Free Speech Issues

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The following was written collectively by our Labor & Employment Department.

A. Anti-SLAPP (Strategic Litigation Against Public Policy)Law, Code of Civil Procedure § 425.16

1. Anti-SLAPP Statute Does Not Provide a Safe-Harbor Against Employee FEHA Lawsuits, Even if the Claims Arise Partially from Employer’s Protected Conduct

In Nam v. Regents of the University of California, 1 Cal.App.5th 1176, 1193 (2016), a resident in the anesthesiology department at UC Davis Medical Center brought a lawsuit claiming sexual harassment and retaliation against her employer. The resident accused her residency program director of sexual harassment, alleging that after she rebuffed his advances, he retaliated against her by, among other things, issuing an unwarranted disciplinary letter and placing her on investigatory leave. The resident further alleged that she was retaliated against because she complained about the clinical behavior of another doctor and serious patient care and safety issues.

According to the Medical Center, the resident was terminated after numerous complaints about her performance and multiple complaints given by her fellow residents with regard to her use of either verbally or physically threatening behavior. The resident was placed on leave two separate times while the complaints against her were investigated.

The Medical Center brought an anti-SLAPP motion to strike the resident’s complaint, contending that her lawsuit arose from conduct protected under the anti-SLAPP statute because the investigation into allegations against her was an “official proceeding authorized by law.” The trial court held that the “adverse actions” alleged in the Complaint were not taken as a result of complaints regarding her performance or the investigations, but rather due to her rebuffing advances made by the residency program director and complaints she made regarding patient care. Accordingly, the Medical Center failed to satisfy its initial burden of demonstrating that the resident’s action “arose from a protected activity.”

The California Court of Appeal affirmed the trial court, agreeing that the alleged wrongdoing did not arise out of protected conduct and additionally reasoned that granting the motion would go against the purpose of the anti-SLAPP statute because it would allow any employer that initiates an investigation of an employee to claim that its conduct was protected and shift the burden of proof to the employee.

2. Complaint Stricken Where the Employer’s Protected Conduct is Central, Not Incidental, to Plaintiff’s Claimed Injuries

In Daniel v. Wayans, 8 Cal.App.5th 367 (2017), an extra in the film Haunted House 2, sued Marlon Wayans, the writer, producer and star of the movie, for racial harassment, alleging that Wayans had repeatedly called him “nigga” on set and had compared him to Black cartoon character both on set and in a social media posting to promote the movie. Daniel only worked on the movie for one day. In his defense, Wayans denied Daniel was singled out and asserted that the subject matter of the movie was “raunchy” and the creative process was largely improvisational, resulting in a free flowing and often crass on and off camera dialogue.

Wayans brought an anti-SLAPP motion to strike all of Daniel’s claims because they arose from Wayans’s constitutional right of free speech. Wayans argued the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet. The California Court of Appeal upheld the trial court’s ruling and held that otherwise harassing comments on the set of a film, even while cameras were not rolling, that were in furtherance of the creative process (it contributed to the formulation of dialogue in largely improvised scenes) were protected under the anti-SLAPP statute, especially in circumstances where the creative process is improvisational and the subject matter of the film is raunchy.

Additionally, the Court held that a posting on a widely-followed social media account to promote a successful film was deemed speech pertaining to an issue of “public interest” and therefore protected.

Finally, the Court ruled that under the above facts, it is not a hostile work environment for a black writer/director/actor to call a subordinate black actor “nigga,” especially in light of the term’s use intra-racially as a term of endearment.

B. Disclosure of Anonymous Online Critics

1. Names of Glassdoor Critics Compelled

In ZL Technologies, Inc. v. Does 1-7, 13 Cal. App. 5th 603 (2017), ZL Technologies, Inc. (the “Company”) brought suit, alleging libel per se and online impersonation, against seven anonymous individuals who represented themselves as current or former Company employees and who posted allegedly libelous reviews of the Company’s management and work environment on Glassdoor (a website where workers can post “reviews” of their employers). The Company filed a motion to compel the names of the seven reviewers. The California Court of Appeal overturned the trial court and granted the motion to compel.

The Court ruled that employers have a right to the names of individuals who post allegedly libelous comments when the employer: 1) makes a prima facie showing of the elements of libel, 2) makes a reasonable effort to notify the anonymous poster that they are the subject of a subpoena, and 3) sets forth the specific statements that are alleged to be actionable. If these are established, no additional test weighing of the “First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed” is necessary.

2. Disclosure of Individual Who Posted Comments In Alleged Breach of NDA Not Compelled

In Glassdoor, Inc. v. Superior Court, 9 Cal. App. 5th 623 (2017), a software developer company (“Company”), brought suit against an anonymous former employee who allegedly violated a nondisclosure agreement (“NDA”) by posting confidential information concerning the Company and its technology on the Glassdoor website. The trial court granted the Company’s motion to compel disclosure of the former employee’s identity, but the California Court of Appeal vacated the order.

The Appellate Court held that in order to compel disclosure of the identity of an anonymous poster, the plaintiff had to satisfy two requirements to overcome the defendant’s constitutional right to preserve his or her anonymity: 1) First, if the anonymous poster has not received notice of the attempt to lift the shield of anonymity, the plaintiff must show that it made reasonable efforts to provide such notice, and 2) the plaintiff must “make a prima facie showing that a case … exists” by presenting evidence that confidential information has been revealed. In order to do this, the plaintiff must identify “the specific statements claimed to have given rise to liability.”

The poster in this instance posted information about the Company’s translator product and purported valuation, and made references to a “platform team.” The Court found that such statements did not facially communicate anything confidential and that the Company was unsuccessful in specifying how the statements of the poster conveyed any confidential information in violation of the NDA.

The Court reiterated the established rule that a publisher of anonymous speech has standing to assert the first amendment rights of an anonymous poster to speak anonymously as the publisher’s pecuniary interest aligns with the poster’s interest in staying anonymous.

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