1 year ago
A combustible cocktail of issues swirled Thursday at a Washington appeals court, as lawyers and judges debated the First Amendment rights of the Washington Post, a discrimination claim from one of its former reporters, the public debate over the #MeToo movement and whether news organizations are effectively immune from some workplace discrimination lawsuits.
The D.C. Court of Appeals heard arguments about former Washington Post journalist Felicia Sonmez’s bid to revive her lawsuit accusing the newspaper of discrimination and retaliation for banning her from covering issues involving gender dynamics and sexual assault after she publicly discussed her own claims of sexual assault by another journalist several years earlier.
Sonmez argues that the limits Post editors put on her assignments amounted to discrimination against her as a woman and as a victim of a sexual offense — both of which are prohibited under D.C. law. The Post says the restrictions weren’t due to her status, but to concerns that her public comments on a matter of heated debate could be interpreted as influencing the Post’s coverage.
The newspaper also invoked a D.C. law enacted in 2011 to discourage lawsuits over public statements about matters of public controversy, arguing that the statute forecloses Sonmez’s suit because her claims intrude on the Post’s ability to craft its own messages to the public.
Sonmez was fired from the Post in 2022 for what the newspaper called insubordination, but her lawsuit does not concern the firing.
During the 80 minutes of argument, the three-judge panel seemed somewhat more skeptical of Sonmez’s arguments than the Post’s, but challenged both sides’ contentions and left the bench without giving a clear indication of whether Sonmez will be allowed to go forward with her suit, which a lower court judge tossed out last year.
Judge Loren AliKhan told Sonmez’s attorney, Madeline Meth, that much of Sonmez’s suit seems closely tied to the Post’s decision-making process about news stories and what its employees say and write in public.
“A lot of the allegations that you have pointed to are about assignments that she works on, how they want her to engage in social media. These all seem to be kind of wrapped up in how the Washington Post wants to engage in its expressive or First-Amendment-protected conduct,” AliKhan said.
But Meth argued that silently banning Sonmez from reporting on #MeToo or gender issues really wasn’t speech at all.
“The behind-the-scenes ban did not communicate anything to the public. Indeed, it was confidential,” said Meth, who noted that the Post lifted the ban only after POLITICO revealed it publicly. She said the absence of Sonmez’s bylines from such stories, if noticed, might have been interpreted as her being on other assignments or on book leave.
However, the Post’s lawyer, Yaakov Roth, said the newspaper’s power to make assignments is deeply intertwined with the news it delivers to the public.
“The bans are expressive conduct because they are a form of editorial control and editorial judgment,” Roth said.
That drew a doubtful response from another judge on the panel, Joshua Deahl.
“It strikes me as a little bit of a stretch to say it's expressive conduct where it is purposely kept under wraps by the Washington Post. … What’s the expressive conduct here when they are purposely not expressing anything about this ban?” Deahl asked.
“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 said.
AliKhan stepped into the exchange to note that the Post’s decision not to assign Sonmez to such stories also involved affirmative decisions by the newspaper to assign “those less connected with the controversy to report on it.”
Meth complained that the Post’s restrictions required Sonmez to repeatedly discuss, in the workplace, her past traumatic experiences. The attorney also argued that the Post’s treatment of Sonmez was at odds with how it handled another journalist who remains at the newspaper, Michelle Ye Hee Lee, after she spoke out against the media’s handling of incidents of anti-Asian hate.
“She frequently spoke out about anti-Asian hate crimes and publicly objected to the media's coverage of those crimes, but was allowed to continue to write stories about that topic,” Meth said.
But Roth suggested there really wasn’t anyone advocating for hate crimes against Asians, while the #MeToo movement generated significant public disagreement.
“Condemning anti-Asian hate crimes … is not a hot-button social or political debate. It just isn't. That is not the type of statement that's going to give rise to concerns about appearances of conflict” of interest, he said.
AliKhan didn’t seem to buy that distinction. “That seems hard to say,” she said. “In a post-COVID world, there is considerable controversy over these issues. I mean, who's to determine what discrimination is hot-button versus not?”
Roth said another key distinction was that Sonmez had involved her personal experience, while Lee had not.
The third judge on the panel, Corinne Beckwith, asked fewer questions than the others but did ask the Post’s lawyer how the court should distinguish between Sonmez’s victim status and other activities she engaged in related to that status.
D.C. Superior Court Judge Anthony Epstein dismissed Sonmez’s suit last year, saying it didn’t adequately allege discrimination based on victim status or gender. However, he rejected the Post’s attempt to invoke the free-speech-related law in connection with the case.
The Post fired Sonmez in February 2022 following her public criticism of another Post reporter, Dave Weigel, for retweeting a Twitter post containing a crude joke about women. Weigel apologized and was suspended for a month over the episode.
The newspaper reportedly told Sonmez she was being let go for “insubordination, maligning your co-workers online and violating The Post’s standards on workplace collegiality and inclusivity.” The Post did not publicly explain Sonmez’s firing, but sent a memo to staff at the time suggesting it would not allow its employees to snipe at each other in public. “We do not tolerate colleagues attacking colleagues either face to face or online,” Post Executive Editor Sally Buzbee wrote.
Sonmez’s suit was filed about seven months before her dismissal. She’s sought to protest her firing through a union grievance, but the Post has declined to consider it, citing an expired union contract.
Sonmez’s case has exposed disagreements within news organizations about the value of efforts to seek objectivity in reporting, with generational divides appearing at some newsrooms between older journalists who back such standards and younger journalists who see them both as unevenly enforced and as an obstacle to diversity.
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