After Washington Post reporter Felicia Sonmez took to the twitters to first destroy Jon Kaiman’s career with frivolous accusations, and later twist Kobe Bryant’s death into an excuse to smear the beloved basketball star, her editors decided that she just might be too batshit crazy biased to be trusted to report on stories where she had already burned her credibility, proven her flagrant prejudice and embarassed the paper.
They took her off the sexual-assault story beat, so she sued for sex and victim discrimination because there was no cause of action to sue her employer for removing biased and untrustworthy reporters. In response, WaPo moved to dismiss under the District of Columbia anti-SLAPP law.
A District of Columbia Superior Court judge conducted hourlong arguments Friday on the Post’s unusual bid to use a district statute known as the anti-SLAPP law to dismiss the case filed last July by writer Felicia Sonmez over the newspaper’s decision to block her from covering sexual-assault-related stories.
One might dismiss Sonmez’s discrimination claim as an obvious managerial decision to remove an employee from a position for which the had overwhelmingly proven her incompetence, but WaPo didn’t want to wait for the case to play out through the normal channels of litigation. The anti-SLAPP code provided an expedited means of dismissal. The only problem was how to connect a discrimination suit to a claim that it was a strategic lawsuit against public participation?
“The bans are decisions by the editors at the Post about which stories the plaintiff should cover and which stories plaintiff should not cover. Those decisions are expressive acts taken in furtherance of communicating with the public on issues of concern,” said Roth, a partner with law firm Jones Day. “We recognize this not your typical anti-SLAPP case. In fact, the Post has never invoked the anti-SLAPP statute in an employment case before.”
In some chaos theory sense, it’s conceivable that any editorial decision a newspaper makes is an “expressive act,” since it ultimately relates to content, what it puts out to the public on issues of concern. Certainly the management of WaPo would fight against the contention that its reporters, no matter how bad or biased, don’t get to dictate the paper’s ability to decide what and who gets to show up on its pages, whether by demand or suit.
If Sonmez should prevail in her discrimination suit, would the judgment not then compel the Washington Post to return her to the sex-assault beat? Would it then not constrain the paper from limiting whatever flagrantly biasd reporting she took? Could they edit her, cut her space, trash her stories, or would the paper be constrained to publish whatever this “victim” wrote no matter how awful, prejudiced and embarassing to the integrity of the newspaper it was?
Sonmez’s lawyer, Sundeep Hora, warned Judge Anthony Epstein that allowing the Post to invoke the anti-SLAPP law under these circumstances would essentially exempt the paper from discrimination law, making it all but impossible for a reporter or editor to pursue a claim of racial or gender bias.
“You simply can’t use the First Amendment as a sort of backdrop to make discriminatory personnel decisions,” Hora said, arguing that the Post’s position would allow it to hire “an all-white-male staff,” at least for certain issues.
Hora’s got a point. The nature of a newspaper is that all journalistic decisions implicate, whether directly or indirectly, First Amendment rights of free speech and press, to be permitted to invoke the anti-SLAPP law would effectively serve to preclude any claim for discrimination, whether frivolous or meritous. Sure, WaPo’s business of reporting news inherently involves communicating matter of public concern, but that doesn’t mean that WaPo can’t engage in unlawful discrimination in the process.
Hora said Sonmez’s status as a sexual assault victim should not have barred her from covering certain stories, any more than current Supreme Court nominee Ketanji Brown Jackson should be forced to recuse from drug cases because her cousin was convicted of a drug crime.
Of course, the analogy sounds better on paper than in reality, given the fact aht Sonmez has already conclusively demonstrated her inability to be objective, or to be even more blunt, her self-indulgent attacks in furtherance of her personal bias. Judge Jackson has done nothing of the sort, and has demonstrated her ability to be impartial despite any family experiences.
“Can she serve adequately on criminal cases? The answer is yes,” Hora said.
Actually, the answer is “it depends.” If the case involved a sexual assault, there isn’t a chance in hell that Sonmez wouldn’t be stricken from the jury, most likely for damn good cause, but certainly by use of a defense peremptory. No defendant would trust her to be fair.
However, [Judge] Epstein suggested the issue in Sonmez’s case turned more on her public comments related to sexual assault than on her history or her gender. “Ms. Sonmez was treated exactly the same — until she made statements,” the judge said. “You can engage in public discourse on these topics whether or not you have personally been a victim of these crimes. … She wasn’t banned just because she was a woman from covering the #MeToo movement.”
The judge’s comments cut through Sonmez’s claims of sex and victim discrimination. Her bias, and her personal choice to burn any integrity should might have had as a journalist, wasn’t due to her sex, but to her “mouth.” She is entitled to engage in public discourse on social media, no matter how offensive and outrageous her views might be, but that doesn’t mean that when her discourse affects her ability to perform her job, and her employer’s credibility by allowing someone who has demonstrated that she can’t be trusted as a journalist, it’s about her gender or status. It’s about her bias. Sonmez made it all about her bias, and she did that all by herself.
Yet, that’s a defense to her frivilous discrimination claims, and not an argument in suppot of WaPo’s invocation of the anti-SLAPP statute as an expedited means of getting her suit tossed.
The Post lawyer also said that the actions toward Sonmez were taken in order to preserve perceptions of the paper’s “objectivity and impartiality.” Roth said those judgments were certainly open to public debate, but having a court step in to second-guess them would be a bad precedent for free expression and freedom of the press.
“What’s going on in this case is not really appropriate for a court to decide,” Roth said.
Should Sonmez prevail in the suit, would that put her, or the judge, in the position of dictating WaPo’s journalistic and editorial direction? Would the press then be subject to a court’s rule as to who got to report what? But that addresses the validity of the suit itself rather than the merit of using the anti-SLAPP code to get an expedited dismissal.
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