Can a news organization avoid a discrimination claim by arguing that it was exercising its First Amendment right to choose who writes the news?
That’s the question that the California courts have been grappling with in Stanley Wilson’s case against CNN. And that question has now been answered in Wilson’s favor.
Wilson, who is African-American and Mexican-American, was an Emmy-winning producer at CNN. In 2014, CNN fired Wilson after he wrote a story about retiring Los Angeles County Sherriff Lee Baca. CNN claimed that he plagiarized part of the story and that it had audited other pieces by Wilson and found more plagiarism.
In the famous words of Network’s Howard Beale, Wilson was “mad as hell” and “was not going to take this anymore.” He sued CNN in California state court, alleging discrimination based on age, race, and association with a disabled person (his wife). He also alleged that CNN had retaliated against him for earlier complaints about discrimination, and defamed him by accusing him of plagiarism.
CNN responded by filing an anti-SLAPP motion against Wilson. As we covered in this post, SLAPP stands for “strategic lawsuit against public participation.” California’s anti-SLAPP law allows a party to move to strike a “cause of action” based on its exercise of its First Amendment rights. CNN argued that the court should strike Wilson’s claims because they hinged on its exercise of its First Amendment right to decide who would present the news.
Eventually, the California Supreme Court weighed in. In a 2019 decision, Wilson v. Cable News Network, Inc., the court held that Wilson’s employment-related claims might be subject to dismissal under the anti-SLAPP statute, because they could arise from CNN’s protected First Amendment conduct: specifically, its exercise of editorial control over plagiarized material. But the court declined to decide that issue. Rather, it sent the case back to the lower appellate court to decide whether Wilson’s claims had “sufficient potential merit” to proceed despite these First Amendment concerns.
On Tuesday, the California Court of Appeal answered that question, finding that Wilson had shown that his claims had the “minimal merit necessary.” He provided evidence that CNN had unfairly disciplined him in the past, and repeatedly denied him promotion in favor of white candidates. He also showed that other CNN writers engaged in plagiarism without being terminated. Because this evidence was sufficient to show that CNN’s ground for terminating him—his plagiarism—could have been pretextual, the court reversed the trial court’s order granting CNN’s anti-SLAPP motion, and sent the case back for discovery.
This does not mean Wilson has finally prevailed. But it does mean that CNN cannot close the courtroom door to him by shielding itself behind the First Amendment. Whether CNN in fact terminated him because of his plagiarism, or for some improper reason, will have to be fully litigated, just as it would in an employment case not implicating First Amendment concerns.