LOS ANGELES (CN) - Casting decisions made by local news networks qualify as protected speech and cannot be challenged in an employment discrimination lawsuit, a California appeals court ruled.
Meteorologist Kyle Hunter sued CBS Broadcasting in 2012 after he claimed its two LA-area affiliates - KCBS and KCAL - "repeatedly shunned him for numerous on-air broadcasting decisions due to his gender and age." He added that as early as 2010 network executives had decided to turn the primetime weather gig over to "younger attractive females."
Hunter claimed that KCAL even posted a "sham" job notice for its weather anchor position after it had already hired a young, blonde female to fill the position. He added that while he has 23 years of weather forecasting experience - and is certified by the American Meteorological Society - the new hire lacked certification and only had "two or three years of experience."
CBS moved to strike Hunter's complaint using the anti-SLAPP statute, an acronym for Strategic Lawsuits Against Public Participation, and argued that its selection of on-air personalities qualifies as protected speech. The stations' news director added that weather information is the main reason why people watch local news, and weather personalities have a significant impact on ratings as a result.
Los Angeles County Superior Court Judge Ramona G. See refused to dismiss Hunter's case, holding that CBS had failed to show its hiring decisions had anything to do with free speech in connection with a public issue.
On appeal, Second Appellate District Judge Laurie D. Zelon disagreed. She noted that numerous courts - mostly in the Second Appellate District - have held that reporting the news and creating TV shows count as free-speech activities.
"CBS's selections of its KCBS and KCAL weather anchors, which were essentially casting decisions regarding who was to report the news on a local television newscast, 'helped advance or assist' both forms of First Amendment expression," Zelon wrote. "The conduct therefore qualifies as a form of protected activity."
Zelon declined to apply Hunter's charge that CBS hides its discriminatory hiring motives behind a First Amendment façade.
"CBS's protected activity - employment decisions regarding its weather anchors - is not incidental to Hunter's discrimination claims; indeed, it is the very conduct on which his claims are based," Zelon wrote, adding that Hunter also provided no evidence that hiring reporters are First Amendment-protected casting decisions and a matter of public interest.
"Hunter essentially contends that the public had no interest in who CBS selected to serve as its weather anchor," Zelon wrote. "His argument is predicated on the assumption that, to qualify as protected activity under anti-SLAPP, the defendant's conduct must be in furtherance of free speech rights and must also qualify as a public issue or issue of public interest. The statute, however, states that conduct must be in furtherance of the exercise of free speech rights 'in connection' with a public issue or issue of public interest. Thus, the proper inquiry is not whether CBS's selection of a weather anchor was itself a matter of public interest; the question is whether such conduct was 'in connection with' a matter of public interest. As Hunter concedes, weather reporting is a matter of public interest. CBS's decisions regarding who would present those reports to the public during its broadcasts was necessarily 'in connection' with that public issue."
But the judge added that Hunter's action isn't necessarily over, since the trial court never got around to determining if the weather anchor's claims could even survive after it denied CBS's motion to strike.
"The more prudent course is to remand the matter to the trial court to determine in the first instance whether Hunter demonstrated a reasonable probability of prevailing," Zelon concluded.