In an interesting, but probably predictable development, a California state appeals court found that a former CNN employee’s discrimination case against the news network can proceed, reversing a lower court’s decision that the network was protected by that state’s anti-SLAPP statute.
SLAPP stands for Strategic Lawsuit Against Public Participation. Wikipedia defines SLAPP lawsuits as “intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition” and that definition is pretty considered with everyone else’s definition. The California appeals court, in this case, relies on precedent and describes them as follows: “The quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition. The objective of the litigation is not to prevail but to exact enough financial pain to induce forbearance.” Wilson v. CNN, et al, No. B264944 (Cal. Ct. App. Dec. 13, 2016)(internal citation omitted).
States like California have adopted anti-SLAPP statutes which aim to shift the financial risk to the person filing the suit. Basically, if you have been served with a SLAPP statute, you can file an anti-SLAPP motion to strike the case because it involves ostensibly public speech. The person who sued you then needs to show that they are more likely than not to prevail. If they lose, many anti-SLAPP statutes let the Defendant collect attorney’s fees.
In this California case, the Plaintiff sued CNN for age and race-based discrimination. At the trial court level, CNN claimed the lawsuit was a SLAPP suit and that “because CNN is a news provider, all of its staffing decisions regarding plaintiff were part of its editorial discretion and so inextricably linked with the content of the news that the decisions themselves are acts in furtherance of CNN‘s right of free speech that were necessarily ̳in connection‘ with a matter of public interest news stories relating to current events and matter[s] of interest to CNN‘s news consumers.” The trial court agreed and punted the case.
It’s an interesting strategy, but ultimately did not survive scrutiny.
The appeals court went the other way, ruling this week that, “we reject defendants‘ characterization of their allegedly discriminatory and retaliatory conduct as mere ―staffing decisions in furtherance of their free speech rights to determine who shapes the way they present news. The press has no special immunity from generally applicable laws. . . . As previously noted, ―[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. Moreover, the statute does not automatically apply simply because the complaint refers to some protected speech activities.” (internal citations omitted).