (D2d1 Dec. 13, 2016)

This case is basically a retread of 2013’s Hunter v. CBS case. 

There, the Court of Appeal said that committing employment discrimination against a newscaster is “protected activity” under the anti-SLAPP statute because it is “conduct in furtherance” of First Amendment Activity as defined under Code of Civil Procedure § 425.16(e)(4). Except in this case the talent is off-air, and the discrimination (and retaliation) is on the basis of disability. Plus, it goes the other way.

In the three years since Hunter, other Court of Appeal cases like last summer’s Nam v. Regents have done a good bit to dismantle the logic of Hunter as well as Tuszynska v. Cunningham, an older case on whose rationale Hunter was based.  The majority here follows Nam and reverses.

There’s not a lot of new ground tread here, so if you’re curious, my prior posts on Hunter and Nam (and for that matter, Collier, Pebble Mines, Brodeur, and Park) pretty much describe the state of play.

What makes this case different, however, is that there is a dissent, by Justice Rothschild. He finds Nam unpersuasive, because it, to some extent, looks beyond whether the alleged conduct “helped” or “assisted” (i.e., was “in furtherance of”) something that looks basically First-Amendment-ish like reporting the news. 

It seems to me that the majority and Nam are right about the Hunter line of cases having misread prior precedent concerning the anti-SLAPP significance of a defendant’s intent in an employment discrimination case. But they are correct that the Supreme Court—in a much different context—did, in fact say that courts should not read a “proof-of-validity requirement into the operative sections of the statute[.]” See Navellier v. Sletten, 29 Cal. 4th 82, 94 (2002). It’s not clear if our how these lines of cases can be reconciled.  

At this point, it seems like it’s high time for the Supreme Court to wade in on this issue: How literally do we apply (e)(4)? Do we say it applies to anything that “helps” First Amendment protected activity? Stuff like sex discrimination in newscaster employment? Wiretapping in furtherance of litigation? Or do we read (e)(4)—as Justice Liu seemed to do in his City of Montebello v. Vasquez dissent—to actually examine, to some degree, at whether the “conduct” doing the “furthering” could potentially be protected by the First Amendment?

I suggested an approach in my post on Vasquez, but who knows? We’ll see.


**Update: Review Granted, Mar. 1, 2017.

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