Tuesday, July 23, 2019
California Supreme Court:
Kruger Says News Organization’s Need to Penalize Plagiarism Implicates First Amendment
By a MetNews Staff Writer
The firing of a journalist for plagiarism implicates the employer’s First Amendment right, the California Supreme Court held yesterday, reversing a determination by the Court of Appeal for this district that CNN failed to show that the first prong of the anti-SLAPP state—protected activity—was met in a wrongful discharge case.
A dismissal based on stealing the work of others furthers a news organization’s interest in maintaining its credibility, the state’s high court declared.
But, a unanimous court said in an opinion by Justice Leondra R. Kruger, a special motion to strike does not lie in connection with plaintiff Stanley Wilson’s cause of action for defamation in the form of CNN privately telling prospective employers and others that he was discharged for plagiarizing a 2014 Los Angeles Times article on the resignation of Sheriff Lee Baca.
CNN relied on the portion of the anti-SLAPP statute, Code of Civil Procedure §425.16, applicable to “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.” Kruger said the defamation action does not come under the statute because “Wilson is not a figure so prominently in the public eye that any remark about him would qualify as speech on a matter of public concern.”
Causes of action for alleged illegal discrimination and retaliation also survive, Kruger said. In connection with such claims, an anti-SLAPP motion might lie, she declared—contradicting the contrary view expressed in the Court of Appeal’s Dec. 13, 2016 majority opinion—but doesn’t in the present case because Wilson’s role at CNN as a producer and writer was too minor.
“CNN’s decisions concerning which assignments to give Wilson and whether to continue employing him, without more, had no substantial relationship to CNN’s ability to speak on matters of public concern,” she wrote.
Addressing the broad issue, the jurist wrote:
“Some courts of appeal, including the court in this case, have concluded the anti-SLAPP statute cannot be used to screen claims alleging discriminatory or retaliatory employment actions. We hold otherwise. The statute contains no exception for discrimination or retaliation claims, and in some cases the actions a plaintiff alleges in support of his or her claim may qualify as protected speech or petitioning activity under section 425.16. In such cases, the plaintiff’s allegations about the defendant’s invidious motives will not shield the claim from the same preliminary screening for minimal merit that would apply to any other claim arising from protected activity.”
Explaining the partial reversal of the Court of Appeal, Kruger said:
“Plagiarism is universally recognized as a serious breach of journalistic ethics. Disciplining an employee for violating such ethical standards furthers a news organization’s exercise of editorial control to ensure the organization’s reputation, and the credibility of what it chooses to publish or broadcast, is preserved. These objectives lie ‘at the core’ of the press function.”
“CNN has made out a prima facie case that its staffing decision was based on such considerations, and that such decisions protect the ability of a news organization to contribute credibly to the discussion of public matters. The staffing decision thus qualifies as ‘conduct in furtherance’ of CNN’s ‘speech in connection with’ public matter.”
Div. One of this district’s Court of Appeal reversed Los Angeles Superior Court Judge Mel Red Recana’s judgment in favor of CNN after granting its anti-SLAPP motion as to all causes of action. In light of the majority’s view that CNN had failed to show any protected activity, there was no review of Recana’s finding that Wilson could not satisfy the second prong—that the cause of action has minimal merit—with respect to wrongful discharge.
The Supreme Court ordered a remand for that determination to be made.
Then-Justice Elwood Lui (now presiding justice of Div. Two) wrote the Court of Appeal’s majority opinion and was joined by Justice Victoria Chaney. Lui expressed this view:
“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.”
Presiding Justice Frances Rothschild dissented, saying:
“I would hold that a news organization’s employment decisions concerning a person who, like Wilson, has an undisputedly central role regarding 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.”
Kruger’s opinion came in Wilson v. Cable News Network, Inc., 2019 S.O.S. 3475.
Copyright 2019, Metropolitan News Company