About Us  |  About Cheetah®  |  Contact Us

Anti-SLAPP law protects use of ‘ni**a’ in movie’s creative process

By Lorene D. Park, J.D.

Granting actor/producer Marlon Wayans’ motion to strike claims by a movie extra that Wayans’ comparing him to a cartoon character, making fun of his afro, and repeatedly calling him “ni**a” created a racially hostile work environment and caused emotional distress, among other claims, a California Court of Appeals agreed with a trial court that the suit was barred by the state’s anti-SLAPP statute. The movie on which they were working involved a lot of improvisation, poked fun at racial stereotypes, and the alleged harassing conduct was part of, and arose from, the protected creative process. An award of $96,040 in attorneys’ fees to Wayans under the statute was also affirmed. Judge Lui dissented in part (Daniel v. Wayans, February 9, 2017, Johnson, J.).

According to a movie extra who worked for a single day during the production of A Haunted House 2, Wayans—who co-wrote, produced, and starred in the film—created a racially hostile work environment by comparing him to a Family Guy cartoon character named Cleveland, mocking his afro and his weight, and repeatedly calling him “ni**a.” In addition, he claimed Wayans’ misappropriated his likeness and presented him in a false light by posting on the Internet his picture juxtaposed to the cartoon character’s picture, along with the caption “Tell me this ni**a don’t look like . . . THIS NI**A!!! Ol cleveland Brown ass lookin @ahhmovie 2 @whatthefunny I’m hurtin!” The plaintiff asserted other claims against Wayans as well, including intentional infliction of emotional distress, unjust enrichment, and breach of contract.

Improvisational comedy. Moving to strike the claims under California’s anti-SLAPP law, Wayans argued that they implicated his constitutional right of free speech because the core injury-producing conduct arose from the movie’s creation and Internet promotion. Wayans submitted affidavits from himself, the main actress, and the co-writer and co-producer, all of which explain that the movie scripts were little more than outlines of scenes and that much of the movie was “improvisational in nature,” meaning that “the actors and actresses spontaneously make up jokes as they go along.” Moreover, many of the jokes involved making fun of various stereotypes, including racial stereotypes. As a result, the word “ni**a” was used “dozens of times throughout the movie,” including in reference to Caucasian individuals. The evidence also indicated that Wayans found the plaintiff’s likeness to the cartoon character so striking that he actually named the plaintiff’s character “Cleveland” in the movie as well.

Anti-SLAPP principles. Granting Wayans’ motion, the court explained that Section 425.16, known as the anti-SLAPP statute, is a remedy to dispose of lawsuits brought to chill the valid exercise of constitutional rights. A suit will be disposed of as a SLAPP (strategic lawsuit against public participation) if: (1) a defendant shows the act underlying the suit is a protected activity fitting in one of the categories of Section 425.16(e); and (2) if the defendant makes this showing, the plaintiff demonstrates a reasonable probability of prevailing on the merits of his causes of action. Here, Wayans argued that the conduct underlying the suit was protected by two categories of subdivision (e) because it involved a statement made in a place open to the public or a public forum in connection with an issue of public interest and because it was conduct in furtherance of the exercise of free speech in connection with an issue of public interest.

Core alleged misconduct was central to free speech. While the plaintiff argued that Wayans’ conduct necessarily fell outside anti-SLAPP protections because race-based harassment cannot be a protected activity, the court disagreed. Movies and films generally are considered “expressive works” subject to First Amendment protections. And while discriminatory acts that are incidental to the exercise of free speech may not be protected, the allegedly harassing speech here was central to the exercise of free speech. Moreover, it was on a matter of public interest, as demonstrated by the popularity of Wayans and the success of the prequel to A Haunted House 2.

Off-camera statements part of creative process. Also rejected was the plaintiff’s argument that the speech at issue was not protected because much of the use of the word “ni**a” and other alleged harassment happened while the camera was not rolling. This, said the court, was “an unreasonably narrow or constrained view of the creative process” and it was flatly contradicted by the undisputed testimony from Wayans, the main actress, and the co-writer, who affirmed that the creative process for this movie was highly improvisational and joking around on set was part of that process. Thus, the alleged racist epithet and harassing conduct was part of, and arose from, the protected creative process. The court noted that the plaintiff’s character was born and named from the off-camera comments, directly linking those to the film’s creative process.

Internet posting also protected. As for the Internet posting, the court found that the juxtaposed pictures of the plaintiff and Cleveland Brown cartoon with the caption were posted on a Twitter account that had over a million followers, so it was a statement made in a public forum. And once again, given Wayans’ popularity, his number of followers on Twitter, and the interest in the movie’s website, the posting was on an issue of public interest.

Plaintiff didn’t show probable success. Because the alleged misconduct was protected activity, the question became whether the plaintiff showed a reasonable probability of success on his claims. Addressing each claim in turn, the court found that he did not. With respect to his racial harassment claim under the California Fair Employment and Housing Act, he failed to show the alleged acts created an abusive environment. For one thing, this case did not involve the term “ni**er,” it involved the term “ni**a,” which the court explained is “not an unambiguous racial epithet in today’s world, especially when used intra-racially as it was here.” Also, a reasonable black actor who agreed to participate in a comedy addressing racial stereotypes and starring an actor known for use of the word “ni**a” would expect that such language might be used. That raised doubt about his probable success. What proved fatal to the claim was the lack of evidence that the alleged harassment had any adverse effect on the plaintiff’s work performance.

The appeals court also found that the lower court properly struck the other claims. With respect to misappropriation of the plaintiff’s name and likeness, he waived the claim by signing a voucher with a broad release consenting to the use of his image in connection with the movie. Plus, Wayans’ transformative use of his photograph established a complete defense. The false light claim also failed because the Internet posting merely referred to the plaintiff’s resemblance to the Cleveland Brown cartoon and did not imply that he shared any personality characteristics or was the real-life incarnation of the cartoon figure. His emotional distress claim also failed because the conduct at issue was not so extreme as to exceed all bounds of decency.

Partial dissent. Although Judge Lui agreed with the majority of some of the majority’s conclusions as to the scope of the creative process and the scope of the release signed by the plaintiff, he did not believe that all of the onset conduct was in furtherance of Wayans’ constitutional right to free speech. It was significant that the plaintiff was not a collaborator in the crass brainstorming and that he was the target of, not a participant in, the demeaning and offensive humor. “While improvisation and racially tinged bantering might be a part of Wayans’s creative process, there is no reason to believe that this process must include conduct amounting to racial harassment of a subordinate employee.” Judge Lui also believed the plaintiff showed a reasonable probability that he would prevail on intentional infliction of emotional distress claim.