Read More: Marlon Wayans Defeats Claim of Racial Discrimination/Harassment
February 13, 2017
by Jerry Glover
Comedian and actor Marlon Wayans has prevailed against a claim by an African-American man hired as an extra on the set of Wayans’ film “A Haunted House 2” that Wayans racially harassed him. <em>Daniel v. Wayans</em>, 2017 WL 526494 (Cal. App. February 9, 2017). The plaintiff claimed that Wayans called him “nigga” several times on the set of the film. Plaintiff noted that Wayans comments about him came when the cameras were not rolling on set. He also claimed that Wayans racially harassed him by sending a Twitter post that used a photograph of the plaintiff next to a drawing of the cartoon character Cleveland Brown who appears in the cartoon series “Family Guy.” The Twitter post is below:
— marlon wayans (@MarlonWayans) September 4, 2013
The basis of Wayans’ defense was the California SLAPP statute (SLAPP stands for “strategic lawsuit against public participation”). The statute is used as a defense when the defendant believes that the plaintiff’s lawsuit seeks to chill or punish the defendant’s exercise of his/her right to some protected activity—in this case, free speech.
In order to determine whether a situation is appropriate for a SLAPP suit, the court has to determine (i) whether the defendant has made a threshold showing that the plaintiff’s cause of action arises from protected activity (in this case, speech) and (ii) whether the plaintiff has demonstrated a reasonably probability of prevailing at trail on the merits of his claims.
The trial court ruled in Wayan’s favor finding that the plaintiff was not likely to prevail on his claims against Wayans.
On appeal, the court agreed that the activity the plaintiff complained of was a protected speech activity within the context of a motion picture, an important organ of public opinion. In addition, at least as plaintiff told the story, Wayans speech was central to plaintiff’s claim and alleged injuries not incidental to it.
Wayans and his witnesses had explained that a lot of the movie was improvisational. Wayans presented the court with the transcript of three different takes for the one scene in which the plaintiff appeared. These transcripts showed Wayans using the term “nigga” to refer to Daniel in the scene and making disparaging remarks about Daniel’s “Afro” hair style. Wayans even gave Daniel the name of “Cleveland” for the movie because of Daniel’s resemblance to that cartoon character.
Daniels claimed, however, that Wayans referred to him as “nigga” several times off set and argued that off-set harassment is not covered by the SLAPP statute since it was not part of the motion picture. But the appeals court noted that the improvisational nature of the film led the actors to joke around on the set as part of the creative process which created a light, funny atmosphere which contributed to the creative process. The court added that “Cleveland,” the name Wayans gave to Daniel came from the creative process that occurred when the cameras were not rolling.