Wilson Day Has Arrived.

Wilson v. Cable News Network, Inc., No. S239686 (Cal. Jul. 24, 2019)

Yesterday was a big day for California Civil Procedure, with the California Supreme Court handing down two decisions of procedural significance. I’ll address the second tomorrow.

But the first was the Court’s long-awaited anti-SLAPP decision in Wilson v. CNN. Wilson addresses the scope and meaning of Code of Civil Procedure § 425.16(e)(4)’s “other conduct in furtherance” element as applied to an employment discrimination claim. If you follow this kind of thing, you should read the whole opinion, which has tons of interesting anti-SLAPP discussion.

I have spent a lot of time thinking and writing about this (e)(4) issue over the past decade and a half, so sorry for the long post. Overall, Wilson is a good opinion with a generally correct result. I’m not sure I agree with every step of the Court’s analysis, but it’s navigating a very complicated space and nothing in its reasoning isn’t generally defensible under the text of 425.16 and the Court’s prior decisions. (Except for maybe footnote 7 . . . .) Anyway, I wanted to get this out quickly, so these are initial thoughts. If I had more time, I would have made it shorter.

In a unanimous opinion written by Justice Kruger, the Court reverses the Court of Appeal, in part. The opinion has five essential holdings: (1) Employment discrimination claims are not categorically excluded from the anti-SLAPP regime. (2) Employment decisions are generally not conduct in furtherance of a media defendant’s expressive speech, although they can be if they have a “substantial effect on the organization’s ability to speak as it chooses on matters of public concern.” (3) A broad claim that firing basically any editorial employee is protected does not satisfy that test. (4) But a narrower claim that firing plaintiff for alleged plagiarism does meet the “in furtherance” test, because that decision is part of the news organization’s maintenance of journalistic standards. Thus, the claims that had termination as an element met the arising from test, although only to that extent. And (5) Plaintiff’s defamation claim survives because the defamatory speech at issue was private and the discussion of plaintiff did not itself arise to an issue of public concern.

1.

I have mixed feelings about the first issue. I don’t like the way it was framed, which was a strategic mistake on the part of the Plaintiff. The question isn’t really whether discrimination claims are categorically excluded from anti-SLAPP treatment, but whether they “arise from” the alleged adverse employment action, uncoupled from discriminatory intent. 

I have come out the other door in the past, but I can see the logic of the Court’s analysis, which is much sharper than the prior Court of Appeal cases that take that direction. The Court’s result flows from its 2017 decision in Park v. Board of Trustees of California State University, 2 Cal. 5th 1057 (2017).  As the Court notes, Park says “courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” Id. at 1063.  If the protected activity does not make up the elements, the claim does not arise from it.

The Court explains that there are two essential elements common to Plaintiff’s employment claims: (1) a termination or other employment action; (2) which is accompanied by an unlawful motive. Obviously (2) is not protected activity. So the issue, then, is whether a claim can “arise from protected activity” when only one element is protected. That wasn’t directly at issue in Park—the conduct there didn’t make up any element at all. Indeed, the Park Court generally referred to the conduct as constituting the elements (in the plural), although in one description of a Court of Appeal case, which it subsequently disapproved, it referred to allegedly protected conduct as providing “an essential element.”

The Court here finds any one element to be sufficient. The Court recognizes that many torts combine elements of conduct with guilty states of mind states of mind. As in employment cases, in these other contexts, the conduct would be otherwise innocent if mens rea were not present. It is lawful to file a lawsuit, but malicious prosecution to file one with an intent to impoverish the defendant. It is lawful to possess a screwdriver, but unlawful to do so with an intent to break into a dwelling. In these cases, as in employment, it is also equally true that the mens rea would ascribe no liability in the absence of the conduct. “For pleading purposes, both [elements of an employment discrimination claim] are necessary elements; neither is privileged over the other.” Thus, an employment discrimination case can arise from a termination for the purposes of the anti-SLAPP statute even if the termination would be lawful only in the absence of an intent to discriminate.

I find this mode uncomfortably formalistic. Does an employment discrimination claim really arise from the mere decision to fire the plaintiff? Or does it arise from racial discrimination in the termination? The analysis requires courts to break a claim into its distinct elements and then give each element an equal and independent value for the purpose of the “arising from” test. 

All elements are, of course, logically necessary to liability—it’s axiomatic to the nature of elements. But aren’t some elements more essential than others when examining the fundamental basis of the claim? For instance, some claims require the plaintiff to allege compliance with prefiling administrative procedures. See, e.g., Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 382 (2005) (PAGA prefiling procedures must be alleged). It is somewhat awkward to say those kinds of claims really arise from compliance with the administrative procedure. Must every claim be capable of arising from a single element? Or could it sometimes arise only from the conjunction of several elements?

That all said, the Court is clearly embarked on a project of getting rid of “I know it when I see it” tests in the anti-SLAPP analysis. It’s incredibly hard to come up with a different test that would be subject to consistent application. Why, for instance, should an employment case arise only from the conjunction of two distinct elements when a malicious prosecution claim can clearly arise just from the protected act of filing of a lawsuit, even when the plaintiff also alleges malice? I don’t have a good answer. Plaintiff certainly didn’t offer one. So it’s hard to fault the Court for taking the only path available, especially when it is basically reconcilable with the text of the statute and the case law, even if it isn’t very satisfying in all contexts.

I’m kind of annoyed by footnote 7, however, because it is not technically correct. It collects cases that it says “have correctly recognized that the text of the anti-SLAPP statute and our precedent require a court at the first step to examine the defendant’s actions without regard to the plaintiff’s allegations about the defendant’s motives.” But with one exception, the cited cases don’t “correctly” rely on a Park-type elements analysis. Instead, they repeat a citation error, originally make in Tuszynska v. Cunningham, 199 Cal. App. 4th 257 (2011), which incorrectly cited a passage in Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002) for the point about the defendant’s motives not mattering. But Navellier only explains that a plaintiff’s—not the defendant’s—intent does not matter. I.e., the moving defendant does not have to show the plaintiff brought the case with an intent to its chill free speech. That’s nowhere close to the same point. (See discussion of the Court of Appeal’s later-reversed decision in Park.) Especially since the Court disapproved Tuszynska when it reversed the Court of Appeal in Park, it bothers me that it gets revived here with so little consideration.

 Finally, the Court pauses to note that there is some policy concern to applying the anti-SLAPP statute to employment discrimination claims, which often entail difficult to prove questions about the defendant’s true motive. It notes that trial courts have discretion to permit discovery on that issue under §425.16(g) when there’s good cause. That could potentially be satisfied if the moving defendant puts in a bunch of evidence about its own intent on the “arising from” element. 

2. 

On issue 2, the Court interprets (e)(4) in a cogent way. As I noted in my post on Brodeur v. Atlas Entertainment Inc., 248 Cal. App. 4th 665, 668 (2016), the structure of 425.16(e) calls out for the application of edusdem generis. That is, (e)(4) should be understood as a catchall for the same kinds of acts that are protected under (e)(1), (2) and (3), but for various reasons fall marginally outside the specific criteria of those sections. Which is what the court does here. So (e)(4) applies to expressive conduct—“the burning of flags the wearing of armbands, and the like[.]” But also to certain speech that falls outside of (e)(1)-(3), as well as “conduct that, thought itself containing no expressive elements, facilitates expression.”

The Court adopts a test that basically addresses the concerns I noted in my post on the Court’s 2016 decision in City of Montebello v. Vasquez, 1 Cal.5th 409, 419 (2016). As Justice Liu’s Vasquez dissent implied, you can’t practically apply (e)(4) without looking outside the anti-SLAPP statute to see if there’s some bona fide First Amendment interest in the defendant’s conduct. Otherwise (e)(4)’s protection of “conduct in furtherance” of speech or petitioning literally applies to breaking and entering to get a news story, or threatening witnesses or bribing judges to win a litigation. The Court seems to accept that point, although it does not go into a great degree of detail on why.

The Court then jumps into an analysis of when the First Amendment protects the employment decisions of newspapers from scrutiny under laws of general application. (Many newspapers are unionized, so there are a lot of labor law cases that touch on the issue.) The Court settles on the answer that First Amendment protection is rare, but not impossible, and determines that to merit protection, the employment decision needs to “bear[ ] a sufficiently substantial relationship to the organization’s ability to speak on matters of public concern.”

And here’s where the innovation comes in. Relying on § 425.16(b)(2), the court declines to accept the complaint as dispositive. Plaintiff alleged something that’s clearly not protected by the First Amendment (i.e., being fired from his job because he is black). But the court permits the CNN to meet its prima facie burden by coming forward with evidence the draws the connection between the element-forming conduct alleged and its potential protection by the First Amendment, even though this evidence disputes the intent element of the claim. The defendant can’t meet the arising from test just by positing some free speech interest extrinsic to the complaint. But it can make a prima facie showing on the issue and bring the case into the protection of the anti-SLAPP statute. And per Vasquez, the Defendant does not need to prove protection. It only needs to make an upfront showing of legal and factual validity.

That’s a little confusing to me. Not that evidence can be considered during the first stage. It clearly can. But that evidence of the moving defendant’s defense can be considered. That seems in tension with § 425.16(b)’s application to “[a] cause of action,” which the Court in Baral v. Schnitt, 1 Cal. 5th 376 (2015) read as the Legislature’s intention to have the motion apply only to the “allegations of protected activity that are asserted as grounds for relief.” That CNN fired plaintiff for some reason other than his race is not so asserted. It’s unlcear why or how a claim can arise from evidence that disputes the merits of the plaintiff’s allegations. 

On the other hand, as the Court points out elsewhere, if we can’t consider evidence of the defense, allegations of discriminatory intent will be presumed true. And as we just discussed, the First Amendment merits actually matter for (e)(4). Discrimination is generally unprotected by the First Amendment. So the practical result of barring evidence on a defense would be to categorically exempt discrimination claims from anti-SLAPP protection. Which the Court already said it didn’t want to do.

In any event, the Court then considers the above standard and the evidence in support in two applications, which lead to holdings 3 and 4. 

3.

The Court first addresses CNN’s general claim that any employment decision concerning editorial staff is in furtherance of its First Amendment conduct. The Court doesn’t buy it. As I noted, if the First Amendment precludes regulation of basic staffing decisions about editorial employees, the labor laws could not apply to newspapers to TV stations. But they clearly do. So unless CNN could come forward with some evidence that showed that firing Plaintiff was integral to its decision about what news to air, firing him was not protected.

4.

The Court, however, comes out differently on CNN’s specific rationale for the termination: that Plaintiff had committed plagiarism. CNN came forward with a bunch of evidence on the point. The Court notes that a newspaper’s decisions about journalistic ethics are a core First Amendment function that is generally found to be outside the scrutiny of generally applicable laws, including again labor law. As the Court explains it, “[d]isciplining 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.”

So, regardless of whether CNN could ultimately prove that plagiarism justified the firing, it came forward with prima facie evidence sufficient to show that its decision could be protected under the First Amendment. That said, plaintiff alleged a number of adverse employment actions (non-promotions, menial assignments, etc.) that occurred before both the termination and CNN’s knowledge of any potential plagiarism. So, parsing “claims” under the Baral standard, CNN satisfied its “arising from” burden only for the termination. On remand, Plaintiff only has to satisfy prong two by coming forward with evidence on that part of the claim.

5.

Finally, Plaintiff plead a defamation claim based on a CNN HR manager’s having told Plaintiff’s supervisor that Plaintiff had plagiarized. The principal dispute is over whether the statements were made in connection with a public issue or issue of public interest. The court expounds on its edjusdem generis discussion from the prior analysis to explain that while (e)(4) can apply to some private speech, it still needs to meet the public issue/public interest test. As the Court’s recent decision in FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133 (2019) explains, that requires CNN to show that the speech “contributes to or furthers the public conversation on an issue of public interest.” Indeed, CNN’s burden to show contribution to the public discussion is “ma[de] heavier” given that the private nature of the speech takes the claim out of (e)(3)’s protection of public forum speech.

CNN claims the statement related to three issues. The Court rejects each of them.

First, it says the subject of the alleged plagiarism—LA County Sheriff Lee Baca’s retirement under a cloud of scandal—was an issue of public interest. Which it most certainly was. But the substance of the statements were about the plagiarism, not Baca. The relationship between Baca and the statements—the basis to fire Plaintiff—was tangential at best.

Second, CNN says the plaintiff’s termination and the reason for it were matters of public significance. But plaintiff isn’t a public figure and “absent unusual circumstances, a garden-variety employment dispute concerning a nonpublic figure will implicate no public issue.” That said, being a public figure might be a sufficient grounds to make an employment based statement of public interest. It is not, however, a necessary one. In this case, however, CNN didn’t present any evidence showing the unusual circumstances that would make a public issue out of a statement regarding a nonpublic figure’s employment dispute.

Finally, CNN claims that the broader topic of the statement—journalistic ethics—is a public issue. But that runs into FilmOn’s rejection of the “synecdoche theory of public issue”—the idea that the subject of a relatively specific statement can be generalized so that it is equivalent of a broader discussion. And similarly, there’s no evidence that the statement “contribute[d] in any meaningful way to discussion or resolution of an ongoing matter of public significance” as required by FilmOn.

Thus, CNN didn’t meet its burden on the defamation claim.

This all seems perfectly right. 

It does beg a question, however. The “public issue” requirement also applied to the claims based on the termination. How can the act of firing plaintiff for plagiarism be connected to a public issue when a conversation on that very topic cannot? Is there something about the nature of the firing that makes it a more public act? The Court’s only discussion that touches on this point addresses how CNN’s broadcasts include extensive public issue speech, the credibility of which could be called into question by plagiarism. That too sounds kind of synecdoche-ey to me.

But I guess there’s some distinction in that the firing was conduct in furtherance of other speech by CNN on public issues, while the defamation is based on CNN’s speech qua speech. It’s potentially different speech we’re talking about. But the inconsistency seems a somewhat problematic and I wish there were a little more explanation.

*   *   *

Anyway, this is a very important decision that, although quite narrow in result, is going to control a lot of cases. Indeed, there are a raft of grant-and-holds that are very soon going to get remanded to the Court of Appeal for consideration consistent with this case and FilmOn. (A bunch of these are listed in footnote 3 of the opinion.) These include, to my estimation, three of the most perplexing anti-SLAPP results of the past three years—Daniel v. Wayans, 8 Cal. App. 5th 367 (2017); San Diegans for Open Government v. San Diego State University Research Foundation, 13 Cal. App. 5th 76 (2017); and Symmonds v.Mahoney, 31 Cal. App. 5th 1096 (2019). Symmonds and Wayans should readily go down on FilmOn’s refinement of the public interest/public issue test. And I doubt that SDOG, which addressed an interest in reporting way more attenuated than hiring editorial staff, makes it past the “in furtherance” analysis set out here.

Court of Appeal reversed in part.