Wilson v. Cable News Network, Inc.

IN THE SUPREME COURT OF

CALIFORNIA

STANLEY WILSON,

Plaintiff and Appellant,

v.

CABLE NEWS NETWORK, INC., et al.,

Defendants and Respondents.

S239686

Second Appellate District, Division One

B264944

Los Angeles County Superior Court

BC559720

_________________________________________________________

July 22, 2019

Justice Kruger authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Cuéllar, and Groban concurred.

_________________________________________________________

WILSON v. CABLE NEWS NETWORK, INC.

S239686

Opinion of the Court by Kruger, J.

Code of Civil Procedure section 425.16 (section 425.16),

commonly known as the anti-SLAPP statute, allows defendants

to request early judicial screening of legal claims targeting free

speech or petitioning activities. We consider two questions

concerning the application of the anti-SLAPP statute to certain

claims arising in the employment context.

The primary question before us concerns the statute’s

application to employment discrimination and retaliation

claims. Here, a journalist alleges that his employer denied him

promotions, gave him unfavorable assignments, and ultimately

fired him for unlawful discriminatory and retaliatory reasons.

Some courts of appeal, including the court in this case, have

concluded the anti-SLAPP statute cannot be used to screen

claims alleging discriminatory or retaliatory employment

actions. We hold otherwise. The statute contains no exception

for discrimination or retaliation claims, and in some cases the

actions a plaintiff alleges in support of his or her claim may

qualify as protected speech or petitioning activity under section

425.16. In such cases, the plaintiff’s allegations about the

defendant’s invidious motives will not shield the claim from the

same preliminary screening for minimal merit that would apply

to any other claim arising from protected activity. The

defendant employer in this case has shown plaintiff’s claims

arise in limited part—though not in whole—from protected

activity. The employer is therefore entitled to a determination

WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

of whether those limited portions of plaintiff’s claims have

sufficient potential merit to proceed.

The second question concerns the application of the anti-

SLAPP statute to the journalist’s claim that defendant defamed

him by privately discussing the alleged reasons for his

termination with potential employers and others. We conclude

that this claim need not be screened for merit because these

privately communicated remarks were not made in connection

with any issue of public significance, as the statute requires.

(See § 425.16, subds. (a), (b)(1), (e)(4).) We thus affirm in part,

reverse in part, and remand for further proceedings.

I.

Plaintiff Stanley Wilson began working for Cable News

Network, Inc., in 1996, and wrote and produced stories for the

network for more than 17 years. During his tenure, Wilson

covered matters of general public importance, including

multiple presidential elections, the Bush v. Gore controversy,

the September 11, 2001 attacks, and Hurricane Katrina. For

his work, Wilson attained recognition in the field, receiving

three Emmy awards and many other journalism honors.

In 2004, Wilson, who is African American and Latino,

began raising concerns about the network’s treatment of

African-American men. He also took a five-week paternity leave

after the birth of his twin children in 2013. According to Wilson,

the network rewarded him with menial assignments and denied

him promotions in favor of younger and less experienced White

candidates.

Wilson’s tenure came to an end in 2014, after Wilson

drafted a story covering the unexpected retirement of Los

Angeles County Sheriff Lee Baca. An editor reviewing the draft

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Opinion of the Court by Kruger, J.

flagged several passages that appeared similar to another news

organization’s published story. Citing concerns about

plagiarism, the network placed Wilson on leave of absence and

ultimately fired him.

Wilson filed suit against Cable News Network, Inc.,

various affiliated corporate entities, and his supervisor. (For

simplicity’s sake, we will refer to defendants collectively as

CNN.) Wilson’s complaint contains seven causes of action, six

of which challenge CNN’s alleged discrimination and

retaliation. Specifically, Wilson alleges he was denied

promotions, given unfavorable assignments, and ultimately

fired because of his race and other protected characteristics,1 as

well as in retaliation for exercising his right to make complaints

about discrimination and his right to take parental leave. (See

Gov. Code, §§ 12940, 12945.2.) He further alleges wrongful

termination in violation of the public policy against employment

discrimination and retaliation. (See Gantt v. Sentry Insurance

(1992) 1 Cal.4th 1083, 1089–1097.) In his seventh and final

cause of action, Wilson alleges that CNN defamed him by telling

prospective employers and others that Wilson had committed

plagiarism in violation of CNN’s standards and practices.

CNN filed an anti-SLAPP motion. (§ 425.16.)2 It argued

that the first six causes of action arose, in whole or in part, from

1

Wilson was 51 when he was fired. His wife had a medical

condition. On these facts, Wilson alleges CNN discriminated

against him because of his age and association with a disabled

person. (See Gov. Code, §§ 12926, subd. (m), 12940, subd. (a).)

2

An anti-SLAPP motion seeks to strike a “[s]trategic

lawsuit against public participation,” that is, a “SLAPP.” (See

Briggs v. Eden Council for Hope & Opportunity (1999) 19

Cal.4th 1106, 1109 & fn. 1.)

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WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

Wilson’s termination, and CNN’s decision to fire Wilson was in

furtherance of its right to determine who should speak on its

behalf on matters of public interest. CNN further argued that

the defamation cause of action arose from protected speech

because its statements as to whether Wilson met CNN’s

editorial standards in reporting on a matter of public interest

furthered CNN’s exercise of free speech rights. The trial court

agreed with these arguments, concluded that Wilson had not

shown any of his claims had minimal merit, and granted the

motion.

A divided Court of Appeal reversed. (Wilson v. Cable News

Network, Inc. (2016) 6 Cal.App.5th 822, review granted Mar. 1,

2017, S239686 (Wilson); see id. at p. 840 (dis. opn. of Rothschild,

P. J.).) The majority held the trial court erred in granting the

motion to strike Wilson’s employment discrimination and

retaliation claims because the claims arose from “defendants’

allegedly discriminatory and retaliatory conduct against him,

not the particular manifestations of the discrimination and

retaliation, such as denying promotions, assigning him menial

tasks, and firing him.” (Id. at p. 836.) Reasoning that

discrimination and retaliation do not qualify as protected

activity, even when committed by a news organization, the

majority concluded the anti-SLAPP statute did not apply. (Id.

at pp. 834–837.) The dissent disagreed, urging that the claims

arose from CNN’s decision about who would report the news on

its behalf, a decision in furtherance of CNN’s exercise of free

speech rights. (Id. at pp. 840–842 (dis. opn. of Rothschild,

P. J.).) The majority and dissent likewise disagreed over the

treatment of Wilson’s defamation claim: The majority thought

the trial court was wrong to strike the claim, while the dissent

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Opinion of the Court by Kruger, J.

took the opposite view. (See id. at pp. 837–840; id. at pp. 845–

846 (dis. opn. of Rothschild, P. J.).)

The Court of Appeal’s decision in this case added to a

growing divide over whether, in an employment discrimination

or retaliation case, the employer’s alleged motive to discriminate

or retaliate eliminates any anti-SLAPP protection that might

otherwise attach to the employer’s employment practices.3 We

took review to answer that question and to address the

application of the anti-SLAPP statute to Wilson’s related

defamation claim.

3

Compare Bonni v. St. Joseph Health System (2017) 13

Cal.App.5th 851, 861, 863–864 (basis for a retaliation claim is

the defendant’s unprotected retaliatory motive for an adverse

action, not the adverse action itself), review granted November

1, 2017, S244148; Nam v. Regents of University of California

(2016) 1 Cal.App.5th 1176, 1187–1193 (basis includes the

defendant’s retaliatory motive) with Symmonds v. Mahoney

(2019) 31 Cal.App.5th 1096, 1108 (alleged “discriminatory

motive” does not “negate[] protections that otherwise would

apply to the defendant’s conduct” under the anti-SLAPP

statute), review granted April 24, 2019, S254646; Daniel v.

Wayans (2017) 8 Cal.App.5th 367, 380 (courts should focus on

allegations of conduct, not motive, because “ ‘ “[c]auses of action

do not arise from motives; they arise from acts” ’ ”), review

granted May 10, 2017, S240704; Hunter v. CBS Broadcasting,

Inc. (2013) 221 Cal.App.4th 1510, 1520 (same); Tuszynska v.

Cunningham (2011) 199 Cal.App.4th 257, 268–269 (same); see

also San Diegans for Open Government v. San Diego State

University Research Foundation (2017) 13 Cal.App.5th 76, 104

(in a self-dealing case, concluding the underlying conduct, not

the alleged motive, is the basis), review granted August 16,

2017, S242529.

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II.

Enacted by the Legislature in 1992, the anti-SLAPP

statute is designed to protect defendants from meritless

lawsuits that might chill the exercise of their rights to speak and

petition on matters of public concern. (See § 425.16, subd. (a);

Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619;

Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180,

192.) To that end, the statute authorizes a special motion to

strike claims “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.” (§ 425.16, subd. (b)(1).)

A court evaluates an anti-SLAPP motion in two steps.

“Initially, the moving defendant bears the burden of

establishing that the challenged allegations or claims ‘aris[e]

from’ protected activity in which the defendant has engaged.

[Citations.] If the defendant carries its burden, the plaintiff

must then demonstrate its claims have at least ‘minimal

merit.’ ” (Park v. Board of Trustees of California State

University (2017) 2 Cal.5th 1057, 1061 (Park).) If the plaintiff

fails to meet that burden, the court will strike the claim. Subject

to certain exceptions not relevant here, a defendant that

prevails on a special motion to strike is entitled to attorney fees

and costs. (§ 425.16, subd. (c).)

Because the Court of Appeal determined CNN had failed

to carry its initial burden, we are here concerned only with the

first step of the analysis. The defendant’s first-step burden is to

identify the activity each challenged claim rests on and

demonstrate that that activity is protected by the anti-SLAPP

statute. A “claim may be struck only if the speech or petitioning

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Opinion of the Court by Kruger, J.

activity itself is the wrong complained of, and not just evidence

of liability or a step leading to some different act for which

liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) To

determine whether a claim arises from protected activity, courts

must “consider the elements of the challenged claim and what

actions by the defendant supply those elements and

consequently form the basis for liability.” (Id. at p. 1063.)

Courts then must evaluate whether the defendant has shown

any of these actions fall within one or more of the four categories

of “ ‘act[s]’ ” protected by the anti-SLAPP statute. (§ 425.16,

subd. (e); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29

Cal.4th 53, 66.)

CNN relies on section 425.16, subdivision (e)(4), which

protects “any other conduct in furtherance of the exercise of the

constitutional right of petition or the constitutional right of free

speech in connection with a public issue or an issue of public

interest.”4 Whether Wilson’s claims arise from activity

protected by this provision is a matter we consider de novo.

(Park, supra, 2 Cal.5th at p. 1067), evaluating the context and

content of the asserted activity (FilmOn.com Inc. v.

DoubleVerify Inc. (2019) 7 Cal.5th 133, 144–145, 149).

III.

Wilson’s intentional discrimination and retaliation claims

are the centerpiece of his complaint. To prove unlawful

discrimination, Wilson must show he was a member of a

4

The other parts of subdivision (e) shield statements and

writings made in connection with official proceedings or in

public on matters of public interest. (See § 425.16, subd. (e)(1)–

(3).)

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protected class; was performing competently in the position he

held, and suffered an adverse employment action such as

termination or demotion; and that other circumstances suggest

a discriminatory motive. (Guz v. Bechtel National, Inc. (2000)

24 Cal.4th 317, 355.)5 To prove unlawful retaliation, Wilson

must likewise show CNN subjected him to adverse employment

actions for impermissible reasons—namely, because he

exercised rights guaranteed him by law. (See Yanowitz v.

L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [retaliation

under the Fair Employment and Housing Act]; Rogers v. County

of Los Angeles (2011) 198 Cal.App.4th 480, 491 [retaliation for

taking family leave].) Finally, Wilson’s wrongful termination

claim turns on proof that Wilson was terminated and the reason

for the firing violates public policy. (Gantt v. Sentry Insurance,

supra, 1 Cal.4th at pp. 1089–1090.)6 In sum, all of Wilson’s

5

These are the elements of a disparate-treatment claim of

discrimination—that is, a claim of “intentional discrimination

against one or more persons on prohibited grounds.” (Guz v.

Bechtel National, Inc., supra, 24 Cal.4th at p. 354, fn. 20.) A

plaintiff may also raise other theories of discrimination or

harassment, each of which has different elements. (See ibid.

[recognizing disparate-impact theory of discrimination, that is,

the theory “that regardless of motive, a facially neutral

employer practice or policy, bearing no manifest relationship to

job requirements, in fact had a disproportionate adverse effect

on members of the protected class”]; Hughes v. Pair (2009) 46

Cal.4th 1035, 1043 [quid pro quo harassment]; Lyle v. Warner

Brothers Television Productions (2006) 38 Cal.4th 264, 279

[hostile work environment harassment].) Wilson does not rely

on any of those theories here.

6

The same is true of the sixth claim for declaratory relief,

which is derivative of the other five. The complaint alleges an

actual controversy as to whether CNN’s decision to terminate

Wilson was motivated by discrimination.

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Opinion of the Court by Kruger, J.

employment-related claims depend on two kinds of allegations:

(1) that CNN subjected Wilson to an adverse employment action

or actions, and (2) that it took these adverse actions for

discriminatory or retaliatory reasons. The critical threshold

question before us is whether such claims can ever be said to be

based on an “act . . . in furtherance” of speech and petitioning

rights under section 425.16, subdivisions (b)(1) and (e)(4). The

Court of Appeal answered no. We disagree.

A.

Whether it is unlawful for a person to perform a particular

action or engage in a particular activity often depends on

whether the person has a good reason for doing it—or, at least,

has no bad reason for doing it. For example, it is ordinarily

perfectly lawful for a person to possess a screwdriver, but to

possess one for the purpose of burglarizing a house is a criminal

offense. (See Pen. Code, § 466.) It is likewise lawful to file a

lawsuit—even a meritless one—but to do so for the sake of

impoverishing an enemy constitutes the tort of malicious

prosecution. (See Bertero v. National General Corp. (1974) 13

Cal.3d 43, 49–51.) The laws proscribing intentional

discrimination and retaliation in employment and other areas

belong to this category of prohibitions. It is ordinarily perfectly

permissible for an employer to decide not to hire, not to promote,

or to fire an employee. The employer may not, however, act

based on “the race, religious creed, color, national origin,” or

other protected characteristic of the employee (Gov. Code,

§ 12940, subd. (a)), or because the employee has exercised

certain rights guaranteed by law, including the right to

complain about discrimination (e.g., id., subd. (h)).

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This feature of the antidiscrimination and antiretaliation

laws has led some appellate courts, including the Court of

Appeal in this case, to conclude that discrimination and

retaliation claims fall outside the scope of the anti-SLAPP

statute. The appellate court here reasoned that because the

adverse employment actions Wilson alleged would have been

perfectly lawful in the absence of CNN’s discriminatory or

retaliatory motive, Wilson’s claims must be based on CNN’s

unprotected discrimination or retaliation—and not “the

particular manifestations of the discrimination and retaliation,

such as denying promotions, assigning him menial tasks, and

firing him.” (Wilson, supra, 6 Cal.App.5th at p. 836, rev.

granted.) On this view, it does not matter that one of these

“particular manifestations” might otherwise qualify as

protected speech or petitioning activity. If the plaintiff alleges

the defendant acted for discriminatory or retaliatory reasons,

the plaintiff’s allegation of illicit motive will defeat any

argument for anti-SLAPP protection.

This view cannot be squared with either the statutory text

or our precedent interpreting it. It is true that a cause of action

for intentional discrimination would be incomplete without

allegations of a discriminatory motive. But a cause of action for

discrimination would likewise be incomplete without allegations

of concrete adverse action. (See Guz v. Bechtel National, Inc.,

supra, 24 Cal.4th at p. 355.) For pleading purposes, both are

necessary elements; neither is privileged over the other. It

follows that even if a plaintiff’s discrimination claim can be said

to be based in part on the employer’s purported wrongful

motives, it is necessarily also based on the employer’s alleged

acts—that is, the various outward “manifestations” of the

employer’s alleged wrongful intent, such as failing to promote,

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giving unfavorable assignments, or firing. (Wilson, supra, 6

Cal.App.5th at p. 836, rev. granted; see Black’s Law Dict. (6th

ed. 1990) p. 25, col. 2 [defining “act” as the “external

manifestation of [an] actor’s will” and, more generally, as “an

effect produced in the external world by an exercise of the power

of a person objectively, prompted by intention”].) Under the first

step of the anti-SLAPP analysis, that is the end of the story, for

it is the defendant’s acts that matter. (See § 425.16, subd. (b)(1)

[protecting “any act of that person” in furtherance of particular

rights]; Park, supra, 2 Cal.5th at p. 1063 [at the first step of the

anti-SLAPP inquiry, courts must “consider the elements of the

challenged claim and what actions by the defendant supply

those elements and consequently form the basis for liability,”

italics added].) If the acts alleged in support of the plaintiff’s

claim are of the sort protected by the anti-SLAPP statute, then

anti-SLAPP protections apply.

Resisting this conclusion, Wilson contends that “the basis

of CNN’s alleged liability is not staffing or hiring for a news

position, but discriminatory treatment and actions.” But the

discriminatory treatment and actions Wilson alleges in support

of his claims are actions related to the staffing of CNN’s

newsroom. The argument thus boils down to an assertion that,

for purposes of the first step of the anti-SLAPP analysis, a court

must accept Wilson’s allegation that the challenged personnel

actions were taken for discriminatory reasons and are therefore

unlawful. (See Wilson, supra, 6 Cal.App.5th at p. 836, rev.

granted.) This is not how the anti-SLAPP statute works. In

deciding an anti-SLAPP motion, a court must at the second step

“ ‘accept as true the evidence favorable to the plaintiff.’ ”

(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,

269, fn. 3, italics added.) But we have never insisted that the

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complaint’s allegations be given similar credence in the face of

contrary evidence at the first step. Such conclusive deference

would be difficult to reconcile with the statutory admonition

that courts must look beyond the pleadings to consider any party

evidentiary submissions as well. (§ 425.16, subd. (b)(2).)

Nor does the anti-SLAPP statute require a defendant to

disprove allegations of illicit motive. At the first step of the

analysis, the defendant must make two related showings.

Comparing its statements and conduct against the statute, it

must demonstrate activity qualifying for protection. (See

§ 425.16, subd. (e).) And comparing that protected activity

against the complaint, it must also demonstrate that the activity

supplies one or more elements of a plaintiff’s claims. (Id., subd.

(b)(1); see Rand Resources, LLC v. City of Carson, supra, 6

Cal.5th at p. 620 [“A defendant satisfies the first step of the

analysis by demonstrating that the ‘conduct by which plaintiff

claims to have been injured falls within one of the four

categories described in subdivision (e) [of section 425.16]’

[citation], and that the plaintiff’s claims in fact arise from that

conduct [citation].”].) At this stage, the question is only whether

a defendant has made out a prima facie case that activity

underlying a plaintiff’s claims is statutorily protected (City of

Montebello v. Vasquez (2016) 1 Cal.5th 409, 420; Simpson

Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21), not

whether it has shown its acts are ultimately lawful.

We so held in Navellier v. Sletten (2002) 29 Cal.4th 82.

There, the plaintiffs urged that the defendant’s petitioning

activity should receive no protection because it was not a valid

exercise of speech and petitioning rights, the defendant having

previously waived the right to engage in the activity. We

disagreed. We acknowledged that the preamble to the statute

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does reflect a purpose to protect the “valid exercise” of speech

and petition rights. (§ 425.16, subd. (a).) But the Legislature’s

expression of “a concern in the statute’s preamble with lawsuits

that chill the valid exercise of First Amendment rights does not

mean that a court may read a separate proof-of-validity

requirement into the operative sections of the statute.

[Citations.] Rather, any ‘claimed illegitimacy of the defendant’s

acts is an issue which the plaintiff must raise and support in the

context of the discharge of the plaintiff’s [secondary] burden to

provide a prima facie showing of the merits of the plaintiff’s

case.’ ” (Navellier, at p. 94; see City of Montebello v. Vasquez,

supra, 1 Cal.5th at pp. 422–425 [lawfulness of activity generally

addressed in the second step].) To conclude otherwise would

effectively shift to the defendant a burden statutorily assigned

to the plaintiff. (See § 425.16, subd. (b)(1) [if acts are protected,

it is for the “plaintiff [to] establish[] that there is a probability

that the plaintiff will prevail on the claim”].)

Consistent with this understanding, at the first step of the

anti-SLAPP analysis, we routinely have examined the conduct

of defendants without relying on whatever improper motive the

plaintiff alleged. For example, in Jarrow Formulas, Inc. v.

LaMarche (2003) 31 Cal.4th 728, we considered whether claims

for malicious prosecution could be subject to an anti-SLAPP

motion. The plaintiff urged that filing an action without

probable cause was not activity in furtherance of constitutional

speech and petition rights, and so such claims should be exempt.

We rejected the argument. That the claim arose from the filing

of a lawsuit, protected First Amendment activity, was alone

dispositive; allegations that the suit was filed without probable

cause—or, for that matter, based on a malicious motive—were

irrelevant at the first step, and mattered only at the second step.

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(Id. at pp. 739–740; see Soukup v. Law Offices of Herbert Hafif,

supra, 39 Cal.4th at pp. 291–292.)

The same was true in Park. There, when considering

“what actions by the defendant supply [the] elements” of a claim

(Park, supra, 2 Cal.5th at p. 1063), we determined a

discrimination suit arose from the decision to deny the plaintiff

tenure and examined whether that decision was protected,

without reference to the alleged discriminatory motive (id. at

pp. 1071–1072). And in Rand Resources, LLC v. City of Carson,

supra, 6 Cal.5th 610, we considered whether claims for

intentional interference with contract and prospective economic

advantage arose from protected activity. The claims rested in

part on the defendants’ lobbying the city council and lobbying on

behalf of the city. These acts were lawful, considered on their

own, but alleged to be wrongful because taken with the intent to

disrupt existing and potential contractual relations. We

examined whether the acts themselves were protected, without

ever suggesting that the plaintiffs’ allegations of wrongful

motive were sufficient to remove the lobbying activity from the

statute’s aegis. (See id. at pp. 628–630.)7

7

Many courts of appeal, too, have correctly recognized that

the text of the anti-SLAPP statute and our precedent require a

court at the first step to examine the defendant’s actions without

regard to the plaintiff’s allegations about the defendant’s

motives. (Symmonds v. Mahoney, supra, 31 Cal.App.5th at

pp. 1106–1108, rev. granted; San Diegans for Open Government

v. San Diego State University Research Foundation, supra, 13

Cal.App.5th at p. 104, rev. granted; Daniel v. Wayans, supra, 8

Cal.App.5th at p. 380, rev. granted; Collier v. Harris (2015) 240

Cal.App.4th 41, 53–54; DeCambre v. Rady Children’s Hospital-

San Diego (2015) 235 Cal.App.4th 1, 22, disapproved on another

ground in Park, supra, 2 Cal.5th at p. 1070; Hunter v. CBS

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To be clear, we do not hold that a defendant’s motives are

categorically off-limits in determining whether an act qualifies

as protected activity under the anti-SLAPP statute. We hold

only that the plaintiff’s allegations cannot be dispositive of the

question. In some cases (including this one, as we explain

below), whether the defendant’s act qualifies as one in

furtherance of protected speech or petitioning will depend on

whether the defendant took the action for speech-related

reasons. Nothing in the statutory scheme prevents the

defendant from introducing evidence establishing such reasons.

But there is an important difference between permitting the

defendant to present evidence of its own motives in an effort to

make out its prima facie case of protected activity and treating

a plaintiff’s allegations of illicit motive as a bar to anti-SLAPP

protection, as Wilson would have us do here.

To conclude otherwise would effectively immunize claims

of discrimination or retaliation from anti-SLAPP scrutiny, even

though the statutory text establishes no such immunity. As

originally drafted, “[n]othing in the statute itself categorically

exclude[d] any particular type of action from its operation.”

(Navellier v. Sletten, supra, 29 Cal.4th at p. 92.) And although

subsequent amendments to the statutory scheme have added

exclusions (see Code Civ. Proc., § 425.17; Simpson Strong-Tie

Broadcasting Inc., supra, 221 Cal.App.4th at p. 1520; People ex

rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809,

823; Nesson v. Northern Inyo County Local Hospital Dist. (2012)

204 Cal.App.4th 65, 83, disapproved on another ground in Park,

supra, 2 Cal.5th at p. 1070; Tuszynska v. Cunningham, supra,

199 Cal.App.4th at pp. 268–269; Wallace v. McCubbin (2011)

196 Cal.App.4th 1169, 1186; Gallanis-Politis v. Medina (2007)

152 Cal.App.4th 600, 612–613, fn. 8.)

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Co., Inc. v. Gore, supra, 49 Cal.4th at pp. 21–22), there are none

for discrimination or retaliation actions. Nor can we infer that

failure to include such an exception was a legislative oversight.

After all, a meritless discrimination claim, like other meritless

claims, is capable of “chill[ing] the valid exercise of the

constitutional rights of freedom of speech and petition for the

redress of grievances.” (§ 425.16, subd. (a); see Ingels v.

Westwood One Broadcasting Services, Inc. (2005) 129

Cal.App.4th 1050, 1064 [upholding strike of caller’s age

discrimination claim against call-in radio talk show].)

Wilson, echoing the Court of Appeal, expresses concern

that if the plaintiff’s allegations of discriminatory motives are

not considered at the first step of the anti-SLAPP analysis,

“ ‘most, if not all, harassment, discrimination, and retaliation

cases [will be subject] to motions to strike.’ ” (Wilson, supra, 6

Cal.App.5th at p. 835, rev. granted, quoting Nam v. Regents of

University of California, supra, 1 Cal.App.5th at p. 1189.) This

result would impose substantial burdens on discrimination and

retaliation plaintiffs, who would be compelled to establish the

potential merit of their claims at an early stage of the litigation,

generally “without the benefit of discovery and with the threat

of attorney fees looming.” (Nam, at p. 1189; accord, Bonni v. St.

Joseph Health System, supra, 13 Cal.App.5th at p. 864, rev.

granted; see Wilson, at p. 835.)

The concern is overstated. We see no realistic possibility

that anti-SLAPP motions will become a routine feature of the

litigation of discrimination or retaliation claims. The anti-

SLAPP statute does not apply simply because an employer

protests that its personnel decisions followed, or were

communicated through, speech or petitioning activity. A claim

may be struck under the anti-SLAPP statute “only if the speech

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Opinion of the Court by Kruger, J.

or petitioning activity itself is the wrong complained of, and not

just evidence of liability or a step leading to some different act

for which liability is asserted.” (Park, supra, 2 Cal.5th at

p. 1060.) Put differently, to carry its burden at the first step,

the defendant in a discrimination suit must show that the

complained-of adverse action, in and of itself, is an act in

furtherance of its speech or petitioning rights. Cases that fit

that description are the exception, not the rule.

A brief survey of the case law illustrates the point. For

example, in Martin v. Inland Empire Utilities Agency (2011) 198

Cal.App.4th 611, 624–625, the court denied a government

agency’s motion to strike an employee’s discrimination claim

because the claim arose from various actions that had

culminated in the employee’s constructive discharge, even

though the complaint also mentioned statements critical of the

plaintiff’s performance. In McConnell v. Innovative Artists

Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169, 176–

177, the plaintiffs sued over the modification of their job duties

and subsequent termination in retaliation for their filing

lawsuits; that these allegedly retaliatory acts were conveyed in

writing did not render them protected. And in Department of

Fair Employment & Housing v. 1105 Alta Loma Road

Apartments, LLC (2007) 154 Cal.App.4th 1273, 1284–1285, the

plaintiff’s disability discrimination claims arose from a

landlord’s failure to accommodate a disability by giving

sufficient time to seek alternative housing, not the unlawful

detainer action the landlord filed.

In the relatively unusual case in which the discrimination

or retaliation defendant does meet its first-step burden of

showing that its challenged actions qualify as protected activity,

the burden shifts to the plaintiff. But the plaintiff’s second-step

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burden is a limited one. The plaintiff need not prove her case to

the court (Briggs v. Eden Council for Hope & Opportunity,

supra, 19 Cal.4th at p. 1123); the bar sits lower, at a

demonstration of “minimal merit” (Navellier v. Sletten, supra,

29 Cal.4th at p. 89). At this stage, “ ‘[t]he court does not weigh

evidence or resolve conflicting factual claims. Its inquiry is

limited to whether the plaintiff has stated a legally sufficient

claim and made a prima facie factual showing sufficient to

sustain a favorable judgment. It accepts the plaintiff’s evidence

as true, and evaluates the defendant’s showing only to

determine if it defeats the plaintiff’s claim as a matter of law.’ ”

(Sweetwater Union High School Dist. v. Gilbane Building Co.

(2019) 6 Cal.5th 931, 940, quoting Baral v. Schnitt (2016) 1

Cal.5th 376, 384–385; see Wilson v. Parker, Covert & Chidester

(2002) 28 Cal.4th 811, 821.)

True, in the absence of discovery, even this reduced

barrier could pose particular difficulties for discrimination and

retaliation plaintiffs, whose claims depend on assertions of

motive that are peculiarly within the defendant’s knowledge.

But “[c]ourts deciding anti-SLAPP motions . . . are empowered

to mitigate their impact by ordering, where appropriate, ‘that

specified discovery be conducted notwithstanding’ the motion’s

pendency.” (Equilon Enterprises v. Consumer Cause, Inc.,

supra, 29 Cal.4th at p. 66, quoting § 425.16, subd. (g).) A court

exercising its discretion to grant or deny a motion under section

425.16, subdivision (g) should remain mindful that the anti-

SLAPP statute was adopted to end meritless suits targeting

protected speech, “not to abort potentially meritorious claims

due to a lack of discovery.” (Sweetwater Union High School Dist.

v. Gilbane Building Co., supra, 6 Cal.5th at p. 949.) Where a

defendant relies on motive evidence in support of an anti-SLAPP

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motion, a plaintiff’s request for discovery concerning the

asserted motive may often present paradigmatic “good cause.”

(§ 425.16, subd. (g).)

With careful attention to the limited nature of a plaintiff’s

second step showing, and to granting discovery in appropriate

cases, courts can mitigate the burden of anti-SLAPP

enforcement on discrimination and retaliation plaintiffs, even if

they cannot eliminate it altogether. If the Legislature believes

the residual burden is unnecessary or excessive, it certainly can

adjust the statutory scheme, as it has before. We cannot,

however, rewrite the statute to create an exception the

Legislature has not enacted.

In sum, we conclude that for anti-SLAPP purposes

discrimination and retaliation claims arise from the adverse

actions allegedly taken, notwithstanding the plaintiff’s

allegation that the actions were taken for an improper purpose.

If conduct that supplies a necessary element of a claim is

protected, the defendant’s burden at the first step of the anti-

SLAPP analysis has been carried, regardless of any alleged

motivations that supply other elements of the claim. We

disapprove Bonni v. St. Joseph Health System, supra, 13

Cal.App.5th 851, review granted, and Nam v. Regents of

University of California, supra, 1 Cal.App.5th 1176, to the

extent they are inconsistent with this conclusion.

B.

With these principles in mind, we return to the allegations

in Wilson’s complaint. Wilson alleges a range of adverse

employment actions, but the most prominent is CNN’s decision

in January 2014 to terminate him. Expressly or implicitly,

Wilson’s firing supplies an element of the first six claims in the

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complaint. These claims thus all arise—at least in part—from

this adverse action. (See Park, supra, 2 Cal.5th 1057.) We

therefore begin by considering whether firing Wilson qualifies

as an act in furtherance of CNN’s right to free speech. (§ 425.16,

subd. (b)(1).)

CNN is a cable and Internet news organization. Its

publication of news concerning matters of public interest is an

exercise of free speech rights secured by the state and federal

Constitutions.8 CNN does not contend the termination of

Wilson’s employment is itself speech. But to insulate the

exercise of free speech rights against chilling litigation, the

Legislature has defined protected activity to include not only the

act of speaking, but “any other conduct in furtherance of the

exercise of” constitutional speech rights on matters of public

interest. (§ 425.16, subd. (e)(4).) CNN makes two arguments

for application of that provision here. First, it argues that its

selection of content producers is conduct in furtherance of its

exercise of speech rights. Second, it argues that its decision to

8

See Reno v. American Civil Liberties Union (1997) 521

U.S. 844, 870 (publication of Internet content entitled to 1st

Amend. protection); Turner Broadcasting System, Inc. v. FCC

(1994) 512 U.S. 622, 636 (“Cable programmers . . . engage in and

transmit speech, and they are entitled to the protection of the

speech and press provisions of the First Amendment”); Leathers

v. Medlock (1991) 499 U.S. 439, 444 (“Cable television provides

to its subscribers news, information, and entertainment. It is

engaged in ‘speech’ under the First Amendment, and is, in much

of its operation, part of the ‘press.’ ”); Park, supra, 2 Cal.5th at

page 1071 (“The reporting of news, whether in print or on air, is

constitutionally protected free speech.”); California

Constitution, article I, section 2, subdivision (a) (“Every person

may freely speak, write and publish his or her sentiments on all

subjects . . . .”).

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enforce its journalistic standards by terminating a writer for

alleged plagiarism constitutes conduct in furtherance of

protected activity.

The anti-SLAPP statute provides no explicit guidance for

evaluating these arguments. Section 425.16, subdivision (e)(4),

does not define precisely how, or to what extent, conduct must

further the exercise of speech or petition rights to merit

protection. At a minimum, the subdivision shields expressive

conduct—the burning of flags, the wearing of armbands, and the

like—that, although not a “written or oral statement or writing”

(§ 425.16, subd. (e)(1)–(3)), may similarly communicate views

regarding “matters of public significance” (id., subd. (a)). (See,

e.g., Texas v. Johnson (1989) 491 U.S. 397, 404–406 [flag

burning]; Tinker v. Des Moines School Dist. (1969) 393 U.S. 503,

505–506 [armbands].) Indeed, the legislative history suggests

expressive conduct was foremost in the Legislature’s thinking

when subdivision (e)(4) was added.9 But the text’s reference to

9

The provision was inserted in 1997, five years after

original enactment of the anti-SLAPP statute. The committee

reports are uniform in describing the motivation for the

provision. Proponents asserted “that the constitutional right of

free speech and petition also includes constitutionally protected

expressive conduct.” (Sen. Com. on Judiciary, Analysis of Sen.

Bill No. 1296 (1997–1998 Reg. Sess.) as amended May 12, 1997,

p. 4; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading

analysis of Sen. Bill No. 1296 (1997–1998 Reg. Sess.) as

amended June 23, 1997, p. 4.) The Legislature agreed and

sought to codify the principle that expressive conduct, like

expressive speech, is protected activity. (See, e.g., Sen. Com. on

Judiciary, Analysis of Sen. Bill No. 1296, supra, pp. 3–4; Sen.

Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of

Sen. Bill No. 1296, supra, p. 4; Assem. Com. on Judiciary,

Analysis of Sen. Bill No. 1296 (1997–1998 Reg. Sess.) as

amended May 12, 1997, p. 4.)

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acts “in furtherance” of speech or petitioning rights can also

reasonably be read to extend to at least certain conduct that,

though itself containing no expressive elements, facilitates

expression.

A news organization’s hiring or firing of employees—like

virtually everything a news organization does—facilitates the

organization’s speech to some degree. But it does not follow that

everything the news organization does qualifies as protected

activity under the anti-SLAPP statute. The First Amendment

does not immunize news organizations from laws of general

applicability “simply because their enforcement . . . has

incidental effects on [the press’s] ability to gather and report the

news.” (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 669.)

We likewise do not read the anti-SLAPP statute to call for

preliminary screening of every claim that might be brought

against a news organization, merely because the claim might

have incidental effects on the organization’s operation. The

question we must consider is whether, and when, a news

organization’s selection of its employees bears a sufficiently

substantial relationship to the organization’s ability to speak on

matters of public concern to qualify as conduct in furtherance of

constitutional speech rights.

1.

We begin with the first, and broader, of CNN’s two

arguments: that its decisions to hire or fire writers and other

content producers categorically qualify as conduct in

furtherance of its speech rights. The argument rests on two

basic propositions. One, the right of a news organization to

speak includes the right to exercise editorial control and

judgment—that is, the right to choose what news it will report

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and how the news will be reported. (Miami Herald Publishing

Co. v. Tornillo (1974) 418 U.S. 241, 258.) And two, an entity can

act and speak only through the individuals that comprise and

represent it. The law thus recognizes that, to exercise certain

First Amendment freedoms, such as the right of free exercise of

religion, an entity “must retain the corollary right to select its

voice.” (Petruska v. Gannon University (3d Cir. 2006) 462 F.3d

294, 306; see ibid. [ministerial exception to federal employment

discrimination law]; accord, Hosanna-Tabor Evangelical

Lutheran Church and School v. EEOC (2012) 565 U.S. 171, 185

[“it is impermissible for the government to contradict a church’s

determination of who can act as its ministers”].)

But in the area of press freedoms, it has long been

established that the First Amendment does not guarantee a

news organization absolute control over who may write, report,

or even edit on its behalf. (Associated Press v. Labor Board

(1937) 301 U.S. 103, 130–133 (Associated Press).) In Associated

Press, the National Labor Relations Board (NLRB) charged the

respondent news organization with unlawfully discharging an

editorial employee for engaging in union activity and ordered

the employee reinstated. Challenging the NLRB’s order on First

Amendment grounds, the news organization urged that

“whatever may be the case with respect to employees in its

mechanical departments it must have absolute and unrestricted

freedom to employ and to discharge those who . . . edit the

news.” (Id. at p. 131.) The Supreme Court rejected this as an

“unsound generalization” (ibid.), noting that the constitutional

guarantees of free speech and a free press afford “[t]he publisher

of a newspaper . . . no special immunity from the application of

general laws” (id. at p. 132; see Pittsburgh Press Co. v. Human

Rel. Comm’n (1973) 413 U.S. 376, 382–383; Shulman v. Group

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W Productions, Inc. (1998) 18 Cal.4th 200, 239). Regulation of

the press’s labor practices was permissible, provided it left

untrammeled “the full freedom and liberty of the petitioner to

publish the news as it desires it published or to enforce policies

of its own choosing with respect to the editing and rewriting of

news for publication.” (Associated Press, at p. 133.)

Courts in various contexts have applied these principles to

distinguish between permissible regulation and

unconstitutional interference with a newspaper’s editorial

judgment. In Passaic Daily News v. N.L.R.B. (D.C. Cir. 1984)

736 F.2d 1543, 1549, for example, the court held that the NLRB

could order the reinstatement of a newspaper columnist

unlawfully discharged for engaging in union activity, though it

drew the line at compulsory future publication of his weekly

column. In McDermott v. Ampersand Pub., LLC (9th Cir. 2010)

593 F.3d 950, in contrast, the court invalidated an NLRB order

requiring reinstatement of news reporters and editors, but it did

so because these individuals had been discharged for “union

activity directed at pressuring the newspaper’s owner and

publisher to refrain from exercising editorial control over news

reporting”; the court explained that under the circumstances,

relief “in support of union activity aimed at obtaining editorial

control poses a threat of violating” the newspaper’s First

Amendment editorial rights. (Id. at p. 953; but see id. at

pp. 968–971 (dis. opn. of Hawkins, J.) [injunction ordering

reinstatement does not risk 1st Amend. infringement].) In

Nelson v. McClatchy Newspapers (Wn. 1997) 936 P.2d 1123, the

Washington Supreme Court held that the First Amendment

partially invalidated a statute prohibiting discrimination

against employees for political participation because, in its

judgment, the nature of the regulation directly interfered with

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the plaintiff newspaper’s ability to maintain journalistic

integrity and credibility by restricting its employees’ political

activism. (Id. at p. 1133; but see id. at p. 1133 (dis. opn. of

Dolliver, J.) [“The First Amendment does not give a newspaper

immunity from general laws absent a showing of interference

with the newspaper’s right to determine what to print.”].)10

The considerations raised in these cases differ, but the

bottom line is this: Not every staffing decision a news

organization makes—even with respect to those who write, edit,

or otherwise produce content—enjoys constitutional protection.

As a general rule, application of laws prohibiting racial and

other forms of discrimination will leave the organization with

“the full freedom and liberty” to “publish the news as it desires

it published.” (Associated Press, supra, 301 U.S. at p. 133.) It

follows that, also as a general rule, a legal challenge to a

particular staffing decision will have no substantial effect on the

news organization’s ability to speak on public issues, which is

the anti-SLAPP statute’s concern.

Like most general rules, this one does admit of exceptions.

Indeed, Wilson himself acknowledges that in some instances a

news organization’s hiring decisions could qualify as conduct in

furtherance of the organization’s constitutionally protected

speech on matters of public interest. He agrees, for example,

10

As another example, in Hausch v. Donrey of Nevada, Inc.

(D.Nev. 1993) 833 F.Supp. 822, 832, the federal district court

rejected a newspaper’s First Amendment defense to the

employment discrimination claim of a managing editor based on

failure to promote her to the position of editor, reasoning that

the application of antidiscrimination laws did not burden the

newspaper’s “ability to control the content and character of their

newspaper’s message.”

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that a television producer’s decision about whom to cast in a

program can constitute part of the message conveyed, thus

meriting anti-SLAPP protection. (Cf. Hunter v. CBS

Broadcasting Inc., supra, 221 Cal.App.4th at p. 1527 [holding

that choice of on-air employee to speak on behalf of news

organization furthers organization’s exercise of speech rights].)

Likewise, the decision to hire or fire an employee who is vested

with ultimate authority to determine a news organization’s

message might well have a substantial effect on the

organization’s ability to speak as it chooses on matters of public

concern. Lawsuits directed at influencing the selection of

individuals who wield that type of ultimate authority could chill

participation in the discussion of public issues, as surely as suits

targeting the act of speaking itself. But not so with other

employees in a newsroom who may contribute to, but lack

ultimate say over, their employer’s speech. (See Manson v.

Little Rock Newspapers, Inc. (E.D.Ark. 1999) 42 F.Supp.2d 856,

865 [“A reporter has no free-standing First Amendment right to

have her articles published by a privately-owned newspaper for

which she works.”].) Suits over the hiring and firing of such

employees—without more—pose no comparable threat to the

exercise of editorial discretion.

As the movant, CNN has the burden of showing Wilson’s

role bore such a relationship to its exercise of editorial control

as to warrant protection under the anti-SLAPP statute. CNN

has failed to make that showing. CNN does not contend that as

a field producer Wilson had authority to decide what CNN would

air. Instead, CNN relies solely on Wilson’s part-time role as a

writer for its website, a comparatively minor part of his duties.

But CNN does not demonstrate that Wilson, in his capacity as a

writer, had authority to determine what would appear on CNN’s

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website. Indeed, the facts of this case demonstrate the contrary.

Wilson’s work was vetted and reviewed by others who did have

editorial power, and who decided whether his work should—or

in the case of the Baca story, should not—be published by CNN.

As far as the record shows, Wilson was one of countless

employees whose work contributes to what a large news

organization like CNN says about the issues of the day, but was

not among those who appear on-air to speak for the organization

or exercise authority behind the scenes to determine CNN’s

message. CNN’s decisions concerning which assignments to

give Wilson and whether to continue employing him, without

more, had no substantial relationship to CNN’s ability to speak

on matters of public concern. It follows that a claim based on

these decisions, without more, falls outside the reach of the anti-

SLAPP statute.

2.

CNN’s second, and narrower, argument focuses on its

specific asserted reason for terminating Wilson—his alleged

plagiarism—rather than his general role as a content producer.

In support of its motion, CNN submitted numerous declarations

attesting that it became aware of possible plagiarism by Wilson,

investigated the possibility, and elected to terminate Wilson

based on its findings. CNN’s declarations also detail CNN’s

prohibition against plagiarism, its policy of sanctioning

employees who engage in plagiarism, and the editorial controls

CNN has in place to ensure plagiarism will not occur.

Wilson acknowledges his termination followed an

investigation into plagiarism, though he disputes CNN’s

conclusions and claims the plagiarism rationale was pretextual.

We need not, however, determine whether Wilson plagiarized,

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or whether any plagiarism was a true motive for his

termination. The question is only whether CNN has made out

a prima facie case that activity underlying Wilson’s claims is

protected. (City of Montebello v. Vasquez, supra, 1 Cal.5th at

p. 420; Simpson Strong-Tie Co., Inc. v. Gore, supra, 49 Cal.4th

at p. 21.)

CNN’s plagiarism rationale for terminating Wilson evokes

a line of cases concerning the right of news organizations to

maintain and enforce standards of journalistic ethics. In

Newspaper Guild, etc. v. N.L.R.B. (D.C. Cir. 1980) 636 F.2d 550

(Newspaper Guild), the D.C. Circuit held that a newspaper’s

code of ethics—unlike other terms of employment—is not the

proper subject of mandatory collective bargaining. It explained:

“[P]rotection of the editorial integrity of a newspaper lies at the

core of publishing control. In a very real sense, that

characteristic is to a newspaper or magazine what machinery is

to a manufacturer. At least with respect to most news

publications, credibility is central to their ultimate product and

to the conduct of the enterprise. . . . [¶] . . . [A] news publication

must be free to establish[,] without interference, reasonable

rules designed to prevent its employees from engaging in

activities which may directly compromise their standing as

responsible journalists and that of the publication for which

they work as a medium of integrity.” (Id. at pp. 560–561, fns.

omitted.) The Washington Supreme Court would later draw on

this reasoning to invalidate the state’s political participation

law as applied to a newspaper that had adopted rules against

employees’ political activism. (Nelson v. McClatchy

Newspapers, supra, 936 P.2d at pp. 1131–1132.) “Editorial

integrity and credibility,” it held, “are core objectives of editorial

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control and thus merit protection under the free press clauses.”

(Id. at p. 1131.)

We need not precisely delineate the reach of the relevant

constitutional principles here. (City of Montebello v. Vasquez,

supra, 1 Cal.5th at pp. 421–422.) The only question before us is

whether, as CNN argues, its decision to terminate Wilson for

plagiarism was conduct “in furtherance of” the organization’s

speech rights within the meaning of section 425.16, subdivisions

(b)(1) and (e). We conclude it was.

Online and on air, CNN covers myriad “matters of public

significance.” (§ 425.16, subd. (a).) Its broadcasts and

publications include extensive “speech in connection with a

public issue or an issue of public interest.” (Id., § sub. (e)(4).)

CNN presented evidence tending to show that its ability to

participate meaningfully in public discourse on these subjects

depends on its integrity and credibility. Plagiarism is

universally recognized as a serious breach of journalistic ethics.

Disciplining an employee for violating such ethical standards

furthers a news organization’s exercise of editorial control to

ensure the organization’s reputation, and the credibility of what

it chooses to publish or broadcast, is preserved. These objectives

lie “at the core” of the press function. (Newspaper Guild, supra,

636 F.2d at p. 560; see id. at p. 561.) CNN has made out a prima

facie case that its staffing decision was based on such

considerations, and that such decisions protect the ability of a

news organization to contribute credibly to the discussion of

public matters. The staffing decision thus qualifies as “conduct

in furtherance” of CNN’s “speech in connection with” public

matter. (§ 425.16, subd. (e)(4).)

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But CNN’s invocation of journalistic ethics only takes it so

far. The lone act CNN justifies as motivated by the need to

enforce editorial standards forbidding plagiarism is its

termination of Wilson. CNN’s own evidence demonstrates that

it was unaware of any potential plagiarism until a few weeks

before Wilson was let go. CNN has thus carried its first-step

burden only insofar as Wilson’s employment-related claims

arise from his termination. To the extent Wilson’s causes of

action include claims of illegal discrimination and retaliation

based on other acts—passing him over for promotions, menial

assignments, and so on—these causes of action will survive,

even if the termination-specific claims are stricken. (See Baral

v. Schnitt, supra, 1 Cal.5th at pp. 393–394 [anti-SLAPP motions

target only those claims within a cause of action that rest on

protected activity].)

Because the Court of Appeal concluded CNN had wholly

failed to meet its first-step burden, it did not address whether

Wilson’s termination claims must be stricken, or whether they

instead have the requisite minimal merit to proceed. We

remand on these claims so the Court of Appeal may address that

issue in the first instance.

IV.

We turn next to Wilson’s defamation claim. According to

the complaint, CNN told third parties, including prospective

employers, that Wilson “had plagiarized . . . passages in the

Baca story and thereby violated CNN standards and

practices.”11 Wilson’s declaration also describes a statement by

11

Wilson’s complaint alleges the statements to those outside

the company on information and belief. No contextual details

are provided.

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a CNN human resources manager, at a meeting with Wilson and

Wilson’s supervisor, defendant Peter Janos, that Wilson had

plagiarized. Wilson and CNN disagree over whether these

statements were “conduct in furtherance of the exercise of [free

speech rights] in connection with a public issue or an issue of

public interest.” (§ 425.16, subd. (e)(4).) We conclude they were

not.

A.

In contrast to Wilson’s employment-related claims,

Wilson’s defamation claim is based on CNN’s speech rather than

any tangible action. A casual reader of the anti-SLAPP statute

might wonder whether this makes a difference, since unlike the

other provisions of subdivision (e) of section 425.16, subdivision

(e)(4) refers to “conduct,” not “statement[s].” But courts

(including this one) have generally assumed that this reference

to “conduct” includes oral or written statements,12 and a closer

reading of the statute reveals why the assumption is correct.

The reason is straightforward: Section 425.16,

subdivision (e)(1), (2), and (3), each describe circumstances in

which a “written or oral statement or writing” is eligible for

protection as an “act” in furtherance of speech or petitioning

rights—when the statement is made before an official

proceeding, made in a public place on a public issue, and so on.

Subdivision (e)(4) extends protection to “any other conduct” that

12

See, e.g., FilmOn.com Inc. v. DoubleVerify Inc., supra, 7

Cal.5th at p. 149 (applying § 425.16, subd. (e)(4) to statements);

Rand Resources, LLC v. City of Carson, supra, 6 Cal.5th at

pp. 621–628 (same); McGarry v. University of San Diego (2007)

154 Cal.App.4th 97, 109–111 (same); Vogel v. Felice (2005) 127

Cal.App.4th 1006, 1015 (same); Wilbanks v. Wolk (2004) 121

Cal.App.4th 883, 897–898 (same).

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meets the requirements specified in that subdivision. Even

though the word “conduct” is often used, particularly in the First

Amendment context, in contradistinction to “speech,” the use of

the phrase “other conduct” (ibid., italics added) indicates the

Legislature regarded the acts of speaking or writing identified

in the preceding provisions as “conduct” too. It follows that

“conduct” in subdivision (e)(4) is intended to embrace speech, as

well as tangible action. To the extent there is any doubt, we

construe the statute broadly to achieve its purposes. (§ 425.16,

subd. (a).)

The harder question concerns precisely what kinds of

speech are covered by subdivision (e)(4). Unlike its neighboring

subdivisions—which define protected conduct “not only by its

content, but also by its location, its audience, and its timing”

(FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at

p. 143)—the “catchall” provision of subdivision (e)(4) contains

“no similar contextual references to help courts discern the type

of conduct and speech to protect” (id. at p. 144). But when a

general provision follows specific examples, as subdivision (e)(4)

follows subdivision (e)(1) through (e)(3), we generally

understand that provision as “ ‘ “restricted to those things that

are similar to those which are enumerated specifically.” ’ ”

(Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725,

743; accord, FilmOn.com Inc., at p. 144.)

The common thread that runs through subdivision (e)(1)

through (e)(3) is that each provision protects speech that

contributes to the public discussion or resolution of public

issues—a thread that also ties these provisions together with

the statute’s stated purpose of furthering “continued

participation in matters of public significance.” (§ 425.16,

subd. (a).) It follows that a defendant who claims its speech was

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WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

protected as “conduct in furtherance of the exercise of [free

speech rights] in connection with a public issue or an issue of

public interest” (id., subd. (e)(4)) must show not only that its

speech referred to an issue of public interest, but also that its

speech contributed to public discussion or resolution of the issue

(see FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at

pp. 150–152; City of Industry v. City of Fillmore (2011) 198

Cal.App.4th 191, 217–218; Wilbanks v. Wolk, supra, 121

Cal.App.4th at p. 898).

B.

CNN argues its statements were in connection with three

issues of public significance: Los Angeles County Sheriff Lee

Baca’s retirement, Wilson’s plagiarism, and the general subject

of journalistic ethics. Considering each in turn, we conclude

Wilson’s defamation claim does not arise from speech on “a

public issue or an issue of public interest” (§ 425.16, subd. (e)(4))

that contributed to public discussion of that issue.

Sheriff Baca’s retirement was indeed a matter of public

interest.13 But Wilson’s claim does not rest on statements CNN

13

The sudden, unexpected retirement of a public official

(Mather & Sewell, Sheriff Lee Baca’s retirement: ‘Very shocking

and very surprising,’ L.A. Times (Jan. 7, 2014)

<https://www.latimes.com/local/lanow/la-xpm-2014-jan-07-la-

me-ln-sheriffs-bacas-retirement-very-shocking-and-very-

surprising-20140107-story.html> [as of July 22, 2019]), who

later was convicted of obstructing the FBI investigation into

inmate abuse in county jails (Stevens, Ex-Los Angeles Sheriff

Lee Baca Is Sentenced to 3 Years in Prison, N.Y. Times (May 12,

2017) <https://www.nytimes.com/2017/05/12/us/lee-baca-los-

angeles-county-sheriff-sentenced-prison.html> [as of July 22,

2019]), was a chapter in an ongoing scandal that implicated

public concerns such as government misfeasance and prison

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WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

made about that subject; it rests instead on statements about

the reason for Wilson’s termination. The story Wilson wrote

could have been about some other topic entirely—the state of

global financial markets, gardening tips, or anything else under

the sun—and his defamation claim would be the same. CNN’s

alleged statements, although they tangentially referenced

Sheriff Baca’s retirement, did not contribute to any public, or

even private, discussion of that subject. It follows that the

defamation claim does not arise from statements made “in

connection with” any public issue related to Sheriff Baca’s

retirement. (§ 425.16, subd. (e)(4).)

CNN contends the actual subject of its statement, Wilson’s

professional competence and the reasons for his termination, is

also an issue of public interest. But not every employment

dispute—even at a prominent news organization—is a matter of

public significance. Certainly some individuals may be so

prominent, or in such a prominent position, that any discussion

of them concerns a matter of public interest. (See McGarry v.

University of San Diego, supra, 154 Cal.App.4th at p. 110.) But

absent unusual circumstances, a garden-variety employment

dispute concerning a nonpublic figure will implicate no public

issue. (See, e.g., Baughn v. Department of Forestry & Fire

Protection (2016) 246 Cal.App.4th 328, 337–339; Albanese v.

Menounos (2013) 218 Cal.App.4th 923, 934–937; Carpenter v.

Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 472; Olaes v.

Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1510–

1511; Du Charme v. International Brotherhood of Electrical

reform. All Internet citations in this opinion are archived by

year, docket number, and case name at

<https://www.courts.ca.gov/38324.htm>.

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WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

Workers (2003) 110 Cal.App.4th 107, 113–119; Rivero v.

American Federation of State, County and Municipal

Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919–929.)

Workplace misconduct “below some threshold level of

significance is not an issue of public interest, even though it

implicates a public policy.” (Rivero, at p. 924.)

Based on the evidence CNN presented in support of its

motion, Wilson is not a figure so prominently in the public eye

that any remark about him would qualify as speech on a matter

of public concern. CNN cites as proof of Wilson’s prominence the

numerous stories Wilson’s lawsuit and the Court of Appeal

decision generated. This reliance is unavailing: “[T]hose

charged with defamation cannot, by their own conduct, create

their own defense by making the claimant a public figure.”

(Hutchinson v. Proxmire (1979) 443 U.S. 111, 135.) Nor does

Wilson’s own evidence of his awards make him a person of such

notoriety that a statement about the reason for his termination

would necessarily concern an issue of public interest (cf.

McGarry v. University of San Diego, supra, 154 Cal.App.4th at

p. 110 [reasons for dismissing prominent university football

coach of public interest]).

CNN argues the Court of Appeal erred by making Wilson’s

status as a figure in the public eye a necessary component of any

showing that CNN’s statement about him was protected

activity. But the Court of Appeal did no such thing. Rather, the

court held that if Wilson were a figure in the public eye, that

status could be a sufficient basis to conclude statements about

him would be on a matter of public interest. (Wilson, supra, 6

Cal.App.5th at pp. 832–833, rev. granted.) Other grounds might

also have justified that conclusion even if Wilson were not well-

known. (Ibid.) We hold likewise: that a statement is about a

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WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

person or entity in the public eye may be sufficient, but is not

necessary, to establish the statement is “free speech in

connection with a public issue or an issue of public interest.”

(§ 425.16, subd. (e)(4); see FilmOn.com Inc. v. DoubleVerify Inc.,

supra, 7 Cal.5th at pp. 145–146; Rand Resources, LLC v. City of

Carson, supra, 6 Cal.5th at p. 621.)

CNN’s final argument is that, even if Wilson is not a figure

in the public eye, discussion of his termination implicates a

larger issue that indisputably is of public interest—journalistic

ethics. This argument rests on “what might be called the

synecdoche theory of public issue in the anti-SLAPP statute”

(Commonwealth Energy Corp. v. Investor Data Exchange, Inc.

(2003) 110 Cal.App.4th 26, 34): that the discussion of a

purported lapse on the part of one of its writers is equivalent to

a conversation about the ethical lapses of all journalists

everywhere. But for anti-SLAPP purposes, as courts have long

recognized, “[t]he part is not synonymous with the greater

whole.” (Ibid.) Contrary to arguments that various defendants

have pressed over the years, “[s]elling an herbal breast

enlargement product is not a disquisition on alternative

medicine. Lying about the supervisor of eight union workers is

not singing one of those old Pete Seeger union songs (e.g., ‘There

Once Was a Union Maid’). And . . . hawking an investigatory

service is not an economics lecture on the importance of

information for efficient markets.” (Ibid.; accord, FilmOn.com

Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at p. 152; Consumer

Justice Center v. Trimedica International, Inc. (2003) 107

Cal.App.4th 595, 601; Rivero v. American Federation of State,

County and Municipal Employees, AFL-CIO, supra, 105

Cal.App.4th at pp. 919, 924.)

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WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

Similarly, here, CNN’s alleged statements about an

isolated plagiarism incident did not contribute to public debate

about when authors may or may not borrow without attribution.

“What a court scrutinizing the nature of speech in the anti-

SLAPP context must focus on is the speech at hand, rather than

the prospects that such speech may conceivably have indirect

consequences for an issue of public concern.” (Rand Resources,

LLC v. City of Carson, supra, 6 Cal.5th at p. 625; see Consumer

Justice Center v. Trimedica International, Inc., supra, 107

Cal.App.4th at p. 601 [“If we were to accept [defendant’s]

argument that we should examine the nature of the speech in

terms of generalities instead of specifics, then nearly any claim

could be sufficiently abstracted to fall within the anti-SLAPP

statute”].) To sweep in a claim about falsehoods made regarding

a nonpublic figure, where the falsehoods do not contribute in any

meaningful way to discussion or resolution of an ongoing matter

of public significance, would do nothing to advance the statute’s

stated purpose of shielding defendants from meritless lawsuits

designed to chill speech and petitioning on matters of public

interest or controversy. (See § 425.16, subd. (a).)

Relevant, too, is the private context of the alleged

statements. Granted, private communications may qualify as

protected activity in some circumstances. (FilmOn.com Inc. v.

DoubleVerify Inc., supra, 7 Cal.5th at p. 146; Navellier v. Sletten,

supra, 29 Cal.4th at p. 91.) But the private context eliminates

any possibility of protection under section 425.16, subdivision

(e)(3), for example, and here makes heavier CNN’s burden of

showing that, notwithstanding the private context, the alleged

statements nevertheless contributed to discussion or resolution

of a public issue for purposes of subdivision (e)(4). (See

FilmOn.com Inc., at pp. 146, 150–151.)

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WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

This case does not resemble other cases in which speech

concerning the actions of individual nonpublic figures has been

held to contribute to ongoing debate on a public controversy. For

example, in Taus v. Loftus (2007) 40 Cal.4th 683, 712–713, we

considered the case of two scholars who had investigated a

claimed instance of repressed memory recovery and who had

published and lectured on the case study to urge caution in

acceptance of such memories. We had no difficulty concluding

the scholars’ speech concerning the lessons they drew from their

case study was entitled to anti-SLAPP protection; the speech

contributed to discussion of a matter of ongoing public debate.

Similarly, the Court of Appeal in M. G. v. Time Warner, Inc.

(2001) 89 Cal.App.4th 623 held that a magazine article and

television program addressing “the general topic of child

molestation in youth sports,” a significant public issue, were

protected, even though the article and program illustrated their

discussion with examples of specific instances of misconduct.

(Id. at p. 629.) No comparable connection between Wilson’s

alleged misconduct and any public issue is present here.

For these reasons, we conclude CNN’s privately

communicated statements about Wilson’s purported violation of

journalistic ethics do not constitute “conduct in furtherance of

. . . the constitutional right of free speech in connection with a

public issue or an issue of public interest.” (§ 425.16,

subd. (e)(4).)

V.

CNN has failed to carry its first-step burden with respect

to many of Wilson’s claims, but it has met that burden with

respect to those claims based on the termination of his

employment. CNN is therefore entitled to preliminary

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WILSON v. CABLE NEWS NETWORK, INC.

Opinion of the Court by Kruger, J.

screening of those claims to determine whether they have

minimal merit. We affirm the Court of Appeal’s judgment in

part, reverse in part, and remand for further proceedings not

inconsistent with this opinion.

KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

39

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Wilson v. Cable News Network, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 6 Cal.App.5th 822

Rehearing Granted

__________________________________________________________________________________

Opinion No. S239686

Date Filed: July 22, 2019

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Mel Red Recana

__________________________________________________________________________________

Counsel:

Law Offices of Lisa L. Maki, Lisa L. Maki, Jennifer Ostertag; Shegerian & Associates, Jill P. McDonnell

and Carney R. Shegerian for Plaintiff and Appellant.

FEM Law Group and F. Edie Mermelstein for Consumer Attorneys of California as Amicus Curiae on

behalf of Plaintiff and Appellant.

Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for California Taxpayers Action Network as

Amicus Curiae on behalf of Plaintiff and Appellant.

Mitchell Silberberg & Knupp, Adam Levin, Aaron M. Wais, Jolene Konnersman and Christopher A. Elliott

for Defendants and Respondents.

Davis Wright Tremaine, Kelli L. Sager, Rochelle Wilcox and Dan Laidman for Los Angeles Times

Communications LLP, CBS Corporation, NBCUniversal Media, LLC, American Broadcasting Companies,

Inc., Fox Networks Group, Inc., California News Publishers Association and First Amendment Coalition as

Amici Curiae on behalf of Defendants and Respondents.

Horvitz & Levy, Jeremy B. Rosen, Felix Shafir and Ryan C. Chapman for California Hospital Association

as Amicus Curiae on behalf of Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jill P. McDonnell

Shegerian & Associates

225 Santa Monica Boulevard, Suite 700

Santa Monica, CA 90401

(310) 860-0770

Adam Levin

Mitchell Silberberg & Knupp

2049 Century Park East, 18th Floor

Los Angeles, CA 90067

(310) 312-2000