David E. Wright is a J.D. candidate, 2021 at NYU School of Law.

While few are likely to regard Marlon Wayans as an artistic trailblazer, he has potentially inadvertently managed to assert himself as a champion of creative freedom.  A claim of racial harassment by an extra on the set of A Haunted House 2 was recently resurrected against Wayans.  The extra, Pierre Daniel, alleged onset harassment from Wayans ranging from mocking Daniel’s hair to referring to him as a “black fat a**” and “n***a.”  Importantly, Wayans also mocked Daniels on the basis of an apparent resemblance to Cleveland Brown, an African American character from famed adult cartoon Family Guy.  This observation of Wayans’ was broadcast beyond the set when Wayans tweeted photos juxtaposing Daniel and Brown, captioning the tweet, “tell me this n***a doesn’t look like…THIS N***A!!! Ol’ Cleveland Brown a** lookin,” and attaching a link to the social media sites for his filmDaniel sued on claims including racial harassment and Wayans moved to have the case dismissed on the basis of California’s anti-SLAPP statute.  SLAPP suits, or strategic lawsuits against public participation, are those filed in an effort to chill or punish one’s exercise of constitutionally protected speech; anti-SLAPP statutes are designed to provide an expedient remedy for dismissing such suits seeking to abridge constitutional rights.  In 2014, the trial court granted Wayans’ motion, dismissing the case and awarding him attorney’s fees of nearly $100,000.  In 2017, the Second Appellate District affirmed the trial court’s finding in a lengthy opinion that promulgated an expansive protection for free speech within creative environments.  See Daniel v. Wayans, 8 Cal. App. 5th 367 (2017).

An anti-SLAPP analysis is a two-step procedure: first the defendant must make a threshold showing that the complained of conduct arose from protected activity.  In this context, a cause of action arising from protected activity means if “the defendant’s acts underpinning the plaintiff’s cause of action involve[s] an exercise of the right of petition or free speech.”  See Gerbosi v. Gaims, Weil, West & Epstein, LLP 193 Cal.App.4th 435, 443 (2011).  Following that showing, the court must consider whether the plaintiff has demonstrated a reasonable likelihood of prevailing on the merits at trial.  The appellate court rejected Daniels’ argument that race-based harassment is not a protected activity, because the misconduct was precisely Wayans’ exercise of free speech, namely the off-camera creative process behind a film.  Dispensing with the on-set comments, the court argued that the creative process extends to unrecorded moments particularly on projects for which constant improvisation and joking informs said process.  Reinforcing this point, the court pointed to outtakes from Daniel’s scene in which Wayans jokes about Daniel’s hair and refers to Daniel’ character as Cleveland.  The evidence indicated that Wayans’ comments were a part of his creative process aiding in the exercise of his free speech: creating A Haunted House 2.  Regarding the tweet, the court found that it constituted a comment made in a public forum on an issue of public interest and thus fell under the jurisdiction of the anti-SLAPP statute.  Wayans’ twitter was publicly accessible hence the determination that it was a public forum, and the standard for whether or not something constitutes a public issue is so low that listing a producer’s credit has been found to be protected under the anti-SLAPP law.  See Kronemyer v. Internet Movie Database Inc., (2007) 150 Cal.App.4th 941 (2007)Subsequently, the court determined that posting about the production of the film was a matter of public interest and protected activity.

In the second step of the analysis, it was determined that Daniels’ did not have a likely chance of succeeding on his claims of racial harassment.  Notably, the court engaged in an analysis of the contextual differences between “n****r” and “n***a,” finding that the latter is not “an unambiguous racial epithet,” particularly when used among members of the same race.  The opinion posited that a reasonable black actor in Daniel’s position would have been on notice that racially charged language is likely to be used onset due to Wayans’ career and reputation and would not have been offended.  A dissenting opinion by Justice Liu noted a significant issue with the majority’s analysis: Daniel was not a willing participant in the creative process. 

In September 2019, the California Supreme Court instructed the appellate division to review the case in light of FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133, 246 (2019) and Wilson v. Cable News Network, Inc., 7 Cal.5th 871, 249 (2019).  In these cases, the California Supreme Court refocused the anti-SLAPP inquiry on both the content and context of the challenged speech, with an emphasis on whether or not a statement engages with something of public interest rather than merely referring to it.  Consequently, privately disseminated statements that may have been of interest to the public were not found to arise from protected activity.

The Second Appellate District doubled down on its previous opinion, declaring numerous public issues were directly implicated by Wayans’ conduct, including Wayans himself, the making of A Haunted House 2, and, strangely, the use of the word “n***a.”  See Daniel v. Wayans, Cal. App. Unpub. LEXIS 729(2020).  In satisfying the FilmOn requirement that speech contribute to some public conversation on the issue of public interest, the court argued first that Wayans is of public interest and his onset comments furthered his reputation, style, etc. by aiding in creating A Haunted House 2.  Then it goes on to state that his use of “n***a” contributed to the public conversation around the permissible contexts in which the word can be used.  Despite the initially limited audience of these comments, which might suggest private dissemination, the court pointed to Daniel’s character being named Cleveland in the film as evidence of public engagement.  As for the tweet, the court handwaves its way through an analysis that boils down to: Wayans is popular, the film was sort of popular, so posting about it was an issue of public interest and, in posting, Wayans contributed to the public discussion about the film.  On these bases, the prior judgment was affirmed.

While Wayans can claim victory, observers concerned about harassment in the entertainment world are likely to be concerned.  With so much contemporary discussion surrounding power imbalances in working relationships, it seems alarming that the “creative” forces on film sets, generally in superior roles, are free to harass anyone on set in the name of artistic freedom.  With no articulated boundaries, one can easily imagine scenarios in which sexual harassment against a caterer or a production assistant is permissible because it might influence a joke that is incorporated into a film.  More disconcerting is the court’s assertion that merely stating an offensive term in the context of a creative environment, like a film set, is somehow contributing to the public discussion on what terms are appropriate when.  Wayans did not intend to contribute to this discussion, and his specific use of “n***a” does not appear to have contributed to the development of Daniel’s character as the court suggests.  If so compelled, one could have pointed out the resemblance to Cleveland without using a racial epithet.  Wayans’ subsequent tweet is given blanket protection simply because it was a tweet by him and accompanied by a link to the film’s social media.  The court’s logic gives carte blanche to artists looking to harass others as long as it can be tenuously connected to the promotion of their art.  The regulation of art must always be approached cautiously, but there must be some clearer line as to where the creative process ends and a professional environment begins.