By Mike Cavender, RTDNA Executive Director
A California state court of appeals decision late last year didn’t receive a lot of publicity, but it’s worthy of note because it might ultimately offer some unique protection to news managers who make on-air hiring decisions, at least in California.
Here’s the story: In 2012, meteorologist Kyle Hunter sued CBS Broadcasting, claiming its two Los Angeles affiliates (KCBS and KCAL) “repeatedly shunned him for numerous on-air broadcasting (jobs) due to his gender and age.” His suit alleged that network executives had decided to give the primary weather forecaster’s job to “younger attractive females.” Hunter’s claim of discrimination revolved around the fact that he had more than 20 years experience and an AMS seal, while the new hire had much more limited experience and no certification.
CBS argued to the original trial court that Hunter’s suit should be thrown out, citing a California law (keep in mind the state’s huge entertainment business) that it claimed qualified its hiring decisions involving on-air personalities as forms of “protected speech.” The company said that weather information is a primary driver of the audience’s decision to watch a given station and weather personalities have a major impact on ratings as a result.
While the LA Superior Court didn’t buy that argument, the Second Appellate Court did. The higher court said that a number of lower courts—albeit mostly in that LA-area district--have decided that reporting the news and creating TV shows are covered free speech activities.
“CBS’s selections of its KCBS and KCAL weather anchors, which were essentially casting decisions… helped advance or assist both forms of First Amendment expression,” wrote Judge Laurie Zelon. “The conduct therefore qualifies as a form of protected activity.”
This is an interesting opinion and, at least in a very narrow geographic region, appears to offer some support to what is likely the worst-kept secret in the television business, at least when it comes to on-air hiring decisions.
“The court’s reasoning that casting decisions are in furtherance of the station’s free speech rights, regardless of whether they have a discriminatory impact, is clearly controversial,” employment lawyer Todd Bromberg of Wiley Rein LLP, told me. “(It) will certainly pose thorny issues when applied to race, age and religion.”
Bromberg pointed out the decision is “entirely premised on a California statute that provides heightened protection for First Amendment rights and therefore offers no real guidance to judges outside of the state.”
Even whether this decision will survive is unclear. Zelon also said in her opinion that Hunter’s discrimination suit still raises other issues that need to be decided and remanded the case back to Superior Court to rule on those points. But it’s worth watching to see.
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