Diversity & Inclusion

Comments and tweet using variation of ‘n’ word are protected speech

by Michelle Lee Flores

Actor and writer Marlon Wayans’ use of the term “nigga,” his comments referring to an actor’s “afro” and comparing him to a black character on Family Guy, and his tweet, including a side-by-side photo comparison of the actor and the Family Guy character, were all protected speech, according to a trial court and the California Court of Appeal.  First Amendment

The court of appeal agreed with Wayans that his actions were part of the creative process of improvisation, character development, and writing that resulted in the birth of a character for a film he was starring in, and the tweet was in furtherance of and promotion of the film.

As is explained below, perhaps Wayans’ saving grace was that the term “nigga” was liberally used throughout the film. He uses the word as a term of affection, even to those who aren’t of African-American descent, and his comments about the plaintiff, an actor who worked one day on the film, resulted in the development of a character for the film.

What’s in a name? A lot, yet not

On September 4, 2013, Pierre Daniel, an actor, worked one day as an extra on a movie titled A Haunted House 2. Wayans cowrote, produced, and starred in the movie. In August 2014, Daniel sued Wayans and others, alleging he was the victim of racial harassment because during his one day of work on the movie, he was compared to a black cartoon character, Cleveland Brown from the show Family Guy, and called “nigga.” Wayans allegedly subjected Daniel to “offensive and derogatory language regarding his race/national origin,” such as repeatedly referring to him “in a demeaning manner, as ‘Nigga'”; “repeatedly mocking [Daniel]’s ‘afro'”; routinely leering, staring, and rolling his eyes at Daniel; ridiculing him in the presence of other crew members; and treating him “differently, disparately, and negatively because of his race/national origin, including making demeaning, abusive, and derogatory comments and gestures.”

A second set of alleged harassing actions were made via Twitter when Wayans posted a picture of Daniel, which he allegedly took without his permission, alongside Cleveland Brown with the following comments: “Tell me this nigga don’t look like . . . THIS NIGGA!!! Ol [C]leveland Brown ass lookin @ahhmovie 2 @whatthefunny I’m hurtin!”

Wayans asked the court to dismiss Daniel’s claims against him by having the complaint deemed a strategic lawsuit against public participation (SLAPP)—in this instance, a strategic lawsuit against Wayans’ First Amendment right to free speech. Wayans argued that all of Daniel’s claims arose from his constitutional right to free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet.

The trial court agreed and found that Daniel had failed to establish the probability that he would prevail on any of his claims. As a result, the trial court dismissed the complaint, entered judgment in favor of Wayans, and awarded him his attorneys’ fees.

Creative process can take offensive turns

Daniel appealed the trial court’s decision, arguing that it erred in its determination that Wayans’ conduct was part of the “creative process” inherent in making the movie. He argued that because Wayans’ actions occurred when the cameras weren’t rolling, they didn’t involve the right to free speech or an issue of public interest. In the alternative, he maintained that even if the conduct at issue implicated Wayans’ right to free speech, he presented sufficient evidence to establish a probability of prevailing on his claims.

At trial and on appeal, Wayans argued that he met his burden (under the state’s anti-SLAPP statute) because his creative spark in referring to Daniel as “Cleveland” resulted in the birth of a character in the film; his use of the word “nigga,” a term liberally used throughout the film, helped advance or assist in the creation of dialogue for the film; and by promoting Daniel in the Internet and Twitter post as a Cleveland Brown lookalike, Wayans helped promote the film. The motion was supported by three declarations: one by Wayans himself; one by the movie’s leading actress, Jaime Pressly; and one by Rick Alvarez, “a producer and cowriter” of both A Haunted House 2.

Wayans admitted to joking with Daniel about his resemblance to the cartoon character Cleveland Brown, which resulted in him naming the character that Daniel played “Cleveland.” In addition, Wayans, Pressly, and Alvarez all admitted that not only does Wayans use the term “nigga” throughout the film, but he also uses it to refer affectionately to people who are Caucasian and of Latin descent. The court of appeal agreed with Wayans that the on-set improvisation and “joking around” constituted a key part of the creative process of A Haunted House 2 as well as his other movies because the scripts are often simple outlines of the scenes and the on-set improvisation creates the final product.

Wayans submitted evidence that Daniel never objected or stated that he was uncomfortable when he joked with him, took his photo, or posted it on Twitter. Pressly confirmed that Daniel posed for the picture and joined in the laughter. Alvarez confirmed that the actors were encouraged to improvise, ad-lib, and have fun as part of the creative process and that the movie has a scene that “explores the idea that the use of the terms ‘nigga’ and ‘nigger’ are sometimes considered socially acceptable for black people to use but not people with other racial backgrounds.” He also confirmed that Daniel executed a voucher acknowledging the use of his image and allowing worldwide use of photos for any reason in connection with the movie. Given that set of circumstances, the court of appeal noted that the exercise of free speech was central, not incidental, to Daniel’s alleged injuries, and Wayans therefore satisfied his burden under the anti-SLAPP analysis.

The court of appeal noted that Daniel didn’t dispute the creative process or the voucher allowing the use of his image. By failing to do so, he didn’t meet his burden under the anti-SLAPP process to demonstrate a reasonable probability of prevailing at trial on the merits of his claims. Accordingly, the court of appeal upheld the trial court’s judgment in favor of Wayans and the dismissal of his action. Daniel v. Wayans (California Court of Appeal, 2nd District, 2/9/17).

Bottom line

I saw the Twitter post—Daniel really does look like Cleveland Brown. All kidding aside, if you are an employer in a creative industry, the use of terms in the creative process that may be deemed inappropriate in Michelle Lee Floress at Cozenanother context could be protected free speech sufficient to shift the burden back to the offended employee to demonstrate a reasonable probability of prevailing at trial on the merits of his claims. If he’s unable to do so, the court will dismiss his claims.

Michelle Lee Flores is an attorney with the Cozen O’Connor, practicing in the firm’s  Los Angeles, California, office. She may be contacted at  mflores@cozen.com.