I'm glad that the Court of Appeal decided to publish this opinion.
Because it's often good to get erroneous holdings out in the open. Including this one.
I understand where the Court of Appeal is coming from. But I think the decision is nonetheless clearly wrong. Both doctrinally and as a matter of policy.
It's a straightforward issue: Does the anti-SLAPP statute apply when CBS allegedly discriminates against an old, not-very-attractive white guy by refusing to hire him as an on-air weather news anchor because it instead wanted young, quite-attractive women?
Let me just say at the outset that I find it immensely plausible that a news station would, in fact, refuse to hire old, fat white guys in favor of young, hot women for this particular job. I'm, indeed, exceptionally confident that this happens. Pretext notwithstanding.
But the issue is whether such alleged discrimination is an act in furtherance of the new station's right to free speech. The Court of Appeal thinks it is. Hence the old guy's got to prove his discrimination case at the outset, and is liable for attorney's fees if he fails.
I think that's clearly wrong.
Just because you're running a news station doesn't mean that everything you do -- including discriminating (allegedly) against various protected groups -- entails conduct "in furtherance" of your right to free speech. The present case is a perfect example. 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. The usual rules instead apply.
Were I on the California Supreme Court, I'd take this one up. It's pure error correction, to be sure. But it's sufficiently wrong -- and sufficiently pernicious -- that it's worth correcting the Court of Appeal.
It's a forthright, and sensibly motivated, opinion. But it's nonetheless still wrong.
