In CNN Free Speech/Bias Case, Calif. Considers SLAPP’s Reach - Shegerian Law

California Supreme Court justices appeared skeptical of CNN arguments that the state’s anti-SLAPP statute, which protects free speech rights in matters of public interest, should defeat a black ex-producer’s discrimination and retaliation lawsuit.

The acronym SLAPP stands for “strategic lawsuits against public participation.” Under the statute, a defendant in California arguing that a lawsuit is infringing its free speech rights can ask a court to dismiss the lawsuit on that basis.

Justices during an hourlong hearing May 7 questioned CNN’s arguments that the court need not balance First Amendment principles against civil rights interests to determine whether the anti-SLAPP statute (Code Civ. Proc. Section 425.16) applies. Editorial decisions, including whom to hire or what assignments to give, are connected to furthering public speech under the statute, said CNN attorney Adam Levin, partner with Mitchell Silberberg & Knupp LLP in Los Angeles.

Several justices repeatedly asked where to draw the line at the intersection of free speech, the state Fair Employment & Housing Act, and the anti-SLAPP statute. Justice Mariano-Florentino Cuéllar asked whether employment decisions are covered under the anti-SLAPP law when there’s “something that is very free speech-y” about that person’s job.

“We take the case as a foundation for using the law going forward,” Justice Carol Corrigan said. “We need to know how to craft some of these hypotheticals because that’s going to be the next case.”

Allowing media organizations a pass under the anti-SLAPP statute means “civil rights cases won’t be brought against media corporations,” said Jill P. McDonell, of counsel with Shegerian & Associates in Santa Monica, Calif., representing Wilson.

Chief Justice Tani Cantil-Sakauye asked whether CNN was seeking to insulate the media. “The worst that could happen here is you go to trial,” Cantil-Sakauye said.

“The worst that can happen is First Amendment rights are chilled,” Levin said.

The question for the court is will it chill First Amendment freedoms or exclude plaintiffs from seeking remedies for alleged discrimination, Corrigan said. “Is that the stark choice we face here?” she said.

The 1992 law continues to generate questions in a variety of areas as the court carves out guidelines for cases involving everything from employment to wrongful death.

Stanley Wilson, an Emmy Award-winning producer and writer and long-term Cable News Network employee, contends that the network tried to cloak his firing in the First Amendment. AT&T Inc.-owned CNN said it fired Wilson for plagiarism. The state court of appeal rejected the employer’s arguments and revived Wilson’s lawsuit alleging race and disability discrimination, defamation, and wrongful termination.

Justices the day before the CNN hearing held that a trade libel lawsuit could proceed in a case involving a company that argues it was unfairly labeled as a copyright violator. And the court just an hour after the CNN oral arguments ended heard arguments in a separate anti-SLAPP case over whether a lawyer can be bound by confidentiality agreements in a wrongful death settlement involving Monster Energy drinks.

More than a half-dozen employment cases were granted review with briefing deferred pending the court’s ruling in the CNN case. A ruling is due within 90 days.

The case is Wilson v. CNN Inc., Cal., No. S239686, oral arguments 5/7/19.


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