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

by Greenberg Glusker Fields Claman & Machtinger LLP

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.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.