Free Speech and Ron Burgundy: Lessons from Hunter v. CBS

by Greenberg Glusker Fields Claman & Machtinger LLP
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A man applies to be a weather anchor.  The station instead hires “younger attractive females.”  The man then sues the station, alleging discrimination.

This may sound like the plot of an Anchorman sequel (as Champ Kind memorably declared in the first movie: “It is anchorman, not anchorlady. And that is a scientific fact.”).  But it’s actually the fact pattern of Hunter v. CBS Broadcasting, a recent California appellate court decision.

In the case, meteorologist Kyle Hunter filed an employment discrimination complaint alleging that CBS “repeatedly shunned [him] for numerous on-air broadcasting positions . . . due to . . . his gender and his age” as “part of [a] plan to turn prime time weather broadcasting over to younger attractive females.”  CBS responded by filing a motion to dismiss Hunter’s lawsuit under California’s anti-SLAPP statute.

The Forecast is HOT with a chance of HOT

First thing’s first.  Here are pictures of the meteorologists in question:

Meteorologists Evelyn Taft, Kyle Hunter, and Jackie Johnson

What is anti-SLAPP?

Before diving into the merits, some background on anti-SLAPP:

The statute may have a funny name — SLAPP is an acronym for Strategic Lawsuits Against Public Participation — but it’s a valuable tool for media defendants:  it allows them to obtain “the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech.”

Under the statute, a defendant first must show that the challenged activity — in this case, CBS’ decision to hire anchors other than Hunter — is “an act in furtherance of . . . free speech . . . in connection with a public issue.”  If the defendant makes this showing, the plaintiff nonetheless may defeat the motion by establishing a reasonable probability of prevailing on the merits — in this case, that Hunter would prevail on his discrimination claim.

Is Hiring Hot, Young Meteorologists Instead of Old, Award-Winning Male Meteorologists Protected Free Speech Activity?

CBS argued that Hunter’s lawsuit interfered with the station’s First Amendment rights because its “decision[s] as to who to select to represent itself in an on air broadcast . . . is an act in furtherance of free speech.”  (Or as CBS punned: “The forecast calls for a vigorous defense by CBS and an early dismissal of the complaint.”)  Hunter countered that the “act” underlying his claim had nothing to do with free speech, but instead was a “hiring policy” that “impose[d] a ban on the hiring of males from the most select positions.”

CBS clearly outshined Hunter on the weather-related puns front (sorry, we couldn’t resist).  But the trial court sided with Hunter on the merits, denying CBS’ motion.  CBS appealed.

A panel of appellate judges reversed, holding that a station’s selection of news anchors — even those that report the weather — “qualifies as a form of protected activity” under the anti-SLAPP statute.  The panel first noted that courts previously have recognized that “[r]eporting the news” and “creat[ing] . . . a television show” both qualify as exercises of free speech.  The panel then explained that CBS’ selection of weather anchors — “which were essentially casting decisions regarding who was to report the news on a local television newscast” — was a natural extension of this exercise of free speech.

But is it Still Discriminatory?

The outcome isn’t all sunny for CBS (last one, we swear).  First, the trial court still must decide whether Hunter demonstrated a reasonable probability of prevailing on the merits of his discrimination claim.

Second, the decision may be vulnerable to review by the California Supreme Court.  At least one law professor thinks that the decision is “clearly wrong.”  According to the law professor:  “There’s no reason why you need a hot young woman in order to get your message across about whether it’s going to rain tomorrow.  The fact that you’re engaged in corporate speech doesn’t mean that everything you do is somehow immunized and protected by either the Constitution or the anti-SLAPP statute.”

For now, though, the decision establishes important precedent for news stations: free speech protections don’t just extend to what an anchor says on the air, but the decision to hire the anchor in the first instance.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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