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For those with an interest in television, film and video, or employment nondiscrimination law, we report the recent California Courts of Appeal decision in Kyle Hunter v. CBS Broadcasting.  In deciding a preliminary motion in the case the court ruled against would-be weather news anchor Kyle Hunter (represented by media maven attorney Gloria Allred) in his case against CBS Broadcasting for failing to hire him and allegedly instead favoring “younger attractive females” for on-camera weather news hires.

California’s law limiting “Strategic Lawsuits Against Public Participation” (“SLAPP” suits) requires that a plaintiff whose lawsuit implicates the exercise of First Amendment rights to not merely assert in a complaint that the defendant’s conduct was legally actionable, but must also offer evidence showing a reasonable probability that he will prevail on the merits of the case.  The current ruling is at the anti-SLAPP stage of the case, and thus determines whether the broadcaster can stifle the case early as an unfounded attack on its First Amendment news reporting rights.

The case may reflect a looming turning point in the law recognizing the selection of on-camera talent of many kinds (news, drama, sitcom, music, dance, other performing arts), as essentially casting decisions which therefore reflect audience attraction strategy and targets, in addition to inherent pure skill and technical proficiency of performers.   Arguably this might be news to no one but the courts.

On the journalism side of the media industry, however, companies may be reluctant to explain and defend hiring decisions on the basis that age, gender, ethnicity and other protected characteristics can be central factors in casting performance roles.   Or perhaps the reluctance might be to explicitly identify on-camera journalists as performers, with a casting dimension beyond their strict professional credentials.   And as always, there are performers whose personal talent and skill can overwhelm, or transform, the limitations of a casted role.

In any event, it is still a somewhat new phenomenon for an authoritative California appellate court to agree that a producer’s selections of news weather anchors “were essentially casting decisions regarding who was to report the news,” which helped to advance or assist protected First Amendment expressive communication.   As a result of the decision, the defendant need not defend the merits until plaintiff has first proven a reasonable probability, under California’s anti-SLAPP law, that he can prevail on his ultimate claims.   Because the case remains at this preliminary stage, the court has not yet considered general employment law defenses, such as that with a permissible casting analysis, a role’s age and sex characteristics may be “bona fide occupational qualifications.”

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