DC Appeals Court ponders how far newsrooms can go to promote image of “objectivity”

Can a news organization discriminate against its employees to preserve the appearance of “objectivity” in its reporting? Does the First Amendment grant media companies immunity from most employment discrimination lawsuits? And does speaking out against sexual violence undermine a reporter’s credibility in a way that speaking out against other types of identity-based violence does not?

Those questions and more were up for debate during a complicated and, at times, contentious court hearing last month, as the D.C. Court of Appeals will soon decide whether to revive a lawsuit brought by reporter Felicia Sonmez against the Washington Post — one which could  have lasting implications for news workers and the media industry more broadly.

During oral arguments on Nov. 16, a three-judge panel had tough questions for attorneys on both sides of the dispute, indicating they were still mulling the complex issues at hand. 

In 2021, Sonmez, then a breaking news political reporter at the Post, sued the paper and several of its top editors, alleging they fostered a hostile workplace and discriminated and retaliated against her by prohibiting her from covering issues of sexual misconduct and gender due to her history as a sexual assault survivor — a form of discrimination made illegal in D.C. in 2019. 

The Post’s lawyers defended the paper’s actions by arguing editors barred Sonmez from covering such topics not because of her personal history or identity, but due to her “public advocacy” about the matter. They pointed to statements she made standing in solidarity with other victims of her alleged assailant, and highlighted her public calls for news organizations to engage in transparent processes when investigating such allegations.

In March of 2022, Judge Anthony Epstein of the Superior Court of D.C. approved the Post’s motion to dismiss Sonmez’s suit, finding that “a news publication has a constitutionally protected right to adopt and enforce policies intended to protect public trust in its impartiality and objectivity.” 

“[W]hen the issue is whether an appearance of partiality exists, it is irrelevant whether a person is in fact able to be objective,” Epstein continued. “News media companies have the right to adopt policies that protect not only the fact but also the appearance of impartiality.” 

Post lawyer suggests #MeToo commentary distinct from other identity-based violence

Central to Sonmez’s claim against the Post is her “comparator” evidence, in which she points to examples whereby another reporter, who condemned violence against Asian Americans, was allowed to cover Asian American stories and issues — and was celebrated by editors when she did — despite Sonmez being barred from covering matters involving sexual misconduct given her own experiences.

In her appellate brief, Sonmez’s attorneys highlight Post reporter Michelle Ye Hee Lee’s public advocacy against rising racist and Sinophobic violence against Asian Americans in 2021; Lee, who was born in Seoul, was then serving as the president of the Asian American Journalist Association (AAJA). She was vocal about the discrimination Asian Americans were facing in the wake of the COVID-19 pandemic’s start, at times posting public calls for news organizations to improve their coverage of such communities.

“When other reporters spoke out about sensitive issues, the Post not only let them continue to cover that subject, but held them up as models of responsible journalism,” Sonmez’s brief argues. 

During the November hearing, judges honed in on this comparison.

“The Post’s concerns about objectivity seem to fall uniquely on victims of sexual abuse in the way that they don’t fall on other reporters,” Judge Joshua Deahl noted. “Wouldn’t that be a viable basis to allege discrimination?”

Yaakov Roth, a partner at Jones Day who represented the Post at the hearing, countered that Lee’s advocacy was distinct from advocacy against sexual violence.

“The obvious difference is condemning anti-Asian hate crimes, which is what Miss Lee is alleged to have done, is not a hot-button social or political debate,” Roth alleged. “That is not the type of statement that’s going to give rise to concerns about appearances of conflict.” 

His claim appeared to rub the judges the wrong way.

“That seems hard to say in a sort of post-COVID world in which there is considerable controversy over these issues,” responded Judge Loren AliKhan. “Who’s to determine, kind of, what discrimination is hot-button versus not?” 

Noting the coverage ban was imposed before the pandemic began, Roth doubled down on his distinction: “It’s not a secret, but [the] #MeToo movement has become a very hot-button, social debate where people have very strong views.” 

“Ms. Sonmez was weighing in on those issues,” Roth said. “She was not saying, you know, ‘Sexual violence is bad,’ which would not have caused any of us— we wouldn’t be standing here today if she had tweeted, ‘End sexual violence,’ right? Her statement took positions on issues.” 

Pressed later on to explain what public comments Post editors took issue with, Roth pointed to a 2018 statement Sonmez sent to several news organizations that had reported on sexual misconduct allegations against Jonathan Kaiman, a former Los Angeles Times bureau chief and Sonmez’s alleged assailant. Beyond criticizing the Times’ lack of transparency in its investigation, Sonmez’s statement included support of Laura Tucker, a former housemate of Kaiman’s and the first person to go public with allegations against him.

“I stand in solidarity with Laura Tucker, who took the brave step of speaking out first, paving the way for others to follow,” Sonmez’s statement read in part.

Though her statement had been approved by Post lawyers before being released, Roth, in the hearing, argued her words amounted to “putting herself very forcefully in the public eye with respect to a debate over a #MeToo allegation” in a way that could give readers the perception of bias. Of the Post’s coverage ban, Roth concluded: “Whether it’s right or not, it’s not discriminatory.”

Roth also suggested Sonmez’s decision to center her personal experience in her comments was distinct from Lee’s more broad advocacy against racist violence, a distinction also highlighted by Epstein when he affirmed the Post’s motion to dismiss the initial suit.

At another point during the hearing, Roth presented a different argument, this time as to why Sonmez’s coverage ban couldn’t be legally considered retaliation: Even if it was discriminatory, discrimination based on sexual victimhood was not illegal when Sonmez was first banned from reporting on #MeToo issues.

“It’s not an allegation of a complaint about illegal discrimination, because it wasn’t illegal at the time,” Roth said. “Even if it was true that they discriminated based on victim status, that was OK in 2018.”

Indeed, being a victim or family member of a victim of domestic violence, a sexual offense, or stalking (DVSOS) was not added as a protected class to the D.C. Human Rights Act until late 2019. Employment discrimination against individuals in that category was legal in D.C. until that point, so long as it did not also encompass other types of illegal discrimination based on things like sex, race, or religion.

The Objective sent the Washington Post excerpts of Roth’s quotes along with several specific questions about his arguments, including whether it was the Post’s stated policy that commentary about #MeToo was considered “controversial” in a way other types were not, and whether the organization was comfortable engaging in discriminatory employment practices so long as they were not illegal. 

A spokesperson for the Post declined to comment, pointing to the paper’s policy not to speak about litigation. 

Sonmez also declined to comment on the Post lawyer’s arguments. 

The day of the hearing, she told The Objective she “could not have a better team on my side, and I feel incredibly grateful that they saw this case as one of great public interest and that they offered to take it on.” 

Are news outlets immune to employment discrimination lawsuits?

Beyond the complex and important questions Sonmez’s suit raises about journalistic objectivity, the outcome could also impact the future of employment discrimination claims against news organizations.

In court, the Post has argued it acted rightly in banning Sonmez from covering #MeToo issues due to the possible appearance of bias her public statements could give readers. But Post lawyers also argue her lawsuit should be tossed altogether for a different reason: D.C.’s anti-SLAPP statute.

Policies barring so-called “Strategic Lawsuits Against Public Participation” (SLAPPs) are widespread; 33 U.S. states have adopted some kind of anti-SLAPP law as of 2023, according to the Reporters Committee for Freedom of the Press. 

The policies are designed to enable defendants of lawsuits to easily dismiss frivolous cases that seek to punish those exercising First Amendment rights to things like free speech, press, or assembly. They’re often utilized by news organizations to defend against defamation cases brought by wealthy individuals unhappy with their portrayal in reporting.

In this case, however, the Post argues Sonmez’s discrimination suit functions as a SLAPP, infringing on editors’ right to make decisions about editorial content. Sonmez’s coverage ban functioned as a form of “expressive conduct” relating to an “issue of public interest,” Roth argues, burdens required to be met to fall under the purview of D.C’s anti-SLAPP law. 

Though he dismissed the initial lawsuit, Epstein didn’t seem to buy that argument. He wrote in his decision that the Post’s policy barring Sonmez from covering #MeToo issues was “not speech,” and, as such, not subject to anti-SLAPP protections. Still, he didn’t extend much additional commentary on the matter, given his dismissal of the case on other grounds.

Roth, during the November hearing, sought to revive the anti-SLAPP argument. 

“The bans are expressive conduct because they are a form of editorial control and editorial judgment,” he argued. “The courts have said for a long time, in the First Amendment context, editorial judgment is expressive conduct. It’s part and parcel of the speech itself.”

Pushing back, the judges asked how such a policy could be considered “expressive conduct” when it was intentionally kept secret; Sonmez’s coverage ban wasn’t made public until Politico reported on it in 2021. 

“Expression is both the freedom to speak and the freedom not to speak, and the freedom to decide what to speak about and how to speak about it,” Roth countered. Pointing to a recent decision from the California Supreme Court related to SLAPP suits and discrimination matters, he argued most employment decisions made by news organizations should fall under anti-SLAPP laws and therefore be easily dismissed, so long as they concerned matters of “editorial control.” 

But the judges appeared concerned about the implications of such a wide-ranging conclusion.

“Somebody wants to run a white power newspaper and they only want to hire white journalists,” Deahl posed. “You would say that is protected by the anti-SLAPP Act?”

Without fully answering that question, Roth put forward his own example: “Imagine if a newspaper that is doing a symposium on the effect of the Black Lives Matter movement and chooses to assign those stories to Black reporters rather than white reporters. Yes, I think that would probably fall within the scope of the anti-SLAPP statute if somebody sues over that decision.” 

Despite the Post’s arguments, some groups typically known for free speech advocacy oppose such a broad interpretation.

The ACLU of D.C., for example, filed an amicus brief in the case pushing back against the notion that Sonmez’s case is a SLAPP. 

The Post’s employment decisions “may ultimately affect the Post’s communication of its views to the public, but they are not themselves expressive acts that involve communicating views to the public,” the brief argues. “The Post’s gambit seeks to stretch the law that the [D.C.] Council enacted to help local activists into a law that will protect the institutional media for conduct far afield from the public expression of views on issues of public interest.” 

Concluding the hearing, the judges gave no concrete indications of how they might rule on the matter. As of early December, the judges had yet to render a decision, and there’s no timeline for when they might do so. 

“Now it’s just a matter of waiting,” Sonmez told The Objective after the hearing. “I’m happy to wait as long as it takes.” 

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This piece was edited by Omar Rashad. Copy edits by James Salanga.