Business Law Journal

In a previous blog post, we reported on the California Supreme Court’s interpretation of the statute’s “catchall” provision, which provides for dismissal of claims arising from “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  That provision was again at issue in Wilson v. Cable News Network, Inc. (2019), Case No. S239686, in which the court resolved a split of authority among the Courts of Appeal regarding the applicability of the catchall provision to employment-related claims.  Some courts of appeal had held that Section 425.16 could not be used to strike claims alleging discriminatory or retaliatory employment actions; those courts reasoned that the defendant’s discriminatory or retaliatory motive, and not a particular adverse employment action, is the basis for such cases and unlawful motives can never be entitled to constitutional protection.  In Wilson, the high court disapproved those cases and held that courts must look to the defendant’s alleged actions, not its motives, in determining whether a plaintiff’s claim implicates anti-SLAPP protections.

Wilson, a reporter who had been employed by CNN for 17 years, was terminated following an investigation by CNN into allegations of plagiarism.  In relevant part, he alleged that he belonged to several protected classes  — he is of African American and Latino heritage, over the age of 40, and took a leave of absence after the birth of his children in 2013 — and that CNN discriminated against and ultimately terminated him based on those characteristics and for complaining about unlawful discrimination. 

CNN filed a special motion to strike Wilson’s complaint under the anti-SLAPP law, arguing that Wilson’s employment claims arose from CNN’s decision to fire Wilson, which CNN argued was an act in furtherance of its right to determine who should speak for it on matters of public importance.  The trial court granted the motion to strike and dismissed Wilson’s claims.  A divided Court of Appeal reversed, agreeing with the courts above and holding that claims arising from alleged discrimination or retaliation in employment can never be based on an act “in furtherance” of a defendant’s speech or petitioning rights.  The Supreme Court disagreed with this conclusion as a categorical rule, and reversed the Court of Appeal’s judgment in part.

The Supreme Court first observed that claims arising from discrimination or retaliation in employment involve both an unlawful motive and an action by the defendant.  Both are necessary elements of such claims.  The Courts of Appeal who had categorically excluded employment claims from the ambit of Section 425.16 had incorrectly elevated the element of motive over the equally-necessary element of an action by the defendant (e.g., termination of employment), and made the former dispositive.  But it is the defendant’s actions that matter when considering whether the anti-SLAPP law applies in the first place.  Thus, the court concluded that an adverse employment action may be within the ambit of Section 425.16, if that action was itself taken in furtherance of speech or petitioning rights.  As the Supreme Court explained, however, “[c]ases that fit that description are the exception, not the rule.”

The Supreme Court recognized that almost anything a news organization does facilitates its free speech rights to some degree; a rather unique position for an employer.  But the fact there is some relationship between a particular action and an employer’s speech does not necessarily mean the relationship is sufficiently substantial to cloak the action in constitutional protection.  As a general rule, application of laws prohibiting discrimination and retaliation in employment should not affect a news organization’s ability to speak on matters of public importance. 

However, that rule has important exceptions.  The Supreme Court, Wilson, and CNN all agreed that a producer’s decision as to who would speak for the organization may constitute part of the message conveyed, potentially implicating free speech concerns.  Similarly, the decision to hire or fire an employee with ultimate editorial control over the news organization’s message (and lawsuits intended to influence those decisions) “could chill participation in the discussion of public issues, as surely as suits targeting the act of speaking itself.”  In the case before it, the Supreme Court found no evidence that Wilson’s role at CNN was such that he spoke for CNN or exercised ultimate authority over CNN’s message.  Thus, the court found that the CNN’s disciplinary action against Wilson, without more, did not bear a substantial enough relationship to its ability to speak on matters of public concern to trigger protection under Section 425.16.

However, the Supreme Court found the “more” it was looking for in CNN’s rationale for terminating Wilson: allegations of plagiarism.  News organizations have a recognized right to maintain and enforce codes of journalistic ethics in order to protect their editorial integrity and credibility, which “lies at the core of publishing control.”  Because CNN’s evidence established a connection between Wilson’s termination for alleged plagiarism and its right to maintain and enforce ethical standards, the termination qualified as an act “in furtherance of” CNN’s speech on public matters.  However, the court observed that Wilson’s termination was the only act that CNN tied to the allegations of plagiarism.  The other adverse actions that Wilson alleged — passing Wilson over for promotions, and giving him menial assignments, for example — occurred before CNN became aware of any plagiarism allegations and could not justify a special motion to strike.

Wilson resolves an important split of authority regarding the application of Section 425.16 to employment claims, and reaffirms that a defendant’s actions are the standard by which anti-SLAPP protection is measured.  The case also confirms that the Supreme Court is disinclined to entertain any categorical exclusions to the anti-SLAPP law’s reach, except for the commercial speech and public interest exceptions that are expressly created by statute.  Employment claims do not fall into either category, so they cannot be categorically excluded from the protection of the anti-SLAPP law. 

As Wilson confirms, there are no “one size fits all” approaches when it comes to California’s anti-SLAPP protections.  Businesses who are sued for a termination decision or for references concerning a former employee should discuss the lawsuit with an attorney promptly to determine what remedies are available.  If you have any questions about these issues, please contact the author.

This AALRR presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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