TV Weather Anchor Hiring Decisions Are Acts in Furtherance of Free Speech

Thanks to a California intermediate appellate court’s recent reversal of a Los Angeles County trial court, CBS is halfway towards the early dismissal of a discrimination lawsuit filed by a man CBS declined to hire for a weather anchor position.  The case is Hunter v. CBS Broadcasting Inc.

The plaintiff, Kyle Hunter, filed a gender and age discrimination complaint against CBS Broadcasting Inc. asserting that CBS violated the California Fair Employment and Housing Act.  He alleges that two local CBS television stations in Los Angeles refused to hire him as a weather news anchor because he was male and over 40, and that CBS adopted a policy of turning prime time weather broadcasting over to young, attractive females.

California’s anti-SLAPP (strategic lawsuit against public participation) statute, codified at Code of Civil Procedure section 425.16, provides for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of free speech and petition.  The statute provides that a court has to strike a complaint brought “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue … unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

CBS filed an anti-SLAPP motion to strike the complaint.  The first prong in the analysis requires the court to determine whether the challenged acts arise from protected activity.   The court held that CBS’ acts indeed arose from protected activity.  Hunter’s claims are predicated on the selection of a news anchor, which qualifies as conduct in furtherance of the exercise of free speech rights.  The act of hiring a weather anchor need not qualify as an exercise of free speech, because the act itself need only be in furtherance of the exercise of free speech, and California courts have previously recognized that reporting the news and creating a television show both qualify as exercises of free speech.  CBS’ selection of anchors are essentially casting decisions regarding who reports the news on a newscast, and those decisions advance or assist First Amendment expression.  The conduct therefore qualifies as a form of protected activity.  The court also found that the hiring of a weather anchor is in connection with a public issue because weather reporting is a matter of public interest.

Regarding the second prong of the anti-SLAPP analysis – whether Hunter demonstrated a reasonable probability of prevailing at trial on the merits of the causes of action – the appellate court remanded the case to the trial court because the trial court never reached that prong.  If on remand Hunter cannot meet his evidentiary burden under the merits prong of the statute, then his case will be dismissed.

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