Greater La Agency on Deafness v. Cable News Network, Inc.

• Decision Date: 23 March 2012
• Docket Number: No. C 11–03458 LB.,C 11–03458 LB.
• Citation: 862 F.Supp.2d 1021
• Parties: GREATER LA AGENCY ON DEAFNESS, et al., Plaintiffs, v. CABLE NEWS NETWORK, INC., Defendant.
• Court: U.S. District Court — Eastern District of California

862 F.Supp.2d 1021

GREATER LA AGENCY ON DEAFNESS, et al., Plaintiffs,

v.CABLE NEWS NETWORK, INC., Defendant.

No. C 11–03458 LB.

United States District Court,

N.D. California,

Oakland Division.

March 23, 2012.

Laurence Wayne Paradis, Anna Rachel Levine, Elizabeth Rauh Leonard, Disability Rights Advocates, Berkeley, CA, Jason Holland Tarricone, Linda Mary Dardarian, Rachel Elizabeth Brill, Goldstein Demchak Baller Borgen and Dardarian, Oakland, CA, Peter David Blanck, Attorney at Law, Syracuse, NY, for Plaintiffs.

Thomas R. Burke, Davis Wright Tremaine LLP, San Francisco, CA, Janet Lynn Grumer, Davis Wright Tremaine LLP, Los Angeles, CA, Ronald G. London, Davis Wright Tremaine LLP, Washington, DC, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO STRIKE

LAUREL BEELER, United States Magistrate Judge.

I. INTRODUCTION

Plaintiffs Greater Los Angeles Agency on Deafness, et al., allege that Defendant Cable News Network, Inc. (“CNN”) ¹ violated the Unruh Civil Rights Act, Cal. Civ.Code §§ 51, et seq., and the California Disabled Persons Act, Cal. Civ.Code §§ 54, et seq., because it failed to include captions on videos posted on its website CNN.com, which therefore were inaccessible to the more than 100,000 people who are deaf or hard of hearing in California. Complaint, Exh. A to Notice of Removal, ECF No. 1 at 13.² CNN moves to strike Plaintiffs' claims pursuant to section 425.16 of the California Code of Civil Procedure, arguing that both claims arise from its news-gathering activities and dissemination of news concerning matters of substantial public interest and that Plaintiffs cannot establish a probability that they will prevail on their claims. Motion, ECF No. 13 at 2. The court held two hearings and considered supplemental briefing at CNN's request. The court denies CNN's motion to strike on the ground that CNN's decision not to caption its already-generated videos is not an act in furtherance of its First Amendment rights.

II. LEGAL STANDARD

Section 425.16 of the California Code of Civil Procedure is called the anti-SLAPP statute because it allows a defendant to gain early dismissal of causes of action that are designed primarily to chill the exercise of First Amendment rights. See Siam v. Kizilbash, 130 Cal.App.4th 1563, 1568, 31 Cal.Rptr.3d 368 (Cal.Ct.App.2005). The statute provides

A cause of action against a person 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 shall be subject to a special motion to strike, unless the court determines that there is a probability that the plaintiff will prevail on the claim.

Cal.Code Civ. P. § 425.16(b)(1)

Acts “in furtherance of” these rights include:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative,executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or 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.

Id. at § 425.16(e).

California's anti-SLAPP statute applies to state claims in federal court. See Thomas v. Fry's Elecs., Inc., 400 F.3d 1206, 1206–07 (9th Cir.2005). In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. See Equilon Enters. v. Consumer Cause, Inc., 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Cal.2002). First, the court decides whether the defendant has made a threshold showing that the challenged cause of action arises from acts in furtherance of the defendant's right of petition or free speech under the United States or California constitutions in connection with a public issue. Id. “If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” Id. The claim is subject to dismissal only when the defendant shows that the claim is based on protected conduct and the plaintiff fails to show a probability of success on that claim. See Navellier v. Sletten, 29 Cal.4th 82, 88–89, 124 Cal.Rptr.2d 530, 52 P.3d 703 (Cal.2002).

A defendant needs only to make a prima facie showing that the claim “arises from” its conduct “in furtherance of” its exercise of free speech or petition rights as defined in section 425.16(e) of the California Code of Civil Procedure. See Equilon, 29 Cal.4th at 61, 124 Cal.Rptr.2d 507, 52 P.3d 685. The burden then shifts to the plaintiff to establish as a matter of law that no such protection exists. See Governor Gray Davis Committee v. American Taxpayers Alliance, 102 Cal.App.4th 449, 456, 125 Cal.Rptr.2d 534 (Cal.Ct.App.2002). To establish a probability of prevailing, a plaintiff must demonstrate that the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. See Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass'n, 136 Cal.App.4th 464, 476, 39 Cal.Rptr.3d 43 (Cal.Ct.App.2006). The plaintiff also must present evidence to overcome any privilege or defense to the claim that has been raised. See Flatley v. Mauro, 39 Cal.4th 299, 323, 46 Cal.Rptr.3d 606, 139 P.3d 2 (Cal.2006).

If the court grants an anti-SLAPP motion, a defendant may recover fees and costs. Cal.Code Civil P. § 425.16(c); see Verizon Delaware v. Covad Comms., 377 F.3d 1081, 1091 (9th Cir.2004).

III. DISCUSSION

CNN asserts that its captioning of news videos on CNN.com is protected under section 425.16(e)(4) as “other conduct in furtherance of ... the constitutional right of free speech in connection with a public issue or an issue of public interest.” See Motion to Strike, ECF No. 13 at 15.³ Plaintiffs do not dispute that CNN is in the business of speech or that its news videos are in connection with public issues or issues of public interest. Plaintiffs' Supplemental Brief, ECF No. 41 at 6. The parties disagree only about whether CNN's refusal to provide captioning is an act in furtherance of its protected speech rights that satisfies the first prong of the anti-SLAPP test and shifts the burden to Plaintiffs to show a probability of prevailing on their claims.

CNN's arguments are as follows: (A) under a broad construction of the anti-SLAPP statute, all of its activities as a news media organization are in furtherance of its free speech rights and (B) even considering only its decision not to provide closed captioning, that decision is an act in furtherance of free speech because (1) the decision cannot be divorced from the broadcasted speech and (2) the closed-captioning technology results in errors, and CNN's decision not to use the technology is an exercise of editorial discretion that is conduct in furtherance of its rights of free speech. Defendant's Supplemental Brief, ECF No. 40 at 9–23. In opposition, Plaintiffs contend that (A) the statute does not exempt media defendants from the first prong and (B) providing closed captioning does not delay the timing or quality of CNN's online video content. Plaintiffs' Supplemental Brief, ECF No. 41 at 10–17.

The two issues thus are whether CNN has established (A) whether all its business activities are acts in furtherance of its free speech rights and, if not, (B) whether its decision not to caption is conduct in furtherance of its free speech rights.

A. Whether All of CNN's Activities Are Acts in Furtherance of Its Free Speech Rights1. CNN's Arguments

CNN argues that state and federal courts construe the anti-SLAPP statute broadly to reach conduct beyond the actual exercise of free speech. Defendant's Supplemental Brief, ECF No. 40 at 9–16. For this proposition, CNN relies in part on the Ninth Circuit's observation that “the courts of California have interpreted this piece of the defendant's threshold showing rather loosely.” Id. at 11 ( quoting Hilton v. Hallmark Cards, 599 F.3d 894, 904 (9th Cir.2010)). CNN also suggests that Plaintiffs seek to impose an impermissible requirement that a cause of action must have an actual chilling effect on a defendant's exercise of free speech. Id. at 13. CNN then argues that the legislative intent of the statute requires that it be read broadly to include non-communicative conduct. Id. at 13–16.

Boiled down, CNN's argument is that because the court must construe the anti-SLAPP statute broadly, reading the first prong of the anti-SLAPP test as having any limits (at least as applied to a news media organization) would construe the statute in an impermissibly narrow manner.

2. Plaintiffs' Arguments

Plaintiffs do not dispute that courts must construe the anti-SLAPP statute broadly but contend that the broad construction is to effect the statute's purpose. Plaintiffs' Supplemental Brief, ECF No. 41 at 6–7. In support of their argument, Plaintiffs quote the statute's purpose:

The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the regress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.Id. at 7 (quoting Cal.Civ.Proc.Code § 425.16(a)). Plaintiffs observe that CNN redacted this preamble to emphasize only “construe broadly,” but the full...