Defendants Edward Joseph Mahoney, also known as Eddie Money, and Eddie Money Entertainment, Inc. (collectively, defendants) appeal from the trial court’s order denying a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.
Mahoney is a singer and songwriter who performs in concerts across the country. In 2015 he terminated his drummer, plaintiff and respondent Glenn Symmonds, who subsequently sued defendants for discrimination on the basis of age, disability, and medical condition. Defendants filed an anti-SLAPP motion arguing that Mahoney’s decision as to which musicians performed with him was an act in furtherance of the exercise of his constitutional right of free speech in connection with an issue of public interest, and thus protected under section 425.16. The trial court denied the motion, finding that Symmonds’ cause of action arose from defendants’ discriminatory conduct, not the decision to terminate him, and thus Symmonds’ claim did not implicate Mahoney’s free speech rights.
The Appeal Court held “Music, as a form of expression and communication, is protected under the First Amendment.” (Ward v. Rock Against Racism (1989) 491 U.S. 781, 790; see also McCollum v. CBS, Inc. (1988) 202 Cal.App.3d 989, 999 [“First Amendment guarantees of freedom of speech and expression extend to all artistic and literary expression,” including “music” and “concerts”].) Courts have held that acts that “advance or assist” the creation and performance of artistic works are acts in furtherance of the right of free speech for anti-SLAPP purposes. (Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [writing, casting, and broadcasting popular television show are acts in furtherance of free speech].)
A singer’s selection of the musicians that play with him both advances and assists the performance of the music, and therefore is an act in furtherance of his exercise of the right of free speech. The Appeal Court’s conclusion was supported by Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, an opinion in Division Seven of the Court. In Hunter, the plaintiff filed an employment discrimination suit alleging that two television stations owned by the defendant had “refused to hire him as a weather news anchor because of his gender and age.” (Id. at p. 1513.) The defendant argued that its “selection of a weather anchor . . . qualifies as an act in furtherance of the “Music, as a form of expression and communication, is protected under the First Amendment.” (Ward v. Rock Against Racism (1989) 491 U.S. 781, 790; see also McCollum v. CBS, Inc. (1988) 202 Cal.App.3d 989, 999 [“First Amendment guarantees of freedom of speech and expression extend to all artistic and literary expression,” including “music” and “concerts”].)
The California Appeal Court held that defendants met their burden to establish that Mahoney’s decision to terminate Symmonds was protected conduct. Accordingly, the Appeal Court reversed and remanded so the trial court may conduct the second step of the anti-SLAPP analysis and determine whether Symmonds has demonstrated a probability of prevailing on the merits of his claim. The Appeal Court denied Symmonds’ requests for attorney fees and sanctions.
See Robert’s Legal Article “Analysis of California’s Anti-SLAPP Law.”
If you are faced with discrimination in the workplace or anywhere else, you need a highly skilled and tenacious attorney as your advocate! Contact the Law Office of Robert Rodriguez!
Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.