A line in “Two Tickets to Paradise,” one of singer Eddie Money’s best-known songs, is “Won’t you pack your bags.” In 2015 that was what the rocker told his longtime drummer Glenn Symmonds, firing him and others in his band. Was Symmonds the victim of age discrimination, or was Money exercising his rights, protected by the First Amendment, to decide who would perform with him?
That was the issue recently presented to the California Court of Appeal in Glenn Symmonds v. Edward Joseph Mahoney.
Mahoney, who performs under the name Eddie Money, had a number of chart-topping singles from the late 1970s through the 1990s. Now 69, he continues to have a successful touring career.
He hired Symmonds as his band’s drummer in 1974, and the employment relationship continued “off and on for approximately 41 years,” according to court documents, until Symmonds was terminated along with the rest of the band.
Symmonds sued, alleging discrimination on the basis of age, disability and medical condition. He said Money had let him go because treatments for cancer and surgery for a back injury had made it more difficult for Symmonds, then 61, to perform and to sell band merchandise after shows, which was part of his job duties. Money, he argued, should have made accommodations for his disabilities.
Money asked the Los Angeles Superior Court to dismiss Symmonds’ claim of discrimination, arguing that under the First Amendment to the United States Constitution, he had the right to decide who would perform with him.
He filed what is called an anti-SLAAP motion. The term refers to “Strategic Lawsuits Against Public Policy,” meaning lawsuits aimed at discouraging others from speaking out on public issues or controversies.
California’s anti-SLAPP law allows a court to dismiss such a lawsuit if it determines that the suit is aimed only at preventing someone from exercising their First Amendment rights, concerns an issue of public interest, and has no real likelihood of prevailing.
Attorneys for Money argued that his ability to select the band members performing his music was inextricably linked to his freedom of artistic expression. The lawsuit arose in connection with a matter of public interest, they said, pointing to Money’s many hit songs, millions of records sold, TV appearances and active concert schedule.
They also argued that Symmonds could not demonstrate a probability of prevailing on the merits. They said Money’s decision to lay off the band resulted from his desire to perform with his adult children, and that Symmonds had responded by attempting to discredit Money with concert promoters and his fans, which in turn led to Money’s decision not to rehire him later.
Symmonds was not the victim of age discrimination, they told the court, noting that Money was older than the drummer and the band members he later rehired were all 50 or older. Rather than discriminating against Symmonds because of his cancer, they said, Money had raised money for the drummer’s cancer treatment, and urged fans to buy T-shirts sold by Symmonds imprinted with “Beat Cancer Like a Drum.”
The trial court denied Money’s anti-SLAPP motion. It ruled that Symmonds’ dismissal was related to the alleged age and disability discrimination, not Money’s decision about who would play music in his band.
While it may be true “that an employer’s choice of who is selected to work on a particular show or project in any particular moment in time is an act in furtherance of the employer’s constitutionally protected free speech activity,” the trial court said, that does not mean the alleged discrimination and retaliation against Symmonds was also protected by Money’s free speech rights.
Money appealed, and the Appellate Court determined that the trial court had erred. Money’s “decision to terminate Symmonds was protected activity,” the appellate judges ruled.
It noted that previous decisions have determined that “music, as a form of expression and communication, is protected under the First Amendment,” and that “First Amendment guarantees of freedom of speech and expression extend to all artistic and literary expression, including music and concerts.”
The higher court said that “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.”
In addition, it said, Money’s selection of musicians for his band was an act “in connection with an issue of public interest” because of his popularity. An issue need not be “significant” to be protected by the anti-SLAPP statute, the appellate court said; it just has to be one in which the public takes an interest.
he appellate judges acknowledged that cases in which the court must balance an employer’s free speech rights against an employee’s protections against discrimination “present very difficult questions,” and “reasonable minds may differ on the proper resolution.”
In this case they sided with Money, ordering the trial court to grant his anti-SLAPP motion and awarding him his costs on appeal.
By Michael R. Morris