Wrongful Discharge Action Against CNN Not a SLAPP

Wednesday, December 14, 2016

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Wrongful Discharge Action Against CNN Not a SLAPP—C.A.

By a MetNews Staff Writer

The Court of Appeal for this district yesterday reversed a judge’s determination that a former Los Angeles-based CNN producer’s action against the network, in connection with his discharge, was a SLAPP.

“This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights,” Justice Elwood Lui of Div. One wrote for the majority. “Defendants may have a legitimate defense but the merits of that defense should be resolved through the normal litigation process, with the benefit of discovery, and not at the initial phase of this action.”

Presiding Justice Frances Rothschild dissented.

According to the complaint, plaintiff Stanley Wilson, a 51-year-old African-American/Latino-American, worked for CNN from 1996 until he was fired on Jan. 28, 2014.

He claimed he was denied each promotion he sought from the time Peter Janos, also a defendant, became western regional bureau chief in 2004, attributing this to Janos’s dislike of him.

Wilson claimed Janos gave a choice assignment to a Caucasian man younger than he, and less qualified. He attributed this to his “age, race, color, association with a disabled person [his wife], and ancestry,” and in retaliation for his taking paternity leave and uttering internal complaints about discrimination at CNN.

Fired for Plagiarism

The plaintiff contested the legitimacy of the reason given for his discharge: plagiarism.

Wilson occasionally wrote articles for CNN.com. On Jan. 7, 2014, he was assigned to cover a press conference at which then-Sheriff Lee Baca announced his impending retirement.

Lui provided a comparison of copy Wilson turned in—which CNN did not publish—and the Los Angeles Times article on the event:

“The first of these in plaintiff’s article was ‘who spent 48 years with the department, including 15 as sheriff’; the Times article had identical text, minus the comma. The second controversial segment in plaintiff’s article stated, ‘The news of Baca’s decision to step down startled people inside and outside the agency. He was engaged in a tough re-election battle amid several scandals that had plagued the department.’ The Times article stated, ‘The news of Baca’s decision to step down stunned people inside and outside the agency. He was locked in a tough reelection battle amid several scandals that had beset the department.’ The third passage in issue in plaintiff’s article stated, ‘Last year, the U.S. Department of Justice also accused sheriff’s deputies of engaging in widespread unlawful searches of homes, improper detentions, unreasonable force and a systematic effort to discriminate against African Americans who received low-income, subsidized housing in the Antelope Valley section of Los Angeles.’ The comparable segment of the Times article was, “Last year, the U.S. Department of Justice accused sheriff’s deputies of engaging in widespread unlawful searches of homes, improper detentions and unreasonable force as Antelope Valley authorities conducted a systematic effort to discriminate against African Americans who received low-income subsidized housing.’ ”

No Protected Speech

Lui said the first prong of the anti-SLAPP statute was not met because Wilson’s lawsuit did not threaten CNN’s protected speech. He wrote:

“With respect to his ‘employment-related claims,’ i.e., those alleging discrimination, retaliation, wrongful termination in violation of public policy, and failure to prevent discrimination, retaliation and harassment, plaintiff contends that defendants’ ‘behind-the-scene treatment of a behind-the-scene producer’ is neither in furtherance of defendants’ free speech nor in connection with a matter of public interest. Defendants, in contrast, argue 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.’ They further argue their alleged discriminatory “motive” is irrelevant to the ruling on the anti-SLAPP motion….[W]e agree with plaintiff that the discrimination and retaliation he has alleged are not acts in furtherance of defendants’ free speech rights.

“Undoubtedly, a producer or writer shapes the way in which news is reported. Thus, defendants’ choice of who works as a producer or writer is arguably an act in furtherance of defendants’ right of free speech. But this does not mean that defendants’ alleged discrimination and retaliation against plaintiff—a long-term, well-reviewed existing employee that CNN had already deemed qualified and acceptable to shape its news reporting—was also an act in furtherance of its speech rights.”

The jurist went on to say:

“Wilson’s allegations that beginning in 2004 and continuing thereafter, he was subject to discrimination, harassment and retaliation because, inter alia, he was African American and disliked by his superiors. He alleges that he repeatedly complained of his circumstances to no avail. Viewed from this perspective, Wilson alleges causes of actions that neither implicate CNN’s First Amendment rights nor are a matter of public interest.”

Defamation Action

Wilson also sued for defamation, claiming the allegation he had committed perjury was false.

Lui pointed out that the plaintiff did not appear on the air and was not a well-known figure. He remarked:

“While plagiarism by an international news figure such as Fareed Zakaria might constitute an issue of public interest, plaintiff was a behind-the-scenes person the public probably had never heard of….”

He said that while Baca leaving office was a matter of public interest, the charge that Wilson committed plagiarism “was entirely collateral to the issue of Baca’s retirement and was not made to the public.”

Lui was joined by Justice Victoria Chaney.

Rothschild’s Dissent

Rothschild’s view was that Los Angeles Superior Court Judge Mel Red Recana appropriately granted the anti-SLAPP motion, maintaining that the evidence showed that “Wilson had a significant role in shaping and reporting the news.”

She said in her dissent:

“[T]here is no dispute that when CNN reports the news to the public it is exercising its right of free speech under the First Amendment….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 presiding justice declared:

“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 and made in connection with issues of public interest.”

The case is Wilson v. Cable News Network, Inc., B264944

Lisa L. Maki, Jill McDonell, Jennifer Ostertag of the Law Offices of Lisa L. Maki, joined with Carney R. Shegerian of Shegerian & Associates in representing Wilson. Arguing for CNN were Adam Levin and Jolene Konnersman of Mitchell Silberberg & Knupp. Kelli L. Sager, Rochelle Wilcox, and Dan Laidman of Davis Wright Tremaine presented views of amici curiae.