Misconceptions and Appellate “SLAPP-Downs”: The Applicability of the Anti-SLAPP Statute to Discrimination Claims

Vol. 30 No. 3

By

Keri Borders is a shareholder in the Litigation Practice Group with Buchalter Nemer in Los Angeles, CA.

In California, can employment discrimination cases be struck via an anti-SLAPP motion? What about other discrimination claims? What about a case where the defendant’s alleged fraud endangered the life of the plaintiff? If your answer was no, you are wrong—on all counts. However, you are in good company as trial courts have been wrong, too, only to be overturned at the appellate level. A recent trio of California appellate decisions—Doe v. Gangland Productions, Inc., Greater Los Angeles Agency on Deafness v. CNN, and Hunter v. CBS Broadcasting Inc.—illustrates that the anti-SLAPP statute and its protection of First Amendment rights are far-reaching and extend even to cases where a plaintiff alleges abusive conduct or discriminatory employment practices.

Application of the Anti-SLAPP Statute

In a SLAPP (strategic lawsuit against public participation) case, a plaintiff essentially tries to silence a defendant. In an anti-SLAPP suit, the defendant fights back. The California anti-SLAPP law was designed to protect free speech rights. The California legislature found “a 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.” The legislature determined that it was “in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.”1 Despite the good intentions employed during the crafting of the anti-SLAPP statute, however, courts have not always applied the law as it was intended.

In all of the above cases, anti-SLAPP motions brought by media defendants were originally denied, not because plaintiffs’ claims were meritorious but because trial courts decided that defendants were not entitled to invoke the anti-SLAPP statute in circumstances where the complaint characterized a defendant’s actions as wrongful or illegal. Each of the trial courts denied defendants’ anti-SLAPP motion without considering the merits of plaintiff’s claims. In so doing, the trial courts each expressed a fear that a mere finding that the anti-SLAPP statute applied to plaintiff’s claims (without necessarily granting the motion) would somehow immunize media companies from wrongdoing and would, in turn, cause a flood of anti-SLAPP motions. On its face and as applied, however, the anti-SLAPP statute does neither of these two things: it does not provide broad immunity to media companies, nor does it sanction the dismissal of meritorious lawsuits. To the contrary, a complaint can be struck under the anti-SLAPP statute only if the court finds that the plaintiff’s claims lack merit. So why is there so much fear on the part of trial courts to apply the anti-SLAPP statute?

As anti-SLAPP jurisprudence continues to evolve, courts are faced with more complex and difficult questions about its application. Prior to the aforementioned trio of cases, there was only one reported case that applied the anti-SLAPP statute to a claim of discrimination. It seems that courts feel that they have been put in the seemingly impossible position of deciding what is more valuable: antidiscrimination laws or the First Amendment. But the anti-SLAPP statute does not require courts to make that choice. More than a decade ago, the California Supreme Court tackled these issues head-on and issued a clear ruling that the anti-SLAPP statute must be applied to all claims and that allegations of invalidity of First Amendment rights or illegality of the defendant’s actions should not be a part of the court’s analysis in determining whether a plaintiff’s claims are governed by the anti-SLAPP statute. Despite this teaching, misconceptions remain, particularly where the legality of the defendant’s actions is in question.

The language of the anti-SLAPP statute itself is straightforward; it states that any

cause of action against a person 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 shall be subject to a specialmotion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.2

In practice, this standard first requires the defendant to show that it was engaged in conduct in furtherance of the right of free speech and “in connection with an issue of public interest.”3 If the defendant is able to do so, then the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits of each of the plaintiff’s claims.4 Courts are required to engage in this two-pronged analysis, and both are equally important in analyzing whether a claim should be struck. As will be shown, however, when faced with claims asserting discrimination, it is the tendency of the trial courts to conflate these two prongs and to focus only on the first part of the analysis without giving weight to whether the plaintiff has satisfied its burden of showing that its claims have merit.

Navellier v. Sletten

Much of the apparent confusion involved in applying the anti-SLAPP statute relates to the mistaken belief that in order for the anti-SLAPP statute to be applicable, the defendant must be engaged in a “valid” exercise of First Amendment rights. Taken to its logical conclusion, therefore, courts also conclude that the anti-SLAPP statute does not apply to certain claims (i.e., discrimination claims). More than a decade ago, however, the California Supreme Court rejected both of these propositions in Navellier v. Sletten.5 Given the straightforward language in Navellier, it is perplexing that this analysis remains problematic for some courts.

In Navallier, the plaintiff originally sued the defendant in federal court. During the pendency of that litigation, the parties came to partial agreement and the defendant executed a release of all of its claims against the plaintiff. Subsequently, the plaintiff amended its complaint in federal court to assert new claims against the defendant. In response, the defendant filed a counterclaim against the plaintiff. Both the plaintiff’s claims and the defendant’s counterclaims were ultimately dismissed.

While appeals of the dismissals of the plaintiff’s complaint and the defendant’s counterclaim were pending in the U.S. Court of Appeals for the Ninth Circuit, the plaintiff filed a California state court action asserting that the defendant had breached the release and committed fraud by filing the counterclaim in the federal action because the release precluded the counterclaim.6 In response, the defendant filed an anti-SLAPP motion, asserting that the plaintiff’s claims were based on defendant’s petitioning activity protected by the First Amendment.7 The trial court denied the anti-SLAPP motion, and the court of appeals affirmed. Among the arguments relied upon by both the trial court and the court of appeals in affirming the denial of the motion were the following: (1) the anti-SLAPP statute did not apply to “garden variety breach of contract and fraud claim[s]”; (2) defendant’s petitioning activity was not a “valid” exercise of his First Amendment rights because his claims were barred by the release; and (3) if the anti-SLAPP statute applied, it would “immunize” defendant’s wrongdoing.8

The California Supreme Court rejected all three of these arguments. First, the California Supreme Court made clear that in analyzing the applicability of the anti-SLAPP statute, the focus is not on the label of the cause of action but instead on “the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.”9 Accordingly, no cause of action is “categorically excluded” from the anti-SLAPP statute.10

As for the assertion that only “valid” exercises of First Amendment rights are provided with the protections offered by the anti-SLAPP statute, the court held that a defendant is not required to show that its actions were a “valid exercise” of constitutionally protected speech and petition rights in order to avail itself of the anti-SLAPP statute. “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 plaintiffs [secondary] burden to provide a prima facie showing of the merits of the plaintiffs claims.’”11 Arguing that a defendant must prove validity improperly conflates the two prongs, the court noted, adding thus:

The [l]egislature did not intend that in order to invoke the [statute] the defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law. If this were the case then the [secondary] inquiry as to whether the plaintiff has established a probability of success would be superfluous.12

Navellier also rejected the argument that the anti-SLAPP statute provides immunity from wrongdoing, making it clear that in no way does the anti-SLAPP statute bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning.13 The only claims against which the anti-SLAPP statute provides “immunity” or provides for dismissal are those claims that fundamentally lack merit. In particular, the California Supreme Court noted held that “the anti-SLAPP statute neither constitutes—nor enables courts to effect—any kind of ‘immunity.’ . . . The . . . inclusion of a merits prong . . . preserves appropriate remedies . . . by ensuring that claims with the requisite minimal merit may proceed.”14

Navellier is the law of the land in California when it comes to the analysis of whether the anti-SLAPP statute applies to a particular claim. However, even though its language is unambiguous, courts still struggle with the concept that no claim is immune from the anti-SLAPP statute and instead, still needlessly attempt to make a determination as to the “validity” of the defendant’s alleged First Amendment right in determining whether the anti-SLAPP statute applies in the first instance. Nevertheless, as media defendants, in particular, have become more confident about the protections provided by the anti-SLAPP statute, courts seem to have become more reticent. The recent cases discussed below, all overturned on appeal, reflect this pattern.

Doe v. Gangland Productions, Inc.

The first of these cases is Doe v. Gangland Productions, Inc.15 Doe involved a documentary television series called Gangland, which detailed American street gangs. One of the primary hallmarks of the show was the use of interviews with actual gang members. The plaintiff in Doe was a former gang member turned police informant who agreed to be interviewed on camera for the series.16 The plaintiff alleged that he agreed to be interviewed for the show on the condition that his identity would be concealed. He asserted that he even went so far as to bring items to the interview to conceal his identity, but he removed them because he was allegedly told by the producers that “his identity would be concealed [in] the production process.”17 The defendants, the producer and broadcaster of Gangland, contended that they made no promises or representations to plaintiff about concealing his identity. To the contrary, the defendants argued that the plaintiff signed a release that explicitly gave them the right to broadcast his identity on the show.18 The plaintiff’s identity was not concealed in the broadcast of Gangland.19 The plaintiff alleged that the defendants’ failure to conceal his identity caused him to receive death threats, endangered his life, and made it impossible for him to continue working as a police informant.20 He filed suit against the producers and broadcaster of Gangland, asserting, among other things, claims for public disclosure of private facts, intentional and negligent infliction of emotional distress, misappropriation of his likeness, and fraud.21

The defendants filed a motion to strike the plaintiff’s complaint under the anti-SLAPP statute. The defendants asserted that the anti-SLAPP statute applied to the plaintiff’s claims because the claims arose from the defendants’ acts of conducting an interview for the purpose of creating and broadcasting an episode of Gangland and their creative decision to reveal the plaintiff’s identity in the broadcast of the show. 22 Accordingly, the defendants contended that the acts complained of in the complaint were acts in furtherance of their First Amendment right to create and broadcast a television show.

The trial court denied the motion, finding that the anti-SLAPP statute did not apply because the defendants’ acts were not in furtherance of the right of free speech.23 Despite the plain language of Navellier, the trial court felt compelled to note (even though it is irrelevant to the analysis) that the case had not been brought with the intention to chill the defendants’ First Amendment rights because Gangland had already aired.24 In conducting its analysis, the trial court determined that the “principal thrust” of the plaintiff’s claim was the defendants’ alleged fraud and the validity of the release, both of which occurred prior to the interview. Accordingly, the trial court found that the defendants’ protected First Amendment activity (the creation, production, and broadcast of Gangland that included the interview) merely “lurk[ed] in the background” of the plaintiff’s claims.25

The trial court’s ruling is a prime example of how the manner in which a defendant’s acts are portrayed can radically affect the outcome of the analysis of whether the anti-SLAPP statute applies. Here, the district court took an extremely narrow view of the defendants’ acts and articulated them in a manner that justified finding that the defendants’ acts were not in furtherance of a First Amendment right. It is notable that the decision contained no discussion or analysis of what constitutes an act “in furtherance” of a First Amendment right. The trial court justified its narrow focus and interpretation of the defendants’ acts as necessary in order to control the “floodgates that would drown the courts in the waters of anti-SLAPP litigation.”26 The trial court did not analyze the relative merit of any of the plaintiff’s claims, nor did it determine that those claims had merit, which would also have provided an independent basis to deny the anti-SLAPP motion.27

The defendants appealed the finding that the anti-SLAPP statute did not apply, a finding that the Ninth Circuit reversed in a published decision.28 In particular, the Ninth Circuit rejected the trial court’s finding that the defendants’ alleged fraud with respect to the interview of the plaintiff placed defendants’ broadcast of the show outside the protection of the anti-SLAPP statute. By so doing, “[t]he district court incorrectly concluded that under the anti-SLAPP statute, a lawful broadcast is in furtherance of Defendants’ right of free speech, but an unlawful broadcast is not. The district court’s analysis conflated the two distinct prongs of the anti-SLAPP statute.”29 To the contrary, the Ninth Circuit found that the “[p]laintiff’s claims were based on the [d]efendants’ acts of interviewing [p]laintiff for a documentary television show and broadcasting that interview,” acts that “were in furtherance of [the] right of free speech.”30 The plaintiff’s assertion that the defendants fraudulently disclosed his identity has no bearing on whether [d]efendants [were] engaged in protected [conduct].” Moreover, contrary to the finding of the trial court, the appeals court found that but for the production and broadcast of Gangland, the plaintiff would not have any claims against the defendants. Accordingly, it held that “[p]laintiff’s assertion that the defendants fraudulently disclosed his identity has no bearing on whether defendants [were] engaged in protected [conduct].”31 The Ninth Circuit reiterated Navellier and its instruction that in determining whether the anti-SLAPP statute applies, “a court does not evaluate whether a defendant’s conduct was lawful or unlawful.”32

Having found that the anti-SLAPP statute applied, the Ninth Circuit then went on to analyze the merits of the plaintiff’s claims and found that the plaintiff had met his burden of showing that four of six of his claims had merit. Accordingly, the Ninth Circuit still denied the anti-SLAPP motion as to those claims.33 The Ninth Circuit’s decision in Doe illustrates how the anti-SLAPP analysis should be conducted and that the alleged illegality or wrongfulness of a defendant’s actions is strictly confined to the second prong of the anti-SLAPP analysis.

Greater Los Angeles Agency on Deafness v. CNN

This same scenario repeated itself in Greater Los Angeles Agency on Deafness v. CNN.34 Plaintiff filed a lawsuit asserting that the defendant’s failure to provide closed captioning for the hearing impaired on videos posted on its website violated the Unruh Civil Rights Act and the California Disabled Persons Act.35 In response to the complaint, CNN filed an anti-SLAPP motion asserting that closed-captioning video content and the related editorial decision not to close-caption content on its website were acts in furtherance of its First Amendment rights of gathering and reporting the news.36

The district court disagreed and denied the anti-SLAPP motion, relying in large part on the district court decision in Doe. The trial court decided that because closed captioning did not alter or change the content of the news broadcast itself, then the act of closed-captioning content could not be an act in furtherance of CNN’s First Amendment rights.37 In fact, the trial court went so far as to say that the “proposed application of the anti-SLAPP statute to [the] conduct here would result in a rule without limits” and would potentially immunize media companies from wrongdoing.38 In coming to that conclusion, the trial court relied on numerous erroneous assertions, including that the anti-SLAPP statute was intended to apply only to a “valid exercise” of free speech, that the courts should be wary of broad applications of the statute that could “open the courts to a flood of anti-SLAPP litigation,” and that “California courts often do not apply the anti-SLAPP cases to discrimination claims. . . .”39 Because the district court found that the anti-SLAPP statute did not apply, it did not address whether the plaintiff’s claims had merit.40

Once again, this decision was formulated in the face of clear, binding precedent to the contrary. It appears that the plaintiff’s disability discrimination claims and allegations of wrongdoing caused the district court to shy away from applying the anti-SLAPP statute.

The Ninth Circuit reversed, however, finding that the defendant’s acts (a news agency electing not to close-caption video content on its website) were in furtherance of the right of free speech.41 In so doing, the Ninth Circuit recognized that the anti-SLAPP statute was to be construed broadly.42 There was no dispute that the defendant had a protected First Amendment right to report the news.43 Unlike the district court decisions in Doe and in Hunter v. CBS Broadcasting Inc., discussed in the next section, the Ninth Circuit’s analysis was whether closed captioning of programming was an act that “helps to advance or assists in the exercise of [defendant’s] First Amendment right.” 44 The Ninth Circuit reasoned that plaintiff “seeks to change the way CNN has chosen to report and deliver that news content by imposing a site-wide captioning requirement on CNN.com. In so doing, [plaintiff] targets conduct that advances and assists CNN in exercising its protected right to report the news.”45 The Ninth Circuit made clear that its decision in no way reflected a conclusion that every action against a media organization falls within the anti-SLAPP statute. Instead, “where, as here, an action directly targets the way a content provider chooses to deliver, present or publish news content on matters of public interest, that action is based on conduct in furtherance of free speech rights and must withstand scrutiny under California’s anti-SLAPP statute.”46

Hunter v. CBS Broadcasting Inc.

A similar scenario has also played out in California state courts. The plaintiff in Hunter filed a lawsuit against two local television stations in Los Angeles. He asserted gender – and age-discrimination claims under California’s Fair Employment and Housing Act.47 In Hunter, the plaintiff (a man over the age of forty) alleged that he applied, but was not hired, for an open position of on-air weather anchor for the prime-time news at a local television station. The defendants ultimately hired a woman, under the age of forty, for the open position. The plaintiff alleged that the defendants’ decision to hire a less-qualified woman over him (an allegedly more qualified man) was “part of [a] plan to turn prime time weather broadcasting over to younger attractive females.”48

In response to the complaint, the defendants filed an anti-SLAPP motion asserting that the selection of an individual to appear on-air in its television news broadcast was an act in furtherance of its right to free speech.49 Relying in large part on the district court opinions in Doe and Greater Los Angeles Agency on Deafness, the plaintiff opposed the anti-SLAPP motion by arguing that employment discrimination was not a “valid” exercise of the right of free speech and that the employment-discrimination claims were not subject to the anti-SLAPP statute because to find otherwise would be tantamount to a “rule that there is a complete immunity to FEHA” for media companies.50

Although the trial court did not issue a written opinion explaining its reasoning, it apparently agreed with the plaintiff because it denied the anti-SLAPP motion on the ground that the defendant had “not shown that its hiring decisions regarding weather anchors constitute conduct in furtherance of the defendant’s right of free speech in connection with a public issue.”51 Having found that the anti-SLAPP statute did not apply, the trial court did not consider the merits of whether the plaintiff had established that his claims had merit. Thus, it appears that the trial court ignored the holding of the California Supreme Court that no claim is categorically exempt from the anti-SLAPP statute. Allegations of wrongful or illegal conduct on the part of the defendants were again sufficient to persuade a trial court that the anti-SLAPP statute did not apply in the first instance.

The defendants appealed, and the California Court of Appeal, Second District, reversed the trial court’s decision that the anti-SLAPP statute did not apply.52 In its decision, the appellate court reiterated the principle set forth in Navellier that no claim is categorically excluded from the anti-SLAPP statute. The court corrected the fallacy that the anti-SLAPP statute “immunizes” wrongful or illegal acts, reminding trial courts that the second prong provides a safeguard against the dismissal of meritorious claims.53 In analyzing whether the anti-SLAPP statute applied to the plaintiff’s claims, the court held that it was beyond dispute that creating television programming and reporting the news were acts protected by the First Amendment right of free speech. Accordingly, the court reasoned that the casting of on-air weather anchors, the people who actually appear on camera and report the news, was an act in furtherance of the First Amendment rights of reporting the news and creating a television show.54 Similar to the Ninth Circuit’s decision in Doe, the California Court of Appeal flatly rejected the argument that the defendant’s alleged discriminatory motive in making the casting decision took it outside the protection of the anti-SLAPP statute.55

Conclusion

Prior to Doe, Greater Los Angeles Agency on Deafness, and Hunter, there was scant case law applying the anti-SLAPP statute to claims involving unlawful discrimination or other allegedly morally culpable behavior. Because the anti-SLAPP statute is a law of relatively limited application, the jurisprudence surrounding it still continues to evolve. The lack of specific precedent has created an environment of uncertainty when it comes to the statute’s use and application. The trio of recent cases shows, however, that when the anti-SLAPP statute is correctly and thoroughly applied, the doomsday results predicted by so many simply have not and will not occur.

It is understandable that courts and litigants are wary of any perceived defense tool that could be used to restrict the availability of antidiscrimination statutes, which are designed with the noble intent of protecting those who are most vulnerable. Those same trial courts, however, are also familiar with the glut of unmeritorious claims that continue to be filed. Just as the legislature established antidiscrimination statutes as a tool for potential plaintiffs, the same legislature established the anti-SLAPP statute as a tool for potential defendants. Although the focus of much commentary about the evil of the anti-SLAPP statute focuses on the burden placed on plaintiffs, the burden placed on defendants by frivolous litigation should not be overlooked. It has often been said that protecting freedom of speech is not necessarily pretty, but it is fundamental. Along these lines, the anti-SLAPP statute can create somewhat ugly reactions, but ultimately its goal is beautiful and significant—protecting freedom of expression.

Endnotes

1. Cal. Civ. Proc. Code § 425.16(a) (year).

2. Id. § 425.16(b)(1).

3. Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002).

4. Id. at 88.

5. Id. at 82.

6. Id. at 86.

7. Id.

8. Id. at 91–95 (internal citation omitted).

9. Id. at 92 (emphasis in original).

10. Id. at 92–93.

11. Id. at 94–95.

12. Id.

13. Id. at 93.

14. Id.

15. 802 F. Supp. 2d 1116 (C.D. Cal. 2011).

16. Id. at 1118.

17. Doe, 730 F. 3d 946, 951 (9th Cir. 2013).

18. Id. at 957.

19. Id. at 950.

20. Doe, 802 F. Supp. 2d at 1118.

21. Id.

22. Id. at 1120.

23. Id. at 1125.

24. Id. at 1122.

25. Id. at 1121–22.

26. Id. at 1122.

27. Id. at 1125.

28. Doe, 730 F.3d 946.

29. Id. at 954.

30. Id. at 953.

31. Id. at 954–55.

32. Id. at 954.

33. Id. at 963.

34. 862 F. Supp. 2d 1021 (N.D. Cal. 2012).

35. Id. at 1024.

36. Id.

37. Id. at 1030–32.

38. Id. at 1032.

39. Id. at 1033–34.

40. Id. at 1036.

41. Greater L.A. Agency on Deafness, 742 F.3d 414, 419 (9th Cir. 2014).

42. Id. at 421–22.

43. Id. at 422–23.

44. Id. at 422.

45. Id. at 423.

46. Id. at 424–25.

47. Hunter v. CBS Broad. Inc., 221 Cal. App. 4th 1510 (2013).

48. Id. at 1514 (quoting complaint).

49. Id. at 1515, 1518.

50. Id. at 1517–18.

51. Id. at 1518.

52. Id. at 1521.

53. Id. at 1525.

54. Id. at 1521.

55. Id. at 1525.

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