Okay, maybe it's not legally actionable age discrimination for someone -- here, talk show host Tom Leykis -- to refuse to allow someone to call in to his radio show on the ground the caller is simply too old to possibly have anything relevant to say. Or at least that's what Justice Hastings holds in this case. And I guess that's indeed the law. Or at least Justice Hastings makes a plausible case for such a result. (Though I have to admit that I have some very slight reservations about the holding.)
Regardless of the merits, however, what an incredibly, incredibly lame and bogus thing for someone to do: to believe that old people have nothing valuable to say and to exclude them from participation and engaging in free speech on that basis. How lame. The first five pages of the opinion provide a transcript of what Leykis said on the air, which was basically telling plaintiff that he didn't want to talk to him because he was too old. Leykis' sentiment was captured by what he said to the plaintiff -- on the air -- right before hanging up on him: "I don't really care how smart you are, Pal. You know what, we have a targeted demographic on this program; you don't fit it, period. You're way too old, Pops. You don't belong on the air. Call a big band station. Call somebody else, please. Don't call here."
I've never listened to Leykis' show; indeed, I had never even heard of the guy before reading this opinion. His show is apparently somewhat popular, and his views about the elderly appears to be consistent with his views about other disadvantaged groups. (The home page of his web site, for example, currently highlights a close-up picture of a woman's buttocks and a shirtless woman having her breasts autographed by Leykis. Several other photos on the site reflect Leykis autographing other female body parts, women engaging in mock fellatio with a variety of objects, and simulated lesbian scenes. Classy.)
What's unfortunate about the opinion is that because it was decided on an anti-SLAPP motion, plaintiff is forced to pay Leykis' attorney's fees. Which doesn't seem right. This is, at a minimum, a close case, and one that is itself infected with a public interest. It's one of a few cases that make me think that the anti-SLAPP provisions sometimes go overboard, and that they should perhaps have an exception for cases that are themselves public interest disputes: perhaps an exception similar in form to the new exception in Section 425.17 for certain class action and other litigation. It doesn't seem right to me that the plaintiff -- who's largely trying to combat systemic (and express) discrimination -- will end up having to pay tens of thousands of dollars for his efforts. That just doesn't feel like justice. To me, anyway.
