Waiting on Wilson

Rall v. Tribune 365 LLC, No. B284566 (D2d8 Jan. 17, 2019)

In 2015, a Cartoonist and blogger for the Los Angeles Times wrote a blog post complaining about the way an LAPD officer treated him during a jaywalking stop back in 2001. That must peeved the LAPD pretty bad. Because the cops dug up evidence that the stop—fourteen years in the past—didn’t go down the way Cartoonist claimed and gave it to the Times. The Times did its own investigation. It decided that Cartoonist wasn’t playing it straight. The Times ultimately published a statement and a report of its investigation. It cut ties with Cartoonist and stopped publishing his work. 

Cartoonist sued for defamation, blacklisting, retaliatory termination, and breach of contract. That drew the inevitable anti-SLAPP motion. Which was granted. Cartoonist appeals.

The defamation claims are easy. Cartoonist is suing a newspaper over its reporting of the news. Police misconduct is a matter of public interest. As is the accuracy of the reporting of the newspaper of record. So the claim arises from protected activity under Code of Civil Procedure § 425.16(e)(3). Moreover a newspaper’s report of a police encounter is subject to the fair reporting privilege in Civil Code § 47(d). 

The employment claims, however, fall into the Hunter/Wilson split of the interpretation of the (e)(4) catchall that I’ve written about many times. Wilson is currently pending before the Supreme Court, fully briefed, and will likely get argued in the next six months. The Court here takes the Hunter side, characterizing the Times’ decision to stop printing Cartoonist’s work as grounded in its “right to choose what to print and what not to.” And since Cartoonist’s employment claims are weak, he can’t prevail.

I’m more of a Wilson guy, personally. The free speech issue in these media employment-type claims is generally the employer’s defense. Employee says you fired me for some illegal reason. There’s no First Amendment right to retaliate. But the employer responds no, we were actually making an editorial decision, not retaliating. The employee’s claim, however, doesn’t arise from that; it arises from the allegation that the reason was illegal. That a defendant is in the media biz shouldn’t give it a special out from employment law. 

Anyway, I suspect this case might have a grant and hold in its future, pending the outcome of Wilson.

Affirmed.