Anti-SLAPP: Caveat actor, writer and broadcast personality

Recent, ever broader interpretations of the statute may be burdensome to certain employment claims

2015 June

Much has been written about California’s Strategic Lawsuits Against Public Participation statute, California Code of Civil Procedure section 425.16 (the “anti-SLAPP statute”). When the Legislature enacted that statute, it did so with noble intentions, declaring that the statute’s purpose is to combat the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) In the years since that declaration, however, jurists and lawyers alike have come to see the anti-SLAPP statute as a problem unto itself.

In a 2002 dissenting opinion (joined by Justices Baxter and Chin), former Supreme Court Justice Brown declared that “[t]he cure has become the disease – SLAPP motions are now just the latest form of abusive litigation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 97.) The Court of Appeal sounded a similar note in Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 621-22, observing that “despite the strong policy reasons behind the statute’s enactment, both the Legislature and the courts have found that the anti-SLAPP statute has as much potential for abuse as the frivolous SLAPP suits it was enacted to summarily resolve.”

The “disease” alluded to by Justice Brown is likely to spread into the arena of employment cases, particularly ones that arise in the context of employers who produce entertainment or creative content. Two recent opinions, one handed down by the California Supreme Court and the other by the Court of Appeal, contain broad declarations concerning the First Amendment rights of those kinds of employers. Since “[n]othing in the statute itself categorically excludes any particular type of action from its operation,” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92), the potential for abusive anti-SLAPP motions now extends to claims under the California Fair Employment and Housing Act, (Government Code section 12920 et seq. (“FEHA”)) brought against employers in creative fields such as news broadcasting and television production. In California, where the First Amendment treads, anti-SLAPP motions are sure to follow.

The anti-SLAPP statute and discrimination claims

The law is evolving away from its former reluctance to apply the anti-SLAPP statute to discrimination-based claims. The two-step anti-SLAPP analysis is by now well known, having been summarized in hundreds of opinions. Under that analysis, the trial court first looks to see “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’” (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036.)

In the past, California courts had expressed a reluctance to apply the anti-SLAPP statute to discrimination claims. In Department of Fair Employment & Housing v. 1105 Alta Loma Rd. Apartments, LLC (2007) 154 Cal.App.4th 1273, the Court of Appeal declined to apply the anti- SLAPP statute to a tenant’s FEHA-based housing discrimination claims against her former landlord. While the bulk of that court’s analysis was devoted to ascertaining whether the plaintiff’s claims arose from any protected activity of the defendant, the Court of Appeal expressed its reluctance to apply the anti-SLAPP statute to any kind of discrimination claims:

Moreover, if this kind of suit could be considered a SLAPP, then landlords and owners...could discriminate during the removal process with impunity knowing any subsequent suit for disability discrimination would be subject to a motion to strike and dismissal. We are confident the Legislature did not intend for § 425.16 to be applied in this manner either. As the trial court aptly observed, “I just feel like to rule for the defendant in this case would be to say that section 425.16 provides a safe harbor for discriminatory conduct and I don’t think that’s what it’s intended to do.

(Id. at p. 1288.)

A similar concern was expressed in Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 in the context of defamation and FEHA retaliation claims. After finding that the action did not arise from any privileged governmental acts by the defendants, the Martin court stated: “As the court observed, ‘the gist of this action is clearly not only defamation.’ ‘Moreover, “if this kind of suit could be considered a SLAPP, then [employers] could discriminate ... with impunity knowing any subsequent suit for . . . discrimination would be subject to a motion to strike and dismissal.’” (Id. at p. 625.)

Recently, however, the broad language of Section 425.16 and judicial interpretations of First Amendment rights have combined to create an ideal setting for employers who produce creative or expressive content to impose anti-SLAPP burdens upon FEHA plaintiffs. Moreover, it appears that producers of creative content may now be able to file anti-SLAPP motions based upon even attenuated First Amendment connections to employment claims.

Recent broad interpretations

There have been recent broad interpretations of the “arising from” and “in connection with” language. According to Section 425.16, subdivision (b)(1), the statute applies to a “cause of action against a person arising from any act of that person in furtherance of the person’s right of...free speech” which is “in connection with a public issue.” (Emphasis added.) In the context of FEHA claims brought by individuals employed in creative fields, recent cases have interpreted the “arising from” and “in connection with” aspects of Section 425.16 very broadly. The broad interpretation of those aspects of the anti-SLAPP statute, along with the recent broad interpretation of an employer’s First Amendment rights in creative or expressive contexts, may combine to produce a dramatic explosion of anti-SLAPP motions directed at employment claims asserted against producers of creative context.

The leading case applying the anti-SLAPP statute to FEHA-based claims against producers of creative or expressive content is Hunter v. CBS Broadcasting, Inc. (“Hunter”) (2013) 221 Cal.App.4th 1510, 1514 . The plaintiff in that case, a male weather broadcaster over the age of 40, alleged that CBS violated FEHA by implementing a policy of filling prime weather broadcast position openings with attractive females under the age of 40 and by refusing to hire him for two positions based upon that policy. CBS filed an anti-SLAPP motion alleging that the claim arose from protected activity, in the form of casting on-air talent. The trial court found that the alleged failure to hire did not arise out of any protected activity and denied the motion, and CBS appealed.

The Court of Appeal began its “arising under” analysis by referring to earlier cases which held that news reporting and the creation of television shows “both qualify as ‘exercise[s] of free speech.’” (Id. at p. 1521.) Turning to the anti-SLAPP statute, the Hunter court held that Section 425.16 “is not limited to claims based on constitutionally-protected free speech or petitioning activity; it also extends to conduct undertaken ‘in furtherance’ of those constitutionally-protected activities.” (Id. at p. 1525.)

Hunter likened the selection of weather broadcasters to a casting decision that helped to “advance or assist” CBS in the exercise of its First Amendment reporting rights. Under those views, the plaintiff’s FEHA claims for failure to hire him for a broadcast position were “based squarely on CBS’s decisions regarding its choice of a weather anchor, which were acts in furtherance of its First Amendment rights,” (Id. at p. 1523.)

The Hunter court also took an expansive view of the “public interest” aspect of Section 4215.16. Rejecting the plaintiff’s argument that a hiring decision made behind closed doors is not a matter of public interest, the Court of Appeal found the public interest element present because weather reporting itself is a matter of public interest. Since the weather is a matter of public interest, the Court of Appeal reasoned that hiring decisions relating to weather broadcasters are “in connection with” a matter of public interest. In the words of the court:

The statute...states that conduct must be in furtherance of the exercise of free speech rights ‘in connection’ with a public issue or issue of public interest. Thus, the proper inquiry is not whether CBS’s selection of a weather anchor was itself a matter of public interest; the question is whether such conduct was “in connection with” a matter of public interest....CBS’s decisions regarding who would present those reports to the public during its broadcasts was necessarily “in connection” with that public issue.

(Id. at p. 1527.)

Hunter and the burdens of the anti-SLAPP statute

Because of Hunter, a variety of employment claims may be subject to the burdens of the anti-SLAPP statute even though the First Amendment has never been held to immunize employers from such claims. Although Hunter was a failure-to-hire case, its view of the scope of the First Amendment and the anti-SLAPP statute could conceivably subject a variety of other FEHA claims to the burdens and risks of Section 425.16.

Consider, for example, the dilemma faced by a female weather reporter who is repeatedly asked if she would be willing to display her breasts more prominently during broadcasts, or who is repeatedly asked to project a more sexually alluring persona on the air. The broadcaster who subjected the reporter to that conduct could easily argue that the statements at issue were in furtherance of creative goals, such as a sexy atmosphere, for the broadcast.

Under Hunter, that speech might be seen as part of the process of creating a news broadcast, and therefore as undertaken ‘in furtherance’ of constitutionally- protected activities. And, under Hunter, the employer could also argue that because there is a public interest in seeing attractive females on television, the comments in question were “in connection” with the issue of making broadcasts more sexually appealing.

Hunter certainly did not give producers of creative content free reign to harass. Nor did that opinion create a broadcaster’s exemption from FEHA. In fact, the Hunter court recognized that the anti-SLAPP statute is not intended to create any sort of immunity from liability, whether based upon the First Amendment or any other doctrine. As that court stated, the anti-SLAPP “statute does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning [citation],” nor does it confer “any kind of ‘immunity’” on protected activity. [Citation omitted.] Instead, under section 425.16, a plaintiff may pursue a discrimination claim or any other cause of action based on protected activity if he or she is able to present the “minimal” evidence necessary to demonstrate a reasonable probability of prevailing on the merits. (Hunter, supra, 221 Cal.App.4th at p. 1525.)

Although the Hunter court did not bar a plaintiff from pursuing any particular claim against a producer of creative content, that court’s broad interpretation of the reach of the anti-SLAPP statute is certain to give rise to an increase in the frequency of anti-SLAPP motions in the context of employment claims brought against producers of creative content. Under Hunter, even an attenuated connection between the claim and the broadcast setting may suffice to satisfy the first prong of the anti-SLAPP statute in the context of employment claims against producers of such content. With discovery stayed due to the filing of an anti-SLAPP motion, a plaintiff and his counsel must therefore be prepared to satisfy the second prong of the Section 425.16 test, which is factual in nature. Under the second prong, a plaintiff must demonstrate a probability of prevailing on the merits.

The second prong of anti-SLAPP in a First Amendment setting

There is uncertainty over how the second prong of the Anti-SLAPP statute might operate in a First Amendment setting. The interplay of the First Amendment and the second prong of the Anti-SLAPP statute has not been analyzed by any California court in the context of an employment case. A concurring opinion in Lyle v. Warner Bros. Television Productions (“Lyle”) (2006) 38 Cal.4th 264, 294 may, however, shed some light on how courts may address potential First Amendment defenses in that context.

In Lyle, the plaintiff was a writers’ assistant whom the defendants assigned to work on the production of the television series Friends. The series featured a great deal of adult-oriented sexual humor. By its nature, the plaintiff’s job brought her into contact with the show’s writing team as they told sexual jokes, discussed sex and turned their discussions into dialogue for scripts. She sued for a hostile work environment under FEHA. Her case made its way up to the Supreme Court, which held in a summary judgment setting that the pervasive use of sexual language in a comedy writing environment did not, due to the nature of the comedy being written, create a sexually hostile work environment.

Focusing upon the facts of the case and the language of the FEHA statutes, the majority of the Supreme Court found that “summary judgment was proper here because...none of the offensive conduct complained of meets both the ‘because of sex’ and ‘severe or pervasive’ requirements for establishing a hostile work environment sexual harassment claim” under FEHA. (Id. at p. 292.) The majority declined “to determine whether liability for such language might infringe on defendants’ rights of free speech under the First Amendment to the federal Constitution or the state Constitution.” (Id. at p. 294.)

In his concurring opinion, however, Justice Chin stated that the First Amendment might operate as a defense to FEHA claims, and presumably to any other claim that might be raised in a creative employment setting. Justice Chin wrote that the “case has very little to do with sexual harassment and very much to do with core First Amendment free speech rights. The writers of the television show, Friends, were engaged in a creative process – writing adult comedy – when the alleged harassing conduct occurred. The First Amendment protects creativity.” (Id. at pp. 295-96.)

Although he expressed a very broad view of the First Amendment’s protections in the creative context, he did not suggest that the First Amendment protects all sexually harassing speech. While recognizing that a state may, by statute, proscribe sexual harassment, he went on to express his view that “the proscription must be carefully tailored to avoid infringing on First Amendment free speech rights in the creative process. Balancing the compelling need to protect employees from sexual harassment with free speech rights can, in some contexts, present very difficult questions.” (Ibid.)

Justice Chin’s concurrence endorsed a test proposed by one of the amici curiae in the case. Under that proposed test, where an employer’s product is protected by the First Amendment, “whether it be a television program, a newspaper, a book, or any other similar work – the challenged speech should not be actionable if the court finds that the speech arose in the context of the creative and/or editorial process, and it was not directed at or about the plaintiff.” (Id. at pp. 299-300.) At this point, however, the extent to which a creative employer’s First Amendment rights might serve as a defense to an employee’s claims is unknown.

Putting Justice Chin’s views aside, even under Hunter, it seems likely that producers of creative content may be able to assert the First Amendment as a defense to at least some employment-based causes of action. Assuming that the First Amendment gives rise to some form of defense in the context of creative or expressive content, the second prong of the anti-SLAPP statute may prove extremely difficult to satisfy.

Employers can easily argue that all sorts of creative or expressive decisions were made behind closed doors, and that the allegedly offensive conduct was undertaken pursuant to the employer’s creative or expressive goals.

Pondering the future, it seems unlikely that the First Amendment would be seen as absolutely immunizing an employer against liability for discrimination simply because that employer produces protected content. “[T]he right to free speech, ‘[a]lthough stated in broad terms, . . . is not absolute.’ [Citation.]” (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1147.) There are, according to the Supreme Court, “categories of communication . . . to which the majestic protection of the First Amendment does not extend, because they ‘are . . . of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ [Citation.]” (Ibid.)

On the other hand, it is equally clear under Hunter that the First Amendment will play some role in deciding claims that arise in the context of employment in creative fields. Based upon the broad language contained in Section 425.16, and the broad interpretation of that language in Hunter, attorneys who represent talent in expressive or creative fields should anticipate the filing of anti-SLAPP motions against many employment-based claims. The process of opposing such motions should begin even before the complaint is filed.

Practical lessons for plaintiffs’ attorneys

Before filing suit, it is crucial to ascertain both the nature of the defendant’s creative output and the nature of the process by which that output is generated. It is equally crucial to understand where the plaintiff fits into both the creative output and the process of generating that output. Armed with that information, the complaint should be tailored to avoid, to the greatest extent possible, asserting claims based upon either content, or the processes that are inseparable from the creation of that content. And, to the greatest extent possible, plaintiffs should be prepared to argue that the conduct they object to was directed at them personally, as opposed to part of a creative process.

Given the relative ease with which a defendant can satisfy the first prong in the creative context, plaintiff’s counsel should take pains to address the second prong. While California courts have not yet described how the second prong might work when a defendant argues a First Amendment defense against liability, plaintiff’s counsel should be familiar with the underlying factual context, should be prepared to outline that context for the court, and should be prepared to argue that the offensive conduct was not legitimately within the creative process.

Conclusion

Despite all of the challenges inherent in the language of Section 425.16, plaintiffs employed in creative fields can defeat anti-SLAPP motions. Unfortunately, victory may come at a price. Assuming that the trial court denies the defendant’s motion, the plaintiff and his or her counsel must be prepared to wait out an appeal by the defendant and, after all that, to go without attorneys’ fees despite the agony of the process. Under the anti-SLAPP statute, a plaintiff who loses is automatically liable for the defendant’s attorneys’ fees, while a plaintiff who wins can only recover attorneys’ fees from the defendant if the motion is found to be “frivolous or... solely intended to cause unnecessary delay.” (Code Civ. Proc., § 425.16, subd. (c)(1).) In short, a defendant has little to lose, and much to gain, by asserting an anti-SLAPP motion against employment-related claims by plaintiffs who work in creative or expressive fields. Counsel should therefore be prepared.