STANLEY WILSON,
S239686
IN THE SUPREME COURT OF CALIFORNIA
July 22, 2019
Second Appellate District, Division One B264944 Los Angeles County Superior Court BC559720
Justice Kruger authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, Cuéllar, and Groban concurred.
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.
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
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
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.
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 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
CNN filed an anti-SLAPP motion. (
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.
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.
II.
Enacted by the Legislature in 1992, the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the
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. (
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 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. (
CNN relies on
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
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
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
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
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
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 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. (
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
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 does reflect a purpose to protect the “valid exercise” of speech and petition rights. (
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. (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
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
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 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
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 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
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
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. (
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
The anti-SLAPP statute provides no explicit guidance for evaluating these arguments.
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
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 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.
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 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
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, 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 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.
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, 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
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
Online and on air, CNN covers myriad “matters of public significance.” (
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].)
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 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.” (
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
The reason is straightforward:
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.” (
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” (
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 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
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 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.” (
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.)
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
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
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
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.” (
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 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.