Fired CNN Writer’s Bias Claims Revived by California Court

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By Kevin McGowan

A black CNN producer/writer fired after an alleged plagiarism incident may pursue race bias and retaliation claims against the media giant, a divided California Court of Appeal ruled ( Wilson v. Cable News Network, Inc. , 2016 BL 414314, Cal. Ct. App., No. B264944, 12/13/16 ).

The decision is significant because the appeals court rejected CNN’s attempted use of the state’s “anti-SLAPP” statutes to dismiss fired employee Stanley Wilson’s claims, attorneys representing Wilson said Dec. 14.

The acronym SLAPP stands for “strategic lawsuits against public participation.” Under California’s anti-SLAPP laws, a party that argues a lawsuit is infringing its rights to engage in free speech or participate in the political process can ask a court to dismiss the case.

CNN argued that allowing Wilson to sue over his January 2014 termination for alleged plagiarism would curtail its free speech rights in violation of the public interest.

But the anti-SLAPP statutes didn’t apply in this case, the appeals court decided Dec. 13.

That’s a big victory for workers with bias claims, particularly in the media and entertainment industries, said Carney Shegerian, a Santa Monica lawyer who represented Wilson.

California employers recently have been “abusing” the anti-SLAPP laws, using them for purposes for which they were never intended, Shegerian told Bloomberg BNA.

Employers’ use of the anti-SLAPP tactic potentially deters employees’ bias claims by forcing costly litigation at the outset, Shegerian said.

It’s becoming “more common” for California employers to file anti-SLAPP motions in bias lawsuits, said Lisa L. Maki, a Los Angeles lawyer who also represented Wilson.

The decision against CNN is “very significant” because it establishes an employer’s “discriminatory conduct is not free speech,” Maki told Bloomberg BNA.

Attorneys representing CNN weren’t immediately available for comment.

Alleged Bias Isn’t Protected Speech

CNN and its affiliates, Turner Broadcasting System Inc. and Turner Services Inc., last week were sued in a separate class action alleging systemic discrimination against black salaried employees.

Wilson, a longtime producer and writer for CNN’s cable network and its website, sued under California law for race, age, ancestry and disability discrimination and retaliation after he was fired for allegedly copying without attribution parts of a news item that CNN never ran.

A state superior court granted CNN’s anti-SLAPP motion and dismissed Wilson’s lawsuit. That court said allowing the bias claims to proceed would infringe CNN’s First Amendment rights to defend against plagiarism.

But the California Court of Appeal said CNN failed to satisfy the anti-SLAPP law. The law requires a showing the plaintiff’s claim “arises from an act in furtherance” of the employer’s right of free speech in connection with a public issue.

The alleged acts of discrimination and retaliation against Wilson “are not acts in furtherance” of CNN’s free speech rights, Justice Elwood Lui wrote in an opinion joined by Justice Victoria G. Chaney.

Media companies have no general right to invoke a free speech defense to discrimination claims by employees in news-gathering and writing positions, the court said.

Rather, CNN, like any other employer, will get the chance to argue it had legitimate, nondiscriminatory reasons for its termination decision, the court said.

Dissent Would Uphold CNN’s Motion

In dissent, Presiding Justice Frances Rothschild said CNN properly invoked the anti-SLAPP statute because it showed Wilson’s claims stem from acts related to the company’s free speech rights.

There’s “no dispute that when CNN reports the news to the public it is exercising its right of free speech under the First Amendment,” she wrote. “Acts that help advance or assist CNN in the exercise of that right are ‘acts in furtherance of the right of free speech’ for purposes of the anti-SLAPP statute.”

The court majority erred by assuming that if CNN can invoke the anti-SLAPP statute, then the employee’s discrimination claims must be dismissed, the dissent said.

Instead, those are two separate inquiries, the dissent said. “When the anti-SLAPP law applies, it only requires the plaintiff to show that the lawsuit has some ‘minimal merit’ before proceeding,” Rothschild wrote.

It would eviscerate the anti-SLAPP law to rule it could never apply to claims raised by an employee alleging discrimination, the dissent said.

A separate California appeals court panel has ruled the anti-SLAPP law applied to a TV station’s decision not to hire someone as the on-air weather anchor, the dissent noted.

“I would hold that a news organization’s employment decisions concerning a person, like Wilson, who has an undisputedly central role on the content of the news, concerns an act in furtherance of the organization’s First Amendment rights,” Rothschild wrote.

Mitchell Silberberg & Knupp represented CNN.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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