Wilson v. Cable News Network, Inc. , 249 Cal. Rptr. 3d 569 ( 2019 )

IN THE SUPREME COURT OF
CALIFORNIA
STANLEY WILSON,
Plaintiff and Appellant,
v.
CABLE NEWS NETWORK, INC., et al.,
Defendants and Respondents.
S239686
Second Appellate District, Division One
B264944
Los Angeles County Superior Court
BC559720
_________________________________________________________
July 22, 2019
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Groban concurred.
_________________________________________________________
WILSON v. CABLE NEWS NETWORK, INC.
S239686
Opinion of the Court by Kruger, J.
Code of Civil Procedure section 425.16 (section 425.16),
commonly known as the anti-SLAPP statute, allows defendants
to request early judicial screening of legal claims targeting free
speech or petitioning activities. We consider two questions
concerning the application of the anti-SLAPP statute to certain
claims arising in the employment context.
The primary question before us concerns the statute’s
application to employment discrimination and retaliation
claims. Here, a journalist alleges that his employer denied him
promotions, gave him unfavorable assignments, and ultimately
fired him for unlawful discriminatory and retaliatory reasons.
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. The
defendant employer in this case has shown plaintiff’s claims
arise in limited part—though not in whole—from protected
activity. The employer is therefore entitled to a determination
WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
of whether those limited portions of plaintiff’s claims have
sufficient potential merit to proceed.
The second question concerns the application of the anti-
SLAPP statute to the journalist’s claim that defendant defamed
him by privately discussing the alleged reasons for his
termination with potential employers and others. We conclude
that this claim need not be screened for merit because these
privately communicated remarks were not made in connection
with any issue of public significance, as the statute requires.
(See § 425.16, subds. (a), (b)(1), (e)(4).) We thus affirm in part,
reverse in part, and remand for further proceedings.
I.
Plaintiff Stanley Wilson began working for Cable News
Network, Inc., in 1996, and wrote and produced stories for the
network for more than 17 years. During his tenure, Wilson
covered matters of general public importance, including
multiple presidential elections, the Bush v. Gore controversy,
the September 11, 2001 attacks, and Hurricane Katrina. For
his work, Wilson attained recognition in the field, receiving
three Emmy awards and many other journalism honors.
In 2004, Wilson, who is African American and Latino,
began raising concerns about the network’s treatment of
African-American men. He also took a five-week paternity leave
after the birth of his twin children in 2013. According to Wilson,
the network rewarded him with menial assignments and denied
him promotions in favor of younger and less experienced White
candidates.
Wilson’s tenure came to an end in 2014, after Wilson
drafted a story covering the unexpected retirement of Los
Angeles County Sheriff Lee Baca. An editor reviewing the draft
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Opinion of the Court by Kruger, J.
flagged several passages that appeared similar to another news
organization’s published story. Citing concerns about
plagiarism, the network placed Wilson on leave of absence and
ultimately fired him.
Wilson filed suit against Cable News Network, Inc.,
various affiliated corporate entities, and his supervisor. (For
simplicity’s sake, we will refer to defendants collectively as
CNN.) Wilson’s complaint contains seven causes of action, six
of which challenge CNN’s alleged discrimination and
retaliation. Specifically, Wilson alleges he was denied
promotions, given unfavorable assignments, and ultimately
fired because of his race and other protected characteristics,1 as
well as in retaliation for exercising his right to make complaints
about discrimination and his right to take parental leave. (See
Gov. Code, §§ 12940, 12945.2.) He further alleges wrongful
termination in violation of the public policy against employment
discrimination and retaliation. (See Gantt v. Sentry Insurance
(1992) 1 Cal.4th 1083, 1089–1097.) In his seventh and final
cause of action, Wilson alleges that CNN defamed him by telling
prospective employers and others that Wilson had committed
plagiarism in violation of CNN’s standards and practices.
CNN filed an anti-SLAPP motion. (§ 425.16.)2 It argued
that the first six causes of action arose, in whole or in part, from
1
Wilson was 51 when he was fired. His wife had a medical
condition. On these facts, Wilson alleges CNN discriminated
against him because of his age and association with a disabled
person. (See Gov. Code, §§ 12926, subd. (m), 12940, subd. (a).)
2
An anti-SLAPP motion seeks to strike a “[s]trategic
lawsuit against public participation,” that is, a “SLAPP.” (See
Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1109 & fn. 1.)
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Opinion of the Court by Kruger, J.
Wilson’s termination, and CNN’s decision to fire Wilson was in
furtherance of its right to determine who should speak on its
behalf on matters of public interest. CNN further argued that
the defamation cause of action arose from protected speech
because its statements as to whether Wilson met CNN’s
editorial standards in reporting on a matter of public interest
furthered CNN’s exercise of free speech rights. The trial court
agreed with these arguments, concluded that Wilson had not
shown any of his claims had minimal merit, and granted the
motion.
A divided Court of Appeal reversed. (Wilson v. Cable News
Network, Inc. (2016) 6 Cal.App.5th 822, review granted Mar. 1,
2017, S239686 (Wilson); see id. at p. 840 (dis. opn. of Rothschild,
P. J.).) The majority held the trial court erred in granting the
motion to strike Wilson’s employment discrimination and
retaliation claims because the claims arose from “defendants’
allegedly discriminatory and retaliatory conduct against him,
not the particular manifestations of the discrimination and
retaliation, such as denying promotions, assigning him menial
tasks, and firing him.” (Id. at p. 836.) Reasoning that
discrimination and retaliation do not qualify as protected
activity, even when committed by a news organization, the
majority concluded the anti-SLAPP statute did not apply. (Id.
at pp. 834–837.) The dissent disagreed, urging that the claims
arose from CNN’s decision about who would report the news on
its behalf, a decision in furtherance of CNN’s exercise of free
speech rights. (Id. at pp. 840–842 (dis. opn. of Rothschild,
P. J.).) The majority and dissent likewise disagreed over the
treatment of Wilson’s defamation claim: The majority thought
the trial court was wrong to strike the claim, while the dissent
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Opinion of the Court by Kruger, J.
took the opposite view. (See id. at pp. 837–840; id. at pp. 845–
846 (dis. opn. of Rothschild, P. J.).)
The Court of Appeal’s decision in this case added to a
growing divide over whether, in an employment discrimination
or retaliation case, the employer’s alleged motive to discriminate
or retaliate eliminates any anti-SLAPP protection that might
otherwise attach to the employer’s employment practices.3 We
took review to answer that question and to address the
application of the anti-SLAPP statute to Wilson’s related
defamation claim.
3
Compare Bonni v. St. Joseph Health System (2017) 13
Cal.App.5th 851, 861, 863–864 (basis for a retaliation claim is
the defendant’s unprotected retaliatory motive for an adverse
action, not the adverse action itself), review granted November
1, 2017, S244148; Nam v. Regents of University of California
(2016) 1 Cal.App.5th 1176, 1187–1193 (basis includes the
defendant’s retaliatory motive) with Symmonds v. Mahoney
(2019) 31 Cal.App.5th 1096, 1108 (alleged “discriminatory
motive” does not “negate[] protections that otherwise would
apply to the defendant’s conduct” under the anti-SLAPP
statute), review granted April 24, 2019, S254646; Daniel v.
Wayans (2017) 8 Cal.App.5th 367, 380 (courts should focus on
allegations of conduct, not motive, because “ ‘ “[c]auses of action
do not arise from motives; they arise from acts” ’ ”), review
granted May 10, 2017, S240704; Hunter v. CBS Broadcasting,
Inc. (2013) 221 Cal.App.4th 1510, 1520 (same); Tuszynska v.
Cunningham (2011) 199 Cal.App.4th 257, 268–269 (same); see
also San Diegans for Open Government v. San Diego State
University Research Foundation (2017) 13 Cal.App.5th 76, 104
(in a self-dealing case, concluding the underlying conduct, not
the alleged motive, is the basis), review granted August 16,
2017, S242529.
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II.
Enacted by the Legislature in 1992, the anti-SLAPP
statute is designed to protect defendants from meritless
lawsuits that might chill the exercise of their rights to speak and
petition on matters of public concern. (See § 425.16, subd. (a);
Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619;
Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180,
192.) To that end, the statute authorizes a special motion to
strike claims “arising from any act of that person in furtherance
of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection
with a public issue.” (§ 425.16, subd. (b)(1).)
A court evaluates an anti-SLAPP motion in two steps.
“Initially, the moving defendant bears the burden of
establishing that the challenged allegations or claims ‘aris[e]
from’ protected activity in which the defendant has engaged.
[Citations.] If the defendant carries its burden, the plaintiff
must then demonstrate its claims have at least ‘minimal
merit.’ ” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).) If the plaintiff
fails to meet that burden, the court will strike the claim. Subject
to certain exceptions not relevant here, a defendant that
prevails on a special motion to strike is entitled to attorney fees
and costs. (§ 425.16, subd. (c).)
Because the Court of Appeal determined CNN had failed
to carry its initial burden, we are here concerned only with the
first step of the analysis. The defendant’s first-step burden is to
identify the activity each challenged claim rests on and
demonstrate that that activity is protected by the anti-SLAPP
statute. A “claim may be struck only if the speech or petitioning
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Opinion of the Court by Kruger, J.
activity itself is the wrong complained of, and not just evidence
of liability or a step leading to some different act for which
liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) To
determine whether a claim arises from protected activity, courts
must “consider the elements of the challenged claim and what
actions by the defendant supply those elements and
consequently form the basis for liability.” (Id. at p. 1063.)
Courts then must evaluate whether the defendant has shown
any of these actions fall within one or more of the four categories
of “ ‘act[s]’ ” protected by the anti-SLAPP statute. (§ 425.16,
subd. (e); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 66.)
CNN relies on section 425.16, subdivision (e)(4), which
protects “any other 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.”4 Whether Wilson’s claims arise from activity
protected by this provision is a matter we consider de novo.
(Park, supra, 2 Cal.5th at p. 1067), evaluating the context and
content of the asserted activity (FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 144–145, 149).
III.
Wilson’s intentional discrimination and retaliation claims
are the centerpiece of his complaint. To prove unlawful
discrimination, Wilson must show he was a member of a
4
The other parts of subdivision (e) shield statements and
writings made in connection with official proceedings or in
public on matters of public interest. (See § 425.16, subd. (e)(1)–
(3).)
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protected class; was performing competently in the position he
held, and suffered an adverse employment action such as
termination or demotion; and that other circumstances suggest
a discriminatory motive. (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 355.)5 To prove unlawful retaliation, Wilson
must likewise show CNN subjected him to adverse employment
actions for impermissible reasons—namely, because he
exercised rights guaranteed him by law. (See Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [retaliation
under the Fair Employment and Housing Act]; Rogers v. County
of Los Angeles (2011) 198 Cal.App.4th 480, 491 [retaliation for
taking family leave].) Finally, Wilson’s wrongful termination
claim turns on proof that Wilson was terminated and the reason
for the firing violates public policy. (Gantt v. Sentry Insurance,
supra, 1 Cal.4th at pp. 1089–1090.)6 In sum, all of Wilson’s
5
These are the elements of a disparate-treatment claim of
discrimination—that is, a claim of “intentional discrimination
against one or more persons on prohibited grounds.” (Guz v.
Bechtel National, Inc., supra, 24 Cal.4th at p. 354, fn. 20.) A
plaintiff may also raise other theories of discrimination or
harassment, each of which has different elements. (See ibid.
[recognizing disparate-impact theory of discrimination, that is,
the theory “that regardless of motive, a facially neutral
employer practice or policy, bearing no manifest relationship to
job requirements, in fact had a disproportionate adverse effect
on members of the protected class”]; Hughes v. Pair (2009) 46
Cal.4th 1035, 1043 [quid pro quo harassment]; Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 279
[hostile work environment harassment].) Wilson does not rely
on any of those theories here.
6
The same is true of the sixth claim for declaratory relief,
which is derivative of the other five. The complaint alleges an
actual controversy as to whether CNN’s decision to terminate
Wilson was motivated by discrimination.
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Opinion of the Court by Kruger, J.
employment-related claims depend on two kinds of allegations:
(1) that CNN subjected Wilson to an adverse employment action
or actions, and (2) that it took these adverse actions for
discriminatory or retaliatory reasons. The critical threshold
question before us is whether such claims can ever be said to be
based on an “act . . . in furtherance” of speech and petitioning
rights under section 425.16, subdivisions (b)(1) and (e)(4). The
Court of Appeal answered no. We disagree.
A.
Whether it is unlawful for a person to perform a particular
action or engage in a particular activity often depends on
whether the person has a good reason for doing it—or, at least,
has no bad reason for doing it. For example, it is ordinarily
perfectly lawful for a person to possess a screwdriver, but to
possess one for the purpose of burglarizing a house is a criminal
offense. (See Pen. Code, § 466.) It is likewise lawful to file a
lawsuit—even a meritless one—but to do so for the sake of
impoverishing an enemy constitutes the tort of malicious
prosecution. (See Bertero v. National General Corp. (1974) 13
Cal.3d 43, 49–51.) The laws proscribing intentional
discrimination and retaliation in employment and other areas
belong to this category of prohibitions. It is ordinarily perfectly
permissible for an employer to decide not to hire, not to promote,
or to fire an employee. The employer may not, however, act
based on “the race, religious creed, color, national origin,” or
other protected characteristic of the employee (Gov. Code,
§ 12940, subd. (a)), or because the employee has exercised
certain rights guaranteed by law, including the right to
complain about discrimination (e.g., id., subd. (h)).
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This feature of the antidiscrimination and antiretaliation
laws has led some appellate courts, including the Court of
Appeal in this case, to conclude that discrimination and
retaliation claims fall outside the scope of the anti-SLAPP
statute. The appellate court here reasoned that because the
adverse employment actions Wilson alleged would have been
perfectly lawful in the absence of CNN’s discriminatory or
retaliatory motive, Wilson’s claims must be based on CNN’s
unprotected discrimination or retaliation—and not “the
particular manifestations of the discrimination and retaliation,
such as denying promotions, assigning him menial tasks, and
firing him.” (Wilson, supra, 6 Cal.App.5th at p. 836, rev.
granted.) On this view, it does not matter that one of these
“particular manifestations” might otherwise qualify as
protected speech or petitioning activity. If the plaintiff alleges
the defendant acted for discriminatory or retaliatory reasons,
the plaintiff’s allegation of illicit motive will defeat any
argument for anti-SLAPP protection.
This view cannot be squared with either the statutory text
or our precedent interpreting it. It is true that a cause of action
for intentional discrimination would be incomplete without
allegations of a discriminatory motive. But a cause of action for
discrimination would likewise be incomplete without allegations
of concrete adverse action. (See Guz v. Bechtel National, Inc.,
supra, 24 Cal.4th at p. 355.) For pleading purposes, both are
necessary elements; neither is privileged over the other. It
follows that even if a plaintiff’s discrimination claim can be said
to be based in part on the employer’s purported wrongful
motives, it is necessarily also based on the employer’s alleged
acts—that is, the various outward “manifestations” of the
employer’s alleged wrongful intent, such as failing to promote,
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Opinion of the Court by Kruger, J.
giving unfavorable assignments, or firing. (Wilson, supra, 6
Cal.App.5th at p. 836, rev. granted; see Black’s Law Dict. (6th
ed. 1990) p. 25, col. 2 [defining “act” as the “external
manifestation of [an] actor’s will” and, more generally, as “an
effect produced in the external world by an exercise of the power
of a person objectively, prompted by intention”].) Under the first
step of the anti-SLAPP analysis, that is the end of the story, for
it is the defendant’s acts that matter. (See § 425.16, subd. (b)(1)
[protecting “any act of that person” in furtherance of particular
rights]; Park, supra, 2 Cal.5th at p. 1063 [at the first step of the
anti-SLAPP inquiry, courts must “consider the elements of the
challenged claim and what actions by the defendant supply
those elements and consequently form the basis for liability,”
italics added].) If the acts alleged in support of the plaintiff’s
claim are of the sort protected by the anti-SLAPP statute, then
anti-SLAPP protections apply.
Resisting this conclusion, Wilson contends that “the basis
of CNN’s alleged liability is not staffing or hiring for a news
position, but discriminatory treatment and actions.” But the
discriminatory treatment and actions Wilson alleges in support
of his claims are actions related to the staffing of CNN’s
newsroom. The argument thus boils down to an assertion that,
for purposes of the first step of the anti-SLAPP analysis, a court
must accept Wilson’s allegation that the challenged personnel
actions were taken for discriminatory reasons and are therefore
unlawful. (See Wilson, supra, 6 Cal.App.5th at p. 836, rev.
granted.) This is not how the anti-SLAPP statute works. In
deciding an anti-SLAPP motion, a court must at the second step
“ ‘accept as true the evidence favorable to the plaintiff.’ ”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3, italics added.) But we have never insisted that the
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Opinion of the Court by Kruger, J.
complaint’s allegations be given similar credence in the face of
contrary evidence at the first step. Such conclusive deference
would be difficult to reconcile with the statutory admonition
that courts must look beyond the pleadings to consider any party
evidentiary submissions as well. (§ 425.16, subd. (b)(2).)
Nor does the anti-SLAPP statute require a defendant to
disprove allegations of illicit motive. At the first step of the
analysis, the defendant must make two related showings.
Comparing its statements and conduct against the statute, it
must demonstrate activity qualifying for protection. (See
§ 425.16, subd. (e).) And comparing that protected activity
against the complaint, it must also demonstrate that the activity
supplies one or more elements of a plaintiff’s claims. (Id., subd.
(b)(1); see Rand Resources, LLC v. City of Carson, supra, 6
Cal.5th at p. 620 [“A defendant satisfies the first step of the
analysis by demonstrating that the ‘conduct by which plaintiff
claims to have been injured falls within one of the four
categories described in subdivision (e) [of section 425.16]’
[citation], and that the plaintiff’s claims in fact arise from that
conduct [citation].”].) At this stage, the question is only whether
a defendant has made out a prima facie case that activity
underlying a plaintiff’s claims is statutorily protected (City of
Montebello v. Vasquez (2016) 1 Cal.5th 409, 420; Simpson
Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21), not
whether it has shown its acts are ultimately lawful.
We so held in Navellier v. Sletten (2002) 29 Cal.4th 82.
There, the plaintiffs urged that the defendant’s petitioning
activity should receive no protection because it was not a valid
exercise of speech and petitioning rights, the defendant having
previously waived the right to engage in the activity. We
disagreed. We acknowledged that the preamble to the statute
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does reflect a purpose to protect the “valid exercise” of speech
and petition rights. (§ 425.16, subd. (a).) But the Legislature’s
expression of “a concern in the statute’s preamble with lawsuits
that chill the valid exercise of First Amendment rights does not
mean that a court may read a separate proof-of-validity
requirement into the operative sections of the statute.
[Citations.] Rather, any ‘claimed illegitimacy of the defendant’s
acts is an issue which the plaintiff must raise and support in the
context of the discharge of the plaintiff’s [secondary] burden to
provide a prima facie showing of the merits of the plaintiff’s
case.’ ” (Navellier, at p. 94; see City of Montebello v. Vasquez,
supra, 1 Cal.5th at pp. 422–425 [lawfulness of activity generally
addressed in the second step].) To conclude otherwise would
effectively shift to the defendant a burden statutorily assigned
to the plaintiff. (See § 425.16, subd. (b)(1) [if acts are protected,
it is for the “plaintiff [to] establish[] that there is a probability
that the plaintiff will prevail on the claim”].)
Consistent with this understanding, at the first step of the
anti-SLAPP analysis, we routinely have examined the conduct
of defendants without relying on whatever improper motive the
plaintiff alleged. For example, in Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, we considered whether claims
for malicious prosecution could be subject to an anti-SLAPP
motion. The plaintiff urged that filing an action without
probable cause was not activity in furtherance of constitutional
speech and petition rights, and so such claims should be exempt.
We rejected the argument. That the claim arose from the filing
of a lawsuit, protected First Amendment activity, was alone
dispositive; allegations that the suit was filed without probable
cause—or, for that matter, based on a malicious motive—were
irrelevant at the first step, and mattered only at the second step.
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(Id. at pp. 739–740; see Soukup v. Law Offices of Herbert Hafif,
supra, 39 Cal.4th at pp. 291–292.)
The same was true in Park. There, when considering
“what actions by the defendant supply [the] elements” of a claim
(Park, supra, 2 Cal.5th at p. 1063), we determined a
discrimination suit arose from the decision to deny the plaintiff
tenure and examined whether that decision was protected,
without reference to the alleged discriminatory motive (id. at
pp. 1071–1072). And in Rand Resources, LLC v. City of Carson,
supra, 6 Cal.5th 610, we considered whether claims for
intentional interference with contract and prospective economic
advantage arose from protected activity. The claims rested in
part on the defendants’ lobbying the city council and lobbying on
behalf of the city. These acts were lawful, considered on their
own, but alleged to be wrongful because taken with the intent to
disrupt existing and potential contractual relations. We
examined whether the acts themselves were protected, without
ever suggesting that the plaintiffs’ allegations of wrongful
motive were sufficient to remove the lobbying activity from the
statute’s aegis. (See id. at pp. 628–630.)7
7
Many courts of appeal, too, have correctly recognized that
the text of the anti-SLAPP statute and our precedent require a
court at the first step to examine the defendant’s actions without
regard to the plaintiff’s allegations about the defendant’s
motives. (Symmonds v. Mahoney, supra, 31 Cal.App.5th at
pp. 1106–1108, rev. granted; San Diegans for Open Government
v. San Diego State University Research Foundation, supra, 13
Cal.App.5th at p. 104, rev. granted; Daniel v. Wayans, supra, 8
Cal.App.5th at p. 380, rev. granted; Collier v. Harris (2015) 240
Cal.App.4th 41, 53–54; DeCambre v. Rady Children’s Hospital-
San Diego (2015) 235 Cal.App.4th 1, 22, disapproved on another
ground in Park, supra, 2 Cal.5th at p. 1070; Hunter v. CBS
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To be clear, we do not hold that a defendant’s motives are
categorically off-limits in determining whether an act qualifies
as protected activity under the anti-SLAPP statute. We hold
only that the plaintiff’s allegations cannot be dispositive of the
question. In some cases (including this one, as we explain
below), whether the defendant’s act qualifies as one in
furtherance of protected speech or petitioning will depend on
whether the defendant took the action for speech-related
reasons. Nothing in the statutory scheme prevents the
defendant from introducing evidence establishing such reasons.
But there is an important difference between permitting the
defendant to present evidence of its own motives in an effort to
make out its prima facie case of protected activity and treating
a plaintiff’s allegations of illicit motive as a bar to anti-SLAPP
protection, as Wilson would have us do here.
To conclude otherwise would effectively immunize claims
of discrimination or retaliation from anti-SLAPP scrutiny, even
though the statutory text establishes no such immunity. As
originally drafted, “[n]othing in the statute itself categorically
exclude[d] any particular type of action from its operation.”
(Navellier v. Sletten, supra, 29 Cal.4th at p. 92.) And although
subsequent amendments to the statutory scheme have added
exclusions (see Code Civ. Proc., § 425.17; Simpson Strong-Tie
Broadcasting Inc., supra, 221 Cal.App.4th at p. 1520; People ex
rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809,
823; Nesson v. Northern Inyo County Local Hospital Dist. (2012)
204 Cal.App.4th 65, 83, disapproved on another ground in Park,
supra, 2 Cal.5th at p. 1070; Tuszynska v. Cunningham, supra,
199 Cal.App.4th at pp. 268–269; Wallace v. McCubbin (2011)
196 Cal.App.4th 1169, 1186; Gallanis-Politis v. Medina (2007)
152 Cal.App.4th 600, 612–613, fn. 8.)
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Opinion of the Court by Kruger, J.
Co., Inc. v. Gore, supra, 49 Cal.4th at pp. 21–22), there are none
for discrimination or retaliation actions. Nor can we infer that
failure to include such an exception was a legislative oversight.
After all, a meritless discrimination claim, like other meritless
claims, is capable of “chill[ing] the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances.” (§ 425.16, subd. (a); see Ingels v.
Westwood One Broadcasting Services, Inc. (2005) 129
Cal.App.4th 1050, 1064 [upholding strike of caller’s age
discrimination claim against call-in radio talk show].)
Wilson, echoing the Court of Appeal, expresses concern
that if the plaintiff’s allegations of discriminatory motives are
not considered at the first step of the anti-SLAPP analysis,
“ ‘most, if not all, harassment, discrimination, and retaliation
cases [will be subject] to motions to strike.’ ” (Wilson, supra, 6
Cal.App.5th at p. 835, rev. granted, quoting Nam v. Regents of
University of California, supra, 1 Cal.App.5th at p. 1189.) This
result would impose substantial burdens on discrimination and
retaliation plaintiffs, who would be compelled to establish the
potential merit of their claims at an early stage of the litigation,
generally “without the benefit of discovery and with the threat
of attorney fees looming.” (Nam, at p. 1189; accord, Bonni v. St.
Joseph Health System, supra, 13 Cal.App.5th at p. 864, rev.
granted; see Wilson, at p. 835.)
The concern is overstated. We see no realistic possibility
that anti-SLAPP motions will become a routine feature of the
litigation of discrimination or retaliation claims. The anti-
SLAPP statute does not apply simply because an employer
protests that its personnel decisions followed, or were
communicated through, speech or petitioning activity. A claim
may be struck under the anti-SLAPP statute “only if the speech
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
or petitioning activity itself is the wrong complained of, and not
just evidence of liability or a step leading to some different act
for which liability is asserted.” (Park, supra, 2 Cal.5th at
p. 1060.) Put differently, to carry its burden at the first step,
the defendant in a discrimination suit must show that the
complained-of adverse action, in and of itself, is an act in
furtherance of its speech or petitioning rights. Cases that fit
that description are the exception, not the rule.
A brief survey of the case law illustrates the point. For
example, in Martin v. Inland Empire Utilities Agency (2011) 198
Cal.App.4th 611, 624–625, the court denied a government
agency’s motion to strike an employee’s discrimination claim
because the claim arose from various actions that had
culminated in the employee’s constructive discharge, even
though the complaint also mentioned statements critical of the
plaintiff’s performance. In McConnell v. Innovative Artists
Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169, 176–
177, the plaintiffs sued over the modification of their job duties
and subsequent termination in retaliation for their filing
lawsuits; that these allegedly retaliatory acts were conveyed in
writing did not render them protected. And in Department of
Fair Employment & Housing v. 1105 Alta Loma Road
Apartments, LLC (2007) 154 Cal.App.4th 1273, 1284–1285, the
plaintiff’s disability discrimination claims arose from a
landlord’s failure to accommodate a disability by giving
sufficient time to seek alternative housing, not the unlawful
detainer action the landlord filed.
In the relatively unusual case in which the discrimination
or retaliation defendant does meet its first-step burden of
showing that its challenged actions qualify as protected activity,
the burden shifts to the plaintiff. But the plaintiff’s second-step
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
burden is a limited one. The plaintiff need not prove her case to
the court (Briggs v. Eden Council for Hope & Opportunity,
supra, 19 Cal.4th at p. 1123); the bar sits lower, at a
demonstration of “minimal merit” (Navellier v. Sletten, supra,29 Cal.4th at p. 89). At this stage, “ ‘[t]he court does not weigh
evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. It accepts the plaintiff’s evidence
as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law.’ ”
(Sweetwater Union High School Dist. v. Gilbane Building Co.
(2019) 6 Cal.5th 931, 940, quoting Baral v. Schnitt (2016) 1
Cal.5th 376, 384–385; see Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 821.)
True, in the absence of discovery, even this reduced
barrier could pose particular difficulties for discrimination and
retaliation plaintiffs, whose claims depend on assertions of
motive that are peculiarly within the defendant’s knowledge.
But “[c]ourts deciding anti-SLAPP motions . . . are empowered
to mitigate their impact by ordering, where appropriate, ‘that
specified discovery be conducted notwithstanding’ the motion’s
pendency.” (Equilon Enterprises v. Consumer Cause, Inc.,
supra, 29 Cal.4th at p. 66, quoting § 425.16, subd. (g).) A court
exercising its discretion to grant or deny a motion under section
425.16, subdivision (g) should remain mindful that the anti-
SLAPP statute was adopted to end meritless suits targeting
protected speech, “not to abort potentially meritorious claims
due to a lack of discovery.” (Sweetwater Union High School Dist.
v. Gilbane Building Co., supra, 6 Cal.5th at p. 949.) Where a
defendant relies on motive evidence in support of an anti-SLAPP
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
motion, a plaintiff’s request for discovery concerning the
asserted motive may often present paradigmatic “good cause.”
(§ 425.16, subd. (g).)
With careful attention to the limited nature of a plaintiff’s
second step showing, and to granting discovery in appropriate
cases, courts can mitigate the burden of anti-SLAPP
enforcement on discrimination and retaliation plaintiffs, even if
they cannot eliminate it altogether. If the Legislature believes
the residual burden is unnecessary or excessive, it certainly can
adjust the statutory scheme, as it has before. We cannot,
however, rewrite the statute to create an exception the
Legislature has not enacted.
In sum, we conclude that for anti-SLAPP purposes
discrimination and retaliation claims arise from the adverse
actions allegedly taken, notwithstanding the plaintiff’s
allegation that the actions were taken for an improper purpose.
If conduct that supplies a necessary element of a claim is
protected, the defendant’s burden at the first step of the anti-
SLAPP analysis has been carried, regardless of any alleged
motivations that supply other elements of the claim. We
disapprove Bonni v. St. Joseph Health System, supra, 13
Cal.App.5th 851, review granted, and Nam v. Regents of
University of California, supra, 1 Cal.App.5th 1176, to the
extent they are inconsistent with this conclusion.
B.
With these principles in mind, we return to the allegations
in Wilson’s complaint. Wilson alleges a range of adverse
employment actions, but the most prominent is CNN’s decision
in January 2014 to terminate him. Expressly or implicitly,
Wilson’s firing supplies an element of the first six claims in the
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
complaint. These claims thus all arise—at least in part—from
this adverse action. (See Park, supra, 2 Cal.5th 1057.) We
therefore begin by considering whether firing Wilson qualifies
as an act in furtherance of CNN’s right to free speech. (§ 425.16,
subd. (b)(1).)
CNN is a cable and Internet news organization. Its
publication of news concerning matters of public interest is an
exercise of free speech rights secured by the state and federal
Constitutions.8 CNN does not contend the termination of
Wilson’s employment is itself speech. But to insulate the
exercise of free speech rights against chilling litigation, the
Legislature has defined protected activity to include not only the
act of speaking, but “any other conduct in furtherance of the
exercise of” constitutional speech rights on matters of public
interest. (§ 425.16, subd. (e)(4).) CNN makes two arguments
for application of that provision here. First, it argues that its
selection of content producers is conduct in furtherance of its
exercise of speech rights. Second, it argues that its decision to
8
See Reno v. American Civil Liberties Union (1997) 521
U.S. 844, 870 (publication of Internet content entitled to 1st
Amend. protection); Turner Broadcasting System, Inc. v. FCC
(1994) 512 U.S. 622, 636 (“Cable programmers . . . engage in and
transmit speech, and they are entitled to the protection of the
speech and press provisions of the First Amendment”); Leathers
v. Medlock (1991) 499 U.S. 439, 444 (“Cable television provides
to its subscribers news, information, and entertainment. It is
engaged in ‘speech’ under the First Amendment, and is, in much
of its operation, part of the ‘press.’ ”); Park, supra, 2 Cal.5th at
page 1071 (“The reporting of news, whether in print or on air, is
constitutionally protected free speech.”); California
Constitution, article I, section 2, subdivision (a) (“Every person
may freely speak, write and publish his or her sentiments on all
subjects . . . .”).
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
enforce its journalistic standards by terminating a writer for
alleged plagiarism constitutes conduct in furtherance of
protected activity.
The anti-SLAPP statute provides no explicit guidance for
evaluating these arguments. Section 425.16, subdivision (e)(4),
does not define precisely how, or to what extent, conduct must
further the exercise of speech or petition rights to merit
protection. At a minimum, the subdivision shields expressive
conduct—the burning of flags, the wearing of armbands, and the
like—that, although not a “written or oral statement or writing”
(§ 425.16, subd. (e)(1)–(3)), may similarly communicate views
regarding “matters of public significance” (id., subd. (a)). (See,
e.g., Texas v. Johnson (1989) 491 U.S. 397, 404–406 [flag
burning]; Tinker v. Des Moines School Dist. (1969) 393 U.S. 503,
505–506 [armbands].) Indeed, the legislative history suggests
expressive conduct was foremost in the Legislature’s thinking
when subdivision (e)(4) was added.9 But the text’s reference to
9
The provision was inserted in 1997, five years after
original enactment of the anti-SLAPP statute. The committee
reports are uniform in describing the motivation for the
provision. Proponents asserted “that the constitutional right of
free speech and petition also includes constitutionally protected
expressive conduct.” (Sen. Com. on Judiciary, Analysis of Sen.
Bill No. 1296 (1997–1998 Reg. Sess.) as amended May 12, 1997,
p. 4; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Sen. Bill No. 1296 (1997–1998 Reg. Sess.) as
amended June 23, 1997, p. 4.) The Legislature agreed and
sought to codify the principle that expressive conduct, like
expressive speech, is protected activity. (See, e.g., Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 1296, supra, pp. 3–4; Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of
Sen. Bill No. 1296, supra, p. 4; Assem. Com. on Judiciary,
Analysis of Sen. Bill No. 1296 (1997–1998 Reg. Sess.) as
amended May 12, 1997, p. 4.)
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Opinion of the Court by Kruger, J.
acts “in furtherance” of speech or petitioning rights can also
reasonably be read to extend to at least certain conduct that,
though itself containing no expressive elements, facilitates
expression.
A news organization’s hiring or firing of employees—like
virtually everything a news organization does—facilitates the
organization’s speech to some degree. But it does not follow that
everything the news organization does qualifies as protected
activity under the anti-SLAPP statute. The First Amendment
does not immunize news organizations from laws of general
applicability “simply because their enforcement . . . has
incidental effects on [the press’s] ability to gather and report the
news.” (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 669.)
We likewise do not read the anti-SLAPP statute to call for
preliminary screening of every claim that might be brought
against a news organization, merely because the claim might
have incidental effects on the organization’s operation. The
question we must consider is whether, and when, a news
organization’s selection of its employees bears a sufficiently
substantial relationship to the organization’s ability to speak on
matters of public concern to qualify as conduct in furtherance of
constitutional speech rights.
1.
We begin with the first, and broader, of CNN’s two
arguments: that its decisions to hire or fire writers and other
content producers categorically qualify as conduct in
furtherance of its speech rights. The argument rests on two
basic propositions. One, the right of a news organization to
speak includes the right to exercise editorial control and
judgment—that is, the right to choose what news it will report
22
WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
and how the news will be reported. (Miami Herald Publishing
Co. v. Tornillo (1974) 418 U.S. 241, 258.) And two, an entity can
act and speak only through the individuals that comprise and
represent it. The law thus recognizes that, to exercise certain
First Amendment freedoms, such as the right of free exercise of
religion, an entity “must retain the corollary right to select its
voice.” (Petruska v. Gannon University (3d Cir. 2006) 462 F.3d
294, 306; see ibid. [ministerial exception to federal employment
discrimination law]; accord, Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC (2012) 565 U.S. 171, 185
[“it is impermissible for the government to contradict a church’s
determination of who can act as its ministers”].)
But in the area of press freedoms, it has long been
established that the First Amendment does not guarantee a
news organization absolute control over who may write, report,
or even edit on its behalf. (Associated Press v. Labor Board
(1937) 301 U.S. 103, 130–133 (Associated Press).) In Associated
Press, the National Labor Relations Board (NLRB) charged the
respondent news organization with unlawfully discharging an
editorial employee for engaging in union activity and ordered
the employee reinstated. Challenging the NLRB’s order on First
Amendment grounds, the news organization urged that
“whatever may be the case with respect to employees in its
mechanical departments it must have absolute and unrestricted
freedom to employ and to discharge those who . . . edit the
news.” (Id. at p. 131.) The Supreme Court rejected this as an
“unsound generalization” (ibid.), noting that the constitutional
guarantees of free speech and a free press afford “[t]he publisher
of a newspaper . . . no special immunity from the application of
general laws” (id. at p. 132; see Pittsburgh Press Co. v. Human
Rel. Comm’n (1973) 413 U.S. 376, 382–383; Shulman v. Group
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
W Productions, Inc. (1998) 18 Cal.4th 200, 239). Regulation of
the press’s labor practices was permissible, provided it left
untrammeled “the full freedom and liberty of the petitioner to
publish the news as it desires it published or to enforce policies
of its own choosing with respect to the editing and rewriting of
news for publication.” (Associated Press, at p. 133.)
Courts in various contexts have applied these principles to
distinguish between permissible regulation and
unconstitutional interference with a newspaper’s editorial
judgment. In Passaic Daily News v. N.L.R.B. (D.C. Cir. 1984)
736 F.2d 1543, 1549, for example, the court held that the NLRB
could order the reinstatement of a newspaper columnist
unlawfully discharged for engaging in union activity, though it
drew the line at compulsory future publication of his weekly
column. In McDermott v. Ampersand Pub., LLC (9th Cir. 2010)
593 F.3d 950, in contrast, the court invalidated an NLRB order
requiring reinstatement of news reporters and editors, but it did
so because these individuals had been discharged for “union
activity directed at pressuring the newspaper’s owner and
publisher to refrain from exercising editorial control over news
reporting”; the court explained that under the circumstances,
relief “in support of union activity aimed at obtaining editorial
control poses a threat of violating” the newspaper’s First
Amendment editorial rights. (Id. at p. 953; but see id. at
pp. 968–971 (dis. opn. of Hawkins, J.) [injunction ordering
reinstatement does not risk 1st Amend. infringement].) In
Nelson v. McClatchy Newspapers (Wn. 1997) 936 P.2d 1123, the
Washington Supreme Court held that the First Amendment
partially invalidated a statute prohibiting discrimination
against employees for political participation because, in its
judgment, the nature of the regulation directly interfered with
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
the plaintiff newspaper’s ability to maintain journalistic
integrity and credibility by restricting its employees’ political
activism. (Id. at p. 1133; but see id. at p. 1133 (dis. opn. of
Dolliver, J.) [“The First Amendment does not give a newspaper
immunity from general laws absent a showing of interference
with the newspaper’s right to determine what to print.”].)10
The considerations raised in these cases differ, but the
bottom line is this: Not every staffing decision a news
organization makes—even with respect to those who write, edit,
or otherwise produce content—enjoys constitutional protection.
As a general rule, application of laws prohibiting racial and
other forms of discrimination will leave the organization with
“the full freedom and liberty” to “publish the news as it desires
it published.” (Associated Press, supra, 301 U.S. at p. 133.) It
follows that, also as a general rule, a legal challenge to a
particular staffing decision will have no substantial effect on the
news organization’s ability to speak on public issues, which is
the anti-SLAPP statute’s concern.
Like most general rules, this one does admit of exceptions.
Indeed, Wilson himself acknowledges that in some instances a
news organization’s hiring decisions could qualify as conduct in
furtherance of the organization’s constitutionally protected
speech on matters of public interest. He agrees, for example,
10
As another example, in Hausch v. Donrey of Nevada, Inc.
(D.Nev. 1993) 833 F.Supp. 822, 832, the federal district court
rejected a newspaper’s First Amendment defense to the
employment discrimination claim of a managing editor based on
failure to promote her to the position of editor, reasoning that
the application of antidiscrimination laws did not burden the
newspaper’s “ability to control the content and character of their
newspaper’s message.”
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
that a television producer’s decision about whom to cast in a
program can constitute part of the message conveyed, thus
meriting anti-SLAPP protection. (Cf. Hunter v. CBS
Broadcasting Inc., supra, 221 Cal.App.4th at p. 1527 [holding
that choice of on-air employee to speak on behalf of news
organization furthers organization’s exercise of speech rights].)
Likewise, the decision to hire or fire an employee who is vested
with ultimate authority to determine a news organization’s
message might well have a substantial effect on the
organization’s ability to speak as it chooses on matters of public
concern. Lawsuits directed at influencing the selection of
individuals who wield that type of ultimate authority could chill
participation in the discussion of public issues, as surely as suits
targeting the act of speaking itself. But not so with other
employees in a newsroom who may contribute to, but lack
ultimate say over, their employer’s speech. (See Manson v.
Little Rock Newspapers, Inc. (E.D.Ark. 1999) 42 F.Supp.2d 856,
865 [“A reporter has no free-standing First Amendment right to
have her articles published by a privately-owned newspaper for
which she works.”].) Suits over the hiring and firing of such
employees—without more—pose no comparable threat to the
exercise of editorial discretion.
As the movant, CNN has the burden of showing Wilson’s
role bore such a relationship to its exercise of editorial control
as to warrant protection under the anti-SLAPP statute. CNN
has failed to make that showing. CNN does not contend that as
a field producer Wilson had authority to decide what CNN would
air. Instead, CNN relies solely on Wilson’s part-time role as a
writer for its website, a comparatively minor part of his duties.
But CNN does not demonstrate that Wilson, in his capacity as a
writer, had authority to determine what would appear on CNN’s
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
website. Indeed, the facts of this case demonstrate the contrary.
Wilson’s work was vetted and reviewed by others who did have
editorial power, and who decided whether his work should—or
in the case of the Baca story, should not—be published by CNN.
As far as the record shows, Wilson was one of countless
employees whose work contributes to what a large news
organization like CNN says about the issues of the day, but was
not among those who appear on-air to speak for the organization
or exercise authority behind the scenes to determine CNN’s
message. 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. It follows that a claim based on
these decisions, without more, falls outside the reach of the anti-
SLAPP statute.
2.
CNN’s second, and narrower, argument focuses on its
specific asserted reason for terminating Wilson—his alleged
plagiarism—rather than his general role as a content producer.
In support of its motion, CNN submitted numerous declarations
attesting that it became aware of possible plagiarism by Wilson,
investigated the possibility, and elected to terminate Wilson
based on its findings. CNN’s declarations also detail CNN’s
prohibition against plagiarism, its policy of sanctioning
employees who engage in plagiarism, and the editorial controls
CNN has in place to ensure plagiarism will not occur.
Wilson acknowledges his termination followed an
investigation into plagiarism, though he disputes CNN’s
conclusions and claims the plagiarism rationale was pretextual.
We need not, however, determine whether Wilson plagiarized,
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
or whether any plagiarism was a true motive for his
termination. The question is only whether CNN has made out
a prima facie case that activity underlying Wilson’s claims is
protected. (City of Montebello v. Vasquez, supra, 1 Cal.5th at
p. 420; Simpson Strong-Tie Co., Inc. v. Gore, supra, 49 Cal.4th
at p. 21.)
CNN’s plagiarism rationale for terminating Wilson evokes
a line of cases concerning the right of news organizations to
maintain and enforce standards of journalistic ethics. In
Newspaper Guild, etc. v. N.L.R.B. (D.C. Cir. 1980) 636 F.2d 550(Newspaper Guild), the D.C. Circuit held that a newspaper’s
code of ethics—unlike other terms of employment—is not the
proper subject of mandatory collective bargaining. It explained:
“[P]rotection of the editorial integrity of a newspaper lies at the
core of publishing control. In a very real sense, that
characteristic is to a newspaper or magazine what machinery is
to a manufacturer. At least with respect to most news
publications, credibility is central to their ultimate product and
to the conduct of the enterprise. . . . [¶] . . . [A] news publication
must be free to establish[,] without interference, reasonable
rules designed to prevent its employees from engaging in
activities which may directly compromise their standing as
responsible journalists and that of the publication for which
they work as a medium of integrity.” (Id. at pp. 560–561, fns.
omitted.) The Washington Supreme Court would later draw on
this reasoning to invalidate the state’s political participation
law as applied to a newspaper that had adopted rules against
employees’ political activism. (Nelson v. McClatchy
Newspapers, supra, 936 P.2d at pp. 1131–1132.) “Editorial
integrity and credibility,” it held, “are core objectives of editorial
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Opinion of the Court by Kruger, J.
control and thus merit protection under the free press clauses.”
(Id. at p. 1131.)
We need not precisely delineate the reach of the relevant
constitutional principles here. (City of Montebello v. Vasquez,
supra, 1 Cal.5th at pp. 421–422.) The only question before us is
whether, as CNN argues, its decision to terminate Wilson for
plagiarism was conduct “in furtherance of” the organization’s
speech rights within the meaning of section 425.16, subdivisions
(b)(1) and (e). We conclude it was.
Online and on air, CNN covers myriad “matters of public
significance.” (§ 425.16, subd. (a).) Its broadcasts and
publications include extensive “speech in connection with a
public issue or an issue of public interest.” (Id., § sub. (e)(4).)
CNN presented evidence tending to show that its ability to
participate meaningfully in public discourse on these subjects
depends on its integrity and credibility. 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. (Newspaper Guild, supra,
636 F.2d at p. 560; see id. at p. 561.) 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. (§ 425.16, subd. (e)(4).)
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But CNN’s invocation of journalistic ethics only takes it so
far. The lone act CNN justifies as motivated by the need to
enforce editorial standards forbidding plagiarism is its
termination of Wilson. CNN’s own evidence demonstrates that
it was unaware of any potential plagiarism until a few weeks
before Wilson was let go. CNN has thus carried its first-step
burden only insofar as Wilson’s employment-related claims
arise from his termination. To the extent Wilson’s causes of
action include claims of illegal discrimination and retaliation
based on other acts—passing him over for promotions, menial
assignments, and so on—these causes of action will survive,
even if the termination-specific claims are stricken. (See Baral
v. Schnitt, supra, 1 Cal.5th at pp. 393–394 [anti-SLAPP motions
target only those claims within a cause of action that rest on
protected activity].)
Because the Court of Appeal concluded CNN had wholly
failed to meet its first-step burden, it did not address whether
Wilson’s termination claims must be stricken, or whether they
instead have the requisite minimal merit to proceed. We
remand on these claims so the Court of Appeal may address that
issue in the first instance.
IV.
We turn next to Wilson’s defamation claim. According to
the complaint, CNN told third parties, including prospective
employers, that Wilson “had plagiarized . . . passages in the
Baca story and thereby violated CNN standards and
practices.”11 Wilson’s declaration also describes a statement by
11
Wilson’s complaint alleges the statements to those outside
the company on information and belief. No contextual details
are provided.
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Opinion of the Court by Kruger, J.
a CNN human resources manager, at a meeting with Wilson and
Wilson’s supervisor, defendant Peter Janos, that Wilson had
plagiarized. Wilson and CNN disagree over whether these
statements were “conduct in furtherance of the exercise of [free
speech rights] in connection with a public issue or an issue of
public interest.” (§ 425.16, subd. (e)(4).) We conclude they were
not.
A.
In contrast to Wilson’s employment-related claims,
Wilson’s defamation claim is based on CNN’s speech rather than
any tangible action. A casual reader of the anti-SLAPP statute
might wonder whether this makes a difference, since unlike the
other provisions of subdivision (e) of section 425.16, subdivision
(e)(4) refers to “conduct,” not “statement[s].” But courts
(including this one) have generally assumed that this reference
to “conduct” includes oral or written statements,12 and a closer
reading of the statute reveals why the assumption is correct.
The reason is straightforward: Section 425.16,
subdivision (e)(1), (2), and (3), each describe circumstances in
which a “written or oral statement or writing” is eligible for
protection as an “act” in furtherance of speech or petitioning
rights—when the statement is made before an official
proceeding, made in a public place on a public issue, and so on.
Subdivision (e)(4) extends protection to “any other conduct” that
12
See, e.g., FilmOn.com Inc. v. DoubleVerify Inc., supra, 7
Cal.5th at p. 149 (applying § 425.16, subd. (e)(4) to statements);
Rand Resources, LLC v. City of Carson, supra, 6 Cal.5th at
pp. 621–628 (same); McGarry v. University of San Diego (2007)
154 Cal.App.4th 97, 109–111 (same); Vogel v. Felice (2005) 127
Cal.App.4th 1006, 1015 (same); Wilbanks v. Wolk (2004) 121
Cal.App.4th 883, 897–898 (same).
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meets the requirements specified in that subdivision. Even
though the word “conduct” is often used, particularly in the First
Amendment context, in contradistinction to “speech,” the use of
the phrase “other conduct” (ibid., italics added) indicates the
Legislature regarded the acts of speaking or writing identified
in the preceding provisions as “conduct” too. It follows that
“conduct” in subdivision (e)(4) is intended to embrace speech, as
well as tangible action. To the extent there is any doubt, we
construe the statute broadly to achieve its purposes. (§ 425.16,
subd. (a).)
The harder question concerns precisely what kinds of
speech are covered by subdivision (e)(4). Unlike its neighboring
subdivisions—which define protected conduct “not only by its
content, but also by its location, its audience, and its timing”
(FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at
p. 143)—the “catchall” provision of subdivision (e)(4) contains
“no similar contextual references to help courts discern the type
of conduct and speech to protect” (id. at p. 144). But when a
general provision follows specific examples, as subdivision (e)(4)
follows subdivision (e)(1) through (e)(3), we generally
understand that provision as “ ‘ “restricted to those things that
are similar to those which are enumerated specifically.” ’ ”
(Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725,
743; accord, FilmOn.com Inc., at p. 144.)
The common thread that runs through subdivision (e)(1)
through (e)(3) is that each provision protects speech that
contributes to the public discussion or resolution of public
issues—a thread that also ties these provisions together with
the statute’s stated purpose of furthering “continued
participation in matters of public significance.” (§ 425.16,
subd. (a).) It follows that a defendant who claims its speech was
32
WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
protected as “conduct in furtherance of the exercise of [free
speech rights] in connection with a public issue or an issue of
public interest” (id., subd. (e)(4)) must show not only that its
speech referred to an issue of public interest, but also that its
speech contributed to public discussion or resolution of the issue
(see FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at
pp. 150–152; City of Industry v. City of Fillmore (2011) 198
Cal.App.4th 191, 217–218; Wilbanks v. Wolk, supra, 121
Cal.App.4th at p. 898).
B.
CNN argues its statements were in connection with three
issues of public significance: Los Angeles County Sheriff Lee
Baca’s retirement, Wilson’s plagiarism, and the general subject
of journalistic ethics. Considering each in turn, we conclude
Wilson’s defamation claim does not arise from speech on “a
public issue or an issue of public interest” (§ 425.16, subd. (e)(4))
that contributed to public discussion of that issue.
Sheriff Baca’s retirement was indeed a matter of public
interest.13 But Wilson’s claim does not rest on statements CNN
13
The sudden, unexpected retirement of a public official
(Mather & Sewell, Sheriff Lee Baca’s retirement: ‘Very shocking
and very surprising,’ L.A. Times (Jan. 7, 2014)
[as of July 22, 2019]), who
later was convicted of obstructing the FBI investigation into
inmate abuse in county jails (Stevens, Ex-Los Angeles Sheriff
Lee Baca Is Sentenced to 3 Years in Prison, N.Y. Times (May 12,
2017) [as of July 22,
2019]), was a chapter in an ongoing scandal that implicated
public concerns such as government misfeasance and prison
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
made about that subject; it rests instead on statements about
the reason for Wilson’s termination. The story Wilson wrote
could have been about some other topic entirely—the state of
global financial markets, gardening tips, or anything else under
the sun—and his defamation claim would be the same. CNN’s
alleged statements, although they tangentially referenced
Sheriff Baca’s retirement, did not contribute to any public, or
even private, discussion of that subject. It follows that the
defamation claim does not arise from statements made “in
connection with” any public issue related to Sheriff Baca’s
retirement. (§ 425.16, subd. (e)(4).)
CNN contends the actual subject of its statement, Wilson’s
professional competence and the reasons for his termination, is
also an issue of public interest. But not every employment
dispute—even at a prominent news organization—is a matter of
public significance. Certainly some individuals may be so
prominent, or in such a prominent position, that any discussion
of them concerns a matter of public interest. (See McGarry v.
University of San Diego, supra, 154 Cal.App.4th at p. 110.) But
absent unusual circumstances, a garden-variety employment
dispute concerning a nonpublic figure will implicate no public
issue. (See, e.g., Baughn v. Department of Forestry & Fire
Protection (2016) 246 Cal.App.4th 328, 337–339; Albanese v.
Menounos (2013) 218 Cal.App.4th 923, 934–937; Carpenter v.
Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 472; Olaes v.
Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1510–
1511; Du Charme v. International Brotherhood of Electrical
reform. All Internet citations in this opinion are archived by
year, docket number, and case name at
.
34
WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
Workers (2003) 110 Cal.App.4th 107, 113–119; Rivero v.
American Federation of State, County and Municipal
Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919–929.)
Workplace misconduct “below some threshold level of
significance is not an issue of public interest, even though it
implicates a public policy.” (Rivero, at p. 924.)
Based on the evidence CNN presented in support of its
motion, 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. CNN cites as proof of Wilson’s prominence the
numerous stories Wilson’s lawsuit and the Court of Appeal
decision generated. This reliance is unavailing: “[T]hose
charged with defamation cannot, by their own conduct, create
their own defense by making the claimant a public figure.”
(Hutchinson v. Proxmire (1979) 443 U.S. 111, 135.) Nor does
Wilson’s own evidence of his awards make him a person of such
notoriety that a statement about the reason for his termination
would necessarily concern an issue of public interest (cf.
McGarry v. University of San Diego, supra, 154 Cal.App.4th at
p. 110 [reasons for dismissing prominent university football
coach of public interest]).
CNN argues the Court of Appeal erred by making Wilson’s
status as a figure in the public eye a necessary component of any
showing that CNN’s statement about him was protected
activity. But the Court of Appeal did no such thing. Rather, the
court held that if Wilson were a figure in the public eye, that
status could be a sufficient basis to conclude statements about
him would be on a matter of public interest. (Wilson, supra, 6
Cal.App.5th at pp. 832–833, rev. granted.) Other grounds might
also have justified that conclusion even if Wilson were not well-
known. (Ibid.) We hold likewise: that a statement is about a
35
WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
person or entity in the public eye may be sufficient, but is not
necessary, to establish the statement is “free speech in
connection with a public issue or an issue of public interest.”
(§ 425.16, subd. (e)(4); see FilmOn.com Inc. v. DoubleVerify Inc.,
supra, 7 Cal.5th at pp. 145–146; Rand Resources, LLC v. City of
Carson, supra, 6 Cal.5th at p. 621.)
CNN’s final argument is that, even if Wilson is not a figure
in the public eye, discussion of his termination implicates a
larger issue that indisputably is of public interest—journalistic
ethics. This argument rests on “what might be called the
synecdoche theory of public issue in the anti-SLAPP statute”
(Commonwealth Energy Corp. v. Investor Data Exchange, Inc.
(2003) 110 Cal.App.4th 26, 34): that the discussion of a
purported lapse on the part of one of its writers is equivalent to
a conversation about the ethical lapses of all journalists
everywhere. But for anti-SLAPP purposes, as courts have long
recognized, “[t]he part is not synonymous with the greater
whole.” (Ibid.) Contrary to arguments that various defendants
have pressed over the years, “[s]elling an herbal breast
enlargement product is not a disquisition on alternative
medicine. Lying about the supervisor of eight union workers is
not singing one of those old Pete Seeger union songs (e.g., ‘There
Once Was a Union Maid’). And . . . hawking an investigatory
service is not an economics lecture on the importance of
information for efficient markets.” (Ibid.; accord, FilmOn.com
Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at p. 152; Consumer
Justice Center v. Trimedica International, Inc. (2003) 107
Cal.App.4th 595, 601; Rivero v. American Federation of State,
County and Municipal Employees, AFL-CIO, supra, 105
Cal.App.4th at pp. 919, 924.)
36
WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
Similarly, here, CNN’s alleged statements about an
isolated plagiarism incident did not contribute to public debate
about when authors may or may not borrow without attribution.
“What a court scrutinizing the nature of speech in the anti-
SLAPP context must focus on is the speech at hand, rather than
the prospects that such speech may conceivably have indirect
consequences for an issue of public concern.” (Rand Resources,
LLC v. City of Carson, supra, 6 Cal.5th at p. 625; see Consumer
Justice Center v. Trimedica International, Inc., supra, 107
Cal.App.4th at p. 601 [“If we were to accept [defendant’s]
argument that we should examine the nature of the speech in
terms of generalities instead of specifics, then nearly any claim
could be sufficiently abstracted to fall within the anti-SLAPP
statute”].) To sweep in a claim about falsehoods made regarding
a nonpublic figure, where the falsehoods do not contribute in any
meaningful way to discussion or resolution of an ongoing matter
of public significance, would do nothing to advance the statute’s
stated purpose of shielding defendants from meritless lawsuits
designed to chill speech and petitioning on matters of public
interest or controversy. (See § 425.16, subd. (a).)
Relevant, too, is the private context of the alleged
statements. Granted, private communications may qualify as
protected activity in some circumstances. (FilmOn.com Inc. v.
DoubleVerify Inc., supra, 7 Cal.5th at p. 146; Navellier v. Sletten,
supra, 29 Cal.4th at p. 91.) But the private context eliminates
any possibility of protection under section 425.16, subdivision
(e)(3), for example, and here makes heavier CNN’s burden of
showing that, notwithstanding the private context, the alleged
statements nevertheless contributed to discussion or resolution
of a public issue for purposes of subdivision (e)(4). (See
FilmOn.com Inc., at pp. 146, 150–151.)
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
This case does not resemble other cases in which speech
concerning the actions of individual nonpublic figures has been
held to contribute to ongoing debate on a public controversy. For
example, in Taus v. Loftus (2007) 40 Cal.4th 683, 712–713, we
considered the case of two scholars who had investigated a
claimed instance of repressed memory recovery and who had
published and lectured on the case study to urge caution in
acceptance of such memories. We had no difficulty concluding
the scholars’ speech concerning the lessons they drew from their
case study was entitled to anti-SLAPP protection; the speech
contributed to discussion of a matter of ongoing public debate.
Similarly, the Court of Appeal in M. G. v. Time Warner, Inc.
(2001) 89 Cal.App.4th 623 held that a magazine article and
television program addressing “the general topic of child
molestation in youth sports,” a significant public issue, were
protected, even though the article and program illustrated their
discussion with examples of specific instances of misconduct.
(Id. at p. 629.) No comparable connection between Wilson’s
alleged misconduct and any public issue is present here.
For these reasons, we conclude CNN’s privately
communicated statements about Wilson’s purported violation of
journalistic ethics do not constitute “conduct in furtherance of
. . . the constitutional right of free speech in connection with a
public issue or an issue of public interest.” (§ 425.16,
subd. (e)(4).)
V.
CNN has failed to carry its first-step burden with respect
to many of Wilson’s claims, but it has met that burden with
respect to those claims based on the termination of his
employment. CNN is therefore entitled to preliminary
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WILSON v. CABLE NEWS NETWORK, INC.
Opinion of the Court by Kruger, J.
screening of those claims to determine whether they have
minimal merit. We affirm the Court of Appeal’s judgment in
part, reverse in part, and remand for further proceedings not
inconsistent with this opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
39
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Wilson v. Cable News Network, Inc.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 6 Cal.App.5th 822Rehearing Granted
__________________________________________________________________________________
Opinion No. S239686
Date Filed: July 22, 2019
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Mel Red Recana
__________________________________________________________________________________
Counsel:
Law Offices of Lisa L. Maki, Lisa L. Maki, Jennifer Ostertag; Shegerian & Associates, Jill P. McDonnell
and Carney R. Shegerian for Plaintiff and Appellant.
FEM Law Group and F. Edie Mermelstein for Consumer Attorneys of California as Amicus Curiae on
behalf of Plaintiff and Appellant.
Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for California Taxpayers Action Network as
Amicus Curiae on behalf of Plaintiff and Appellant.
Mitchell Silberberg & Knupp, Adam Levin, Aaron M. Wais, Jolene Konnersman and Christopher A. Elliott
for Defendants and Respondents.
Davis Wright Tremaine, Kelli L. Sager, Rochelle Wilcox and Dan Laidman for Los Angeles Times
Communications LLP, CBS Corporation, NBCUniversal Media, LLC, American Broadcasting Companies,
Inc., Fox Networks Group, Inc., California News Publishers Association and First Amendment Coalition as
Amici Curiae on behalf of Defendants and Respondents.
Horvitz & Levy, Jeremy B. Rosen, Felix Shafir and Ryan C. Chapman for California Hospital Association
as Amicus Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jill P. McDonnell
Shegerian & Associates
225 Santa Monica Boulevard, Suite 700
Santa Monica, CA 90401
(310) 860-0770
Adam Levin
Mitchell Silberberg & Knupp
2049 Century Park East, 18th Floor
Los Angeles, CA 90067
(310) 312-2000