Court tosses out reporter’s discrimination suit against Washington Post

However, Epstein rejected an unusual and potentially more sweeping argument from the Post that a law aimed at limiting lawsuits related to issues of public controversy required that Sonmez’s suit be thrown out. Sonmez’s lawyer contended that the Post’s invocation of the so-called anti-SLAPP law amounted to a claim that the newspaper had carte blanche to discriminate against journalists and seek refuge in the speech-protection law.

Epstein’s 28-page ruling said the Post’s actions curtailing Sonmez’s reporting were open to debate, but they did not amount to discrimination.

“Nothing in the complaint suggests that the Post would, for example, not suspend a reporter who made a public statement about the personal impact of the recent murder of a relative from covering stories about violent crime, or a reporter who made a public statement about the continuing trauma caused by his family’s eviction from covering landlord and tenant court, or a reporter who publicly campaigned for members of one political party from covering elections,” wrote Epstein.

“Unless the newspaper’s decision is infected by a discriminatory intent against a member of a protected class, judges and juries are not free to second-guess a newspaper’s judgment about the assignment of reporters, just as they are not free to second-guess an employer’s business judgment,” the judge added. “Reasonable people may disagree about whether Ms. Sonmez’s public statements created an appearance issue. But the facts alleged by Ms. Sonmez do not demonstrate that the Post’s concern was unreasonable on its face.”

A spokesperson for the Post declined to comment on the ruling.

Sonmez referred questions about the decision to her attorney, Sundeep Hora, who said an appeal is planned.

“We respect the judge’s decision. We disagree with his reasoning and we plan to pursue whatever avenues of appeal are available to us,” Hora said in an interview.

Epstein noted that Sonmez had insisted she could report objectively on #MeToo issues, but he said that assurance did not fully ameliorate the Post’s concerns about what its readers might think about her detachment on such stories.

“When the issue is whether an appearance of partiality exists, it is irrelevant whether a person is in fact able to be objective,” the judge wrote. “Accepting the truth of Ms. Sonmez’s assurance of her objectivity, it does not follow that readers of the Post would have confidence that its stories were the product of objective reporting and that the stories were not affected even by implicit biases of a reporter who made public statements about her own personal experience with the subject of the story. News media companies have the right to adopt policies that protect not only the fact but also the appearance of impartiality.”

Epstein noted that the Post knew of Sonmez’s claims of sexual assault at the time the paper hired her and he said it was “affirmatively implausible that her victim status or gender was a reason for the Post’s decisions concerning her assignments.”

The anti-SLAPP law, which takes its name from the phrase Strategic Lawsuits Against Public Participation, is typically used to try to quickly defeat libel suits based on news stories about public events or statements people make during debates on issues of public concern. The Post’s effort to wield the law to block a discrimination case was unusual. It appears only a handful of defendants have made such arguments.

Epstein concluded that the Post’s staffing decisions are not within the sweep of the D.C. version of the statute. “Claims arising out of a news publication’s exercise of editorial discretion concerning the assignment of reporters or enforcement of its code of ethics do not trigger the protections of the Anti-SLAPP Act because exercising this discretion is not actual speech or expressive conduct,” the judge wrote. “The Post’s decision not to assign Ms. Sonmez to #MeToo-related stores is not speech, and it therefore does not trigger the protections of the Anti-SLAPP Act.”

That aspect of the judge’s ruling may be of little ultimate consequence in Sonmez’s case and may have little impact in other cases because he appeared to conclude that any lawsuit aimed at impacting a news outlet’s assignments would have serious First Amendment problems.

“The Court does not doubt that a newspaper’s decisions about assignment of reporters or about adoption and enforcement of a code of ethics for its reporters is protected by the First Amendment and that these actions are in furtherance of a newspaper’s constitutionally protected freedom of the press,” Epstein wrote.

Sonmez, who was hired by the Post in 2018, filed suit last July against the paper and several of its top editors. She alleged they discriminated against her as a sexual assault victim and on account of her gender when they blocked her from covering the sexual assault allegations against Supreme Court nominee Brett Kavanaugh a few months after she joined the Post. D.C.’s human rights law specifically protects “victim status,” in addition to categories such as race and gender.

Sonmez’s suit also said the Post discriminated against her when she was suspended with pay for two days after she responded to the death of basketball star Kobe Bryant in a helicopter crash with a tweet noting the sexual assault allegations that he raped a hotel employee. He denied the claim, but paid a settlement to resolve a related civil case. Post editors said Sonmez violated the paper’s social media policy, but she was reinstated after the Post faced a storm of criticism for disciplining her over her tweets.

In addition to its free-speech arguments, the Post contended that limitations on Sonmez’s assignments and the brief suspension of her did not amount to the kind of adverse action that can give rise to a discrimination case.

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