Apple’s mandatory vaccine is “creative” expression—employee’s lawsuit held a SLAPP

In 2020 and 2021, public health professionals declared that large gatherings of unvaccinated and untested protesters were “vital to the national public health” to express the important issue of awareness of George Floyd’s death. A few months later, Apple, casting the role of Andrew Johnson for its series Manhunt, concluded that “masking, periodic testing, and socially distancing were insufficient” safety measures. Based on this conclusion, Apple rescinded its offer to Brent Sexton because he was unvaccinated. Sexton sued, but in a published opinion in Sexton v. Apple Studios LLC (Cal. Ct. App., Mar. 28, 2025, No. B333481), the Court of Appeal held that Apple’s mandatory Covid vaccination program was not only permissible but protected by the First Amendment.

Sexton’s challenge to the mandatory vaccine, as a result, was a SLAPP. His lawsuit was summarily dismissed, and he must pay Apple’s attorneys’ fees.

In reaching its conclusion, Justice Wiley explained that Apple, in casting an actor, could not use masking or social distancing “without changing the creative requirements of the role.” Mandatory vaccination, then, becomes expressive activity.

Justice Wiley also reasoned that Apple’s mandatory vaccination policy was protected because it “implicated the public issue of vaccination policy.” It was also protected because President Andrew Johnson was an important public figure. The opinion then goes into histories of vaccines and Johnson. The panel notes that precedent protects a local TV station’s decision how to present a weather report, and Andrew Johnson is at least as much a public figure as the local weatherman.

Apple’s policy, the court concluded, was also reasonable because, in mandating the Covid vaccine in early 2021, “it was following contemporary conventional wisdom.”

The court also concluded that daily testing was inadequate because it “suffered a lag, meaning that a favorable test result nonetheless might allow a disease spreader into the workplace.”

Comment:

In addition to approving a mandatory vaccine program on anti-SLAPP grounds, there are several other strange things about this opinion.

1. It seems a reach to conclude that making your employees get a vaccine they don’t want is expressive conduct. The reason this doesn’t work is that the decision to vaccinate is ultimately a decision about balancing risks. That involves hard questions to be sure. But they are not creative questions.
2. Sexton argued that Apple’s decision was not ultimately creative but logistical. But Justice Wiley rejected this distinction as “specious” because accommodating Sexton’s medical choice would have required Apple to isolate Sexton and film him “in an empty room or open field, without makeup” and then “somehow edit[] those shots into the final show.” But this seems off to me. Recall that the George Floyd protesters used neither social distancing nor vaccines. Instead, the public issue was deemed so important as to transcend those interests. Here, the panel has painted such a compelling public interest in the figures of Lincoln and Johnson as to support the same conclusion that Apple, like the protesters, could have forgone preventive measures entirely in pursuit of their important, creative, public-spirited vision. And if they could have damned the risks to pursue that vision, then the choice to mitigate the risks was ultimately logistical—not creative.
3. Nor do I think the opinion is limited to the decision to cast actors, because an employer could also make the decision—important to its marketing and branding efforts—that masks and distancing are impersonal, and so the only way to express its branding and values to its customers is by requiring their employees to vaccinate.
4. True, the Covid vaccine is a public issue. Surely Apple’s expression of opinion about the issue would be protected conduct. But does that mean that mandating the vaccine is protected by the First Amendment? The court does not seem to mind the line here between thought and action. Apple could emblazon “F*** the Draft” on its own property, sure, but it couldn’t mandate its employees to act on it. So just identifying vaccines as a public issue—subject to ongoing debate and controversy—does not explain how mandating vaccines is protected conduct.
5. Was it really necessary to spend several pages explaining that Lincoln’s assassination and Johnson’s presidency were important public issues? The court concluded from this discussion that “The function of casting Johnson was to put a live face on a dead man.” But this is belaboring the obvious. No one needs to be reminded that, when deceased figures are portrayed on screen, they are played by living actors. The question is, just because you can impose certain conditions upon the actor for the sake of the role, does this extend to making him get a vaccine? Especially a vaccine, approved under emergency use authorization, backed by abbreviated testing—mostly industry testing—dating mere months?
6. There is something deeply unsettling that an employer’s decision will be deemed “reasonable” and protected merely because “it was following contemporary conventional wisdom.” Recall a few other practices that were, in their times, consistent with “contemporary conventional wisdom”: Smoking promoted relaxation and alertness (and, we learned only later, cancer). Thalidomide prevented morning sickness in pregnant women (and, we learned later, birth defects). Fen-Phen promoted weight loss (and, later, heart valve damage). Vioxx promoted reduced inflammation (and heart attacks and strokes). And for fans of another Apple series Severance, in the future something like the severance procedure—implanting technology into an employee’s brain—might be shown, by early industry-backed studies, to be safe and effective at promoting certain healthful effects. But a reasonable person does not outsource judgment to fleeting orthodoxy—”contemporary conventional wisdom”—especially when that orthodoxy is young, untested, and institutionally enforced. Reasonableness demands skepticism, consideration of alternatives, and awareness of unintended consequences.
7. Despite the opinion’s being published, lengthy, and based largely on the fact that health officials took the line that the vaccine prevented transmission, the omission of the fact that officials quickly backtracked from that position is curious. Recall that it was in late March 2021 that CDC Director Rochelle Walensky stated that “Vaccinated people do not carry the virus, don’t get sick,” yet just over three months later in July the CDC warned that the new Delta variant was “different from past versions of the virus,” “much more contagious,” and that “Breakthrough infections occur” despite vaccination. So the “contempoary conventional wisdom”—the basis for Apple’s win here—existed just 3-4 months. And that wisdom proved baseless a few months later in October 2021 when a Pfizer executive testified before European Parliament that the vaccine was never tested for transmission anyway, only for prevention of severe illness.
8. The court’s dismissive treatment of testing does not seem to account for the well-known fact that rapid tests were available, and that rapid testing was widespread and supported by public funding, and officially promoted as an immediate screening tool. The official line in late 2020 and early 2021 was not that testing was a flawed fallback—to the contrary, it was that testing was a primary mitigation strategy.

Mostly, this opinion is surprising because it approved a mandatory vaccine program on anti-SLAPP grounds. That is a pretty aggressive approach. And the court did it in a published opinion. Look for this one to go up to the Supreme Court.