Response to Petition for Rehearing En Banc, Felicia M. Sonmez v. WP Company LLC et al

Felicia Sonmez alleges that the Washington Post violated the D.C. Human Rights Act by banning her from covering certain stories because she is a woman and a sexual-assault survivor. Op. 2-3. After finding Sonmez’s detailed allegations plausible, a panel of this Court rejected as premature the Post’s First Amendment defense that its decision was driven not by discrimination but by a desire to maintain an appearance of objectivity. Op. 4. Because “what actually motivated the Post editors to impose the bans on Sonmez is a factual question,” the panel held, the Post’s First Amendment defense could not be resolved on a motion to dismiss. Op. 94-97. Now, in seeking rehearing, the Post argues for the first time that, regardless of what motivated its coverage bans, its decisions are categorically protected by the First Amendment. Generally, this Court will not entertain arguments that are first presented in a petition for rehearing. See Nixon v. United States, 736 A.2d 1031, 1032 (D.C. 1999). No matter. The Post’s theory—that any assignment decision a newspaper makes is protected by the First Amendment regardless of the reason for that decision—is badly misguided. On the Post’s theory, a paper could freely ban Black reporters from covering national politics because the White editors of that section prefer a segregated work environment, or it could cancel the column of a union-associated reporter, not because of any concerns with the column’s content, but to retaliate against the employee. This is not hyperbole. The Post has said so. See Pet. 1-2. And, according to the Post, courts are categorically prohibited from inquiring into these decisions. Pet. 2. But the First Amendment does not give newspapers the freedom to discriminate whenever an assignment decision is made by editors. To exercise First Amendment-protected editorial discretion in reassigning a reporter, a newspaper must, at least, take this action for a communicative purpose. The panel correctly remanded for a factual determination as to whether the Post had that purpose here. Op. 96-97. Time will tell. Meanwhile, this case is not ripe for further review and poses no question of exceptional importance. The petition should be denied.