On December 11, 2013, the Court of Appeal of the Sate of California issued its decision in the gender and age discrimination case Hunter v. CBS Broadcasting, Inc. The Court remanded for the case for the trial court to consider whether Plaintiff has demonstrated a reasonable probability of prevailing on the merits of his claims.
In this case, Plaintiff filed a discrimination complaint alleging that Defendant CBS Broadcasting refused to hire him as a weather news anchor because of his gender and age. Defendant filed a motion to strike the complaint arguing that its selection of a newscaster qualified as an act in furtherance of its free speech rights. Defendant explained that Plaintiff’s lawsuit interfered with the station’s First Amendment rights because its “decision[s] as to who to select to represent itself in an on air broadcast . . . is an act in furtherance of free speech.” However, Plaintiff argued that the act underlying his claim had nothing to do with free speech, but instead was a “hiring policy” that “impose[d] a ban on the hiring of males from the most select positions.” The trial court denied the Defendant’s motion, concluding that Plaintiff’s claims did not arise from Defendant’s hiring decision, but rather from its discriminatory employment practices.
Defendant based its argument on the Strategic Lawsuits Against Public Participation (“SLAPP”) statute, which allows media defendants to obtain “the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech.” Under the two-step process applicable to anti-SLAPP motions, a defendant must show that the challenged activity (hiring of anchors) is “an act in furtherance of . . . free speech … in connection with a public issue.” If the defendant makes this showing, the plaintiff can defeat the motion by establishing a reasonable probability of prevailing on the merits (meaning that Plaintiff would prevail on his discrimination claim).
The Court of Appeals sided with Defendant, stating that the selection of a news anchor qualifies as conduct in furtherance of the exercise of free speech rights because it was already recognized before that “[r]eporting the news” and “creat[ing] . . a television show” both qualify as “exercise[s] of free speech.” The conduct therefore qualifies as a form of protected activity. The Court also stated that weather reporting is a matter of public interest and Defendant’s decisions regarding who would present those reports to the public during its broadcasts was necessarily “in connection” with that public issue.
Therefore, the matter was remanded to trial court, which “must decide whether Hunter demonstrated a reasonable probability of prevailing on the merits of his discrimination claim.”
This decision of the Court of Appeals tends to show that the right to free speech applies at the early stage of employees hiring and is not solely meant to protect what employees would say in the air.
If you are an employee and you believe your free speech rights have been violated or if you have been discriminated against, please contact the Harman Firm, P.C.