Free Speech Not a Free Pass for Job Discrimination, California Supreme Court Rules

The California Supreme Court ruled that a national news network employer’s termination of an employee could amount to protected activity under anti-SLAPP laws, even if ultimately those activity are deemed unlawful. At the very least, it’s going to mean careful evaluation of employment lawsuits against news organizations in California. discrimination lawyer Los Angeles

Plaintiff, who is black, alleged that as an employee, he suffered racial discrimination, retaliation and wrongful termination. The network argued the claim violates anti-SLAPP laws intended to shield businesses from frivolous lawsuits intended to chill speech or some other protected activity of public importance.

Analysts famed the case by considering whether a media company’s free speech right to decide who produces content that’s distributed to an audience of millions supersedes the employee’s right to a discrimination-free workplace. Based on the line of questioning, our Los Angeles employment discrimination attorneys surmise the court had no intention of effectively giving media organizations carte blanche reign to discriminate against their employees simply by citing the First Amendment and anti-SLAPP laws. But while that aspect of the case was remanded back to the lower court, that’s still no guarantee the worker will, especially given allegations of plagiarism, which for that industry, is often considered a fire-able offense.

Attorneys for the major network argued that editorial decisions included things like who to hire and which assignments should be given to whom. All of this, they said, is connected to furthering the mission of public speech, and thus the decision to fire the plaintiff producer should protected under anti-SLAPP laws.

Employment discrimination lawyers in Los Angeles and throughout the state had been watching closely how the case unfolded.

Anti-SLAPP Laws Defined

SLAPP is an acronym that stands for “Strategic Lawsuits Against Public Participation.”

The intended purpose of anti-SLAPP laws – which exist in 29 states, to broadly varying degrees – is to allow for early dismissal (and sometimes reimbursement of legal fees) of baseless lawsuits filed with intent silence and intimidate businesses through costly legal proceedings. Lawmakers wanted to prevent people from using the courts – or the threat of litigation – to discourage engagement in First Amendment rights.

News organizations and individual journalists can avail themselves of anti-SLAPP laws to shield against unfounded defamation and other claims, typically filed by the subject of an enterprise or investigative story to deflect, discourage or discredit a news outlet.

Under the California anti-SLAPP statute, Code Civ. Proc. Section 425.16, defendants file a motion to strike the entire case because it involves First Amendment-protected free speech that is of significant public concern. The burden of proof is on the plaintiff to show a probability they’ll prevail in the underlying claim. If they can’t, the claim is dismissed and defendants often can collect attorney’s fees.

The Intersection of California Employment Law, Free Speech and Anti-SLAPP Law

At the recent hearing, several state justices questioned where the line would be drawn where free speech, anti-discrimination law protection (under the Fair Employment and Housing Act) and the anti-SLAPP law intersect.

The main concern expressed by justices was whether denying the anti-SLAPP motion would chill First Amendment freedoms OR if granting it would mean all future media organization employees would be effectively barred from legal remedy for employment discrimination due to their employer’s business model.

Anti-SLAPP statutes have been raising tricky questions like this in California since they were passed in 1992 – on matters ranging from wrongful termination to wrongful death.

The divided court ultimately remanding the case back to a lower court for further consideration (denying CNN’s motion to dismiss), the stronger defenseĀ  here probably involves the assertion that termination was based on credible accusations of plagiarism. As the court noted, this is a serious violation of journalistic integrity, considered by a majority of news organizations to be grounds for termination.

Media Producer Alleges Disability and Race Discrimination and Wrongful Termination

Plaintiff in this case, Wilson v. CNN Inc.,, has an Emmy Award under his belt, being a writer, producer and long-time employee of the network who alleges he was retaliated against and ultimately fired for complaining about disability discrimination and race discrimination at work. The organization, he says, is using the First Amendment as a pretext.

A trial court had granted the company’s motion to dismiss on anti-SLAPP grounds, but the appellate court revived it, finding the protection didn’t apply in this case. The employee was a long-time worker, he was one of many in a large organization and wasn’t an on-air personality. The company’s free speech was not hampered or halted by this employee’s lawsuit, and discrimination and retaliation don’t ever qualify as protected activity.

The state court disagreed, saying it’s possible such actions could be deemed protected activity where free speech is concerned. Termination for plagiarism, the court held, would be considered protected activity, so at minimum, it requires further evaluation.

Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.

Additional Resources:

Wilson v. CNN Inc.,, July 22, 2019, California Supreme Court